On Tuesday, the English Football Association announced that Liverpool striker Luis Suarez had been found guilty of misconduct, arising from the incident with Patrice Evra during LFC’s fixture with Manchester United on October 15, 2011.
The statement from the FA reads in part:
The Independent Regulatory Commission announced its decision on 20 December 2011, which is as follows:
- Mr. Suarez used insulting words towards Mr. Evra during the match contrary to FA Rule E3(1);
- the insulting words used by Mr. Suarez included a reference to Mr Evra's colour within the meaning of Rule E3(2);
- Mr. Suarez shall be warned as to his future conduct, be suspended for eight matches covering all first team competitive matches and fined the sum of £40,000;
- the [penalty] is suspended pending the outcome of any appeal lodged by Mr Suarez against this decision
Suarez has proved to be a polarizing figure in his brief 11 months thus far in England. This is really a shame because everyone would agree, he’s a fabulous talent and the English game is much better for having him.
The following is a brief discussion why the penalty is too harsh.
Befitting the divided opinions on the player, there are a range of opinions on whether the penalty was just or not. Let us first acknowledge that the FA has yet to release the full report of the committee, and as such any discussion of the propriety of the penalty would be premature.
That said, this promises to be a watershed moment in English football, and we would do the moment a disservice were we to not remove the emotion from the conversation and try to objectively assess the situation.
Looking beyond Suarez, we need to think of future situations and how such a precedent-setting ruling may impact future incidents. Is the weight of the evidence that convincing as to warrant such a steep penalty?
Would a league player from the lower tiers of English football be able to afford the sum of £40,000 or an eight-game ban? Or are we trying to justify/criticize the penalty because it is Luis Suarez and Liverpool involved? This is the danger of overreacting to the situation, which I fear is precisely what the FA has done.
Reading's John Mackie (left) in action against Chelsea
Violent conduct on the field merits a three match ban, as West Brom’s Gabriel Tamas found out earlier this season. Antolin Alcaraz incurred a similar penalty after he admitted a charge of spitting at an opponent, as did Barnet’s Charlie Taylor.
Hard to say whether mouthing words with racial overtones are anywhere as destructive to the game as players spitting at opponents or engaging in violent conduct on the field. The FA would have you believe just that, however, judging from the respective penalties.
In 2003, Reading's John Mackie was banned for eight games, five of which were suspended, after he admitted racially abusing the Sheffield United striker Carl Asaba in a match in 2002. This is as close a precedent as can be found.
On the surface then, the Suarez penalty seems consistent, but further review shows that Mackie’s penalty was in fact just three games after the aforementioned reduction on appeal.
It is instructive to note that this was a situation where Mackie readily admitted to the charged conduct, so the question of intent was never in doubt. Yet he only got a three-game ban.
Most have conceded that Suarez didn’t intend anything racist by what he said, and no, this does not make him innocent—if he used words in contravention of FA policies then he should be disciplined.
Clearly, however, intent must be factored into the equation when assessing the degree of culpability by the player. Culpability is perhaps the greatest determining factor when assessing the penalty. An accidental transgression reasonably should not be punished the same as a deliberate flaunting of the rules.
If Mackie's deliberate racist actions merited only a three-match ban, then it is impossible to reconcile Suarez's unwitting violation of the rules with the subsequent eight-match, £40,000 fine penalty.
All eyes now turn to the John Terry inquiry
As stated earlier, this promises to be a watershed moment for the sport, and there will be a clear deterrent effect going forward. In the judicial system, deterrence is dual-pronged—there is specific deterrence (to the actor), and general deterrence (to society at large).
Without a doubt Luis Suarez will mind what he says going forward, and certainly others, similarly situated as the Uruguayan striker will do the same. The FA will certain achieve the desired deterrent effect stemming from the ruling.
How far is too far, however? Assuming that Suarez is every bit as guilty as his harshest critics insist, was he on notice that he faced such a steep penalty? As a practicing attorney, I know better than most that “ignorance of the law is not an excuse.”
There’s a certain element of strict liability at play in this situation. What is acceptable in Uruguay isn’t necessarily acceptable in England—to answer proponents of the “cultural differences” defense. Still, there has to be a clearly delineated policy in place that if you violate the rules, "X" is the penalty.
Any deviation from a clear and consistent policy leaves the FA open to criticism that its actions are arbitrary and capricious. For an organization with such an Orwellian reputation for vague, ambiguous and at times inconsistent rulings, this incident threatens to further undermine the Association’s reputation.
This is why the full report should be released without delay and why a much clearer explanation is necessary, rather than the vague, cryptic missive presently offered. Suarez deserves better, LFC deserves better, the sport deserves better—and the issue of racism on the field, deserves a better response.
The FA needs to do the following:
Develop a clearer, more consistent policy regarding the issue of racism in English Football.
• Clearly spell out what conduct is prohibited
• Establish the defenses available to the accused
- Mitigation, such as cultural ignorance
• Offer reduced penalty for reduced culpability where there is no clear intent to violate the rules
• Settle on penalties that can be consistently applied throughout all of English football
• Have a more transparent process where fans can at least feel that they are part of the process, or have better insight as to the process:
- What are the facts?
- What factors go into the determination of assessing guilt and levying penalties?
Until this is done then the already compromised reputation of the Football Association will continue to be battered in the press, and more importantly, in the court of public opinion.