Sunday, 30 December 2012

New Year's Resolutions

After a tumultuous 2012 here's a wishlist of changes to football for 2013. Some may be about to happen, many never will and some simply must.

Firstly Arsenal FC need to find some new defenders - did you see their defence against Newcastle? Theo needs to sign a new contract in January and buy into the new vibrant young GB side 'In Arsene We Trust' is assembling.
Rock Required


The FA needs to greatly increase the available sanctions for racist abuse by players/managers. Clubs need to incorporate termination/compensation clauses into contracts for racist abuse. The game cannot be further tarnished by episodes such as 'Terry' and 'Suarez'. I am not confident this will happen. I salute Milan for taking their players off the field when Kevin Prince Boateng was racially abused. It was though a friendly. Would FIFA support them otherwise?

Sepp Blatter's first act of 2013 should be to resign forthwith. His contribution to the 'Beautiful Game' is entirely negative. His successor should come from outside FIFA.

Countries which fail to properly offer equality for women players should be banned from all international tournaments.

FFP must be adhered to and enforced (I am after all an Arsenal fan).

ITV Sport should be discarded from the schedules.

Proper tackling and contact should be allowed to return. Gareth Bale and other miscreants should decide if they are man enough to play football or find another sport.

Man Up

With that in mind simulation should be a red card offence with 3 game bans.
To assist with the above the use of technology should be extended to all 'goal decisions', simulation incidents, red and yellow card calls and off the ball incidents.

Officials' microphones should not only be recorded, but published when players are abusive to referees or each other. Abuse would rapidly die out. Similarly what is said in the technical area should be broadcast. Managerial contributions are hardly rocket science. It might even be illuminating.

Shirt pulling in the box should result in a penalty.

Goalkeepers should no longer be treated like an endangered species.

Gary Neville should be on MOTD.
Lawrenson, Savage and Shearer definitely should not. Elsewhere we don't need Townsend, J Redknapp, Niall Quinn and many others. Keown has potential.

Serbia should receive its just desserts for racist abuse.

Women's football should feature on Football Focus and have weekly terrestrial shows. We should also have access to the National Women's soccer League when it commences in USA.
Lianne Sanderson should return to the England Women's Football team. This might require changes at the top.
My England Wish


A new vibrant young England team featuring Wilshere, Chamberlain, Walcott, Gibbs (of course), but also Jones, Smalling, Welbeck and Sterling to name but a few.

Fan representation on every board.

An end to the managerial merry go round. Introduction of a form of Rooney Rule to give all talent a chance. End to knee jerk sacking of managers (Forest, Blackburn), but also terrible appointments - Hughes, McLeish ...
However also an end to managerial excuse making, abuse of referees and negative tactics.

An end to interviews with English players (most) which are frequently embarrassing and tedium personified.

I forgot about gloves - they should never be seen on a football pitch - possible exception for goalkeepers!

Happy New Year!

Sunday, 2 December 2012

'Rock Against Racism'

Anthony Clavane's Sunday Times 'Think Tank' started me thinking. A few weeks ago I attended the 'Football, Leadership and Race Debate' at the Stephen Lawrence Centre. Amongst the passion and the articulate voices, I detected a noticeable subtext. People felt that high profile figures should have made their voices heard. The KIO t - shirt protest (Jason Roberts etc) was welcomed. It was a start. A ripple on a seemingly calm pond.
At that point we had endured Suarez and Liverpool's embarrassing t - shirts, the infernal Terry affair and the tepid sanctions which left a nasty taste with many. Clattenberg was exploding on our consciousness, but his case was perhaps a red herring. But we had not had some West Ham 'fans' (a tiny sick minority) invoking the Holocaust to mock Spurs fans. Similarly some Millwall now seem to want to reignite a previous reputation. An under 15s football match in Leicester is alleged to have degenerated into racist abuse by supporters (parents?) The referee is accused of not reporting the incidents. To our mutual shame racism appears to be alive and well in Great Britain.
Mr Clavane called for a 'Football Against Racism' campaign to support victims and to raise awareness. Top stars would tour the country and football mad rock stars would play anti racism specific concerts. He invoked the Rock Against Racism campaign of principally the 1970s.
He had been involved in the Dark Ages - the 1970s - when extremism was on the rise, the National Front was making electoral headway, football matches were battlegrounds with the enemy being the opposing fans or the Police.
Back then Eric Clapton made appalling public statements at a concert praising Enoch Powell (I dont think I need to mention him further) and declared that 'we' should 'Keep Britain White'. I had forgotten this. It seems almost laughable, a man who made millions from black music. But this was no laughing matter. I was shocked to learn that David Bowie also, for a time, embraced fascism. He later recanted and blamed his sentiments on excessive drug use.
In the late 1970s people with soul fought back. Musicians sent a letter to the NME calling for a Rock Against Racism Concert. It struck a chord. In Spring 1978 (30/4/78) 100,000 people marched from Trafalgar Square to Hackney (the East End being an NF heartland) and attended an open air concert  organised by RAR and the Anti Nazi League. Steel Pulse, The Clash, The Buzzcocks, Sham 69 and The Tom Robinson Band stood up. In South London Elvis Costello, Stiff Little Fingers and Aswad played a similar gig.

http://www.youtube.com/watch?v=UqJziLpnkEU

Back then Tony Benn was a Labour Minister. He fell out with Harold Wilson because Wilson did not want the issue of racism to feature in the election. does that sound familiar today with the approach of the football authorities? Benn said 'When you get to my age, you realise that every generation has to fight the same battles'.

Is now the time to take sides? Will high profile figures embrace this, join in and stand in solidarity. Who would lead this? Is the current softly softly approach of the authorities effective?
There are many good things being done by the the PFA, LMA, KIO and FARE. But do we feel that the tide is travelling in the right direction? I sense that some do not feel confident that the future is brighter than the past in spite of the gains. Would be fascinated to hear people's views.

Wednesday, 21 November 2012

Manipulation

Ferrari's desperation to take the Formula 1 Driver's World Championship 2012 to the final race in Brazil next month has caused them to take extraordinary measures. At the US Grand Prix, the penultimate event of the season, in Austin Texas, Fernando Alonso qualified 9th on the grid. His team mate, Felipe Massa, unusually out qualified him in 6th. Romain Grosjean, of Lotus, was then relegated 5 places as a result of an enforced gearbox change moving Alonso up one place on the starting grid to 8th.
Grosjean's predicament also had the consequential effect of moving Alonso from the uneven to the even starting side of the grid. The peculiarities of the Circuit of the Americas, newly created for this event, were such that the uneven side of the track was considered to be more slippery and therefore more difficult to get a satisfactory getaway from. Team calculations suggested that this disadvantage might mean the surrender of as much as 2 places at the start of the race. Desperate times called for hard nosed cunning.
The only way for Ferrari to improve Alonso's grid placing and also to move him to the advantageous side of the track was to effectively shunt Massa aside.
Shunted Aside

They achieved this before the race by blatantly taking advantage of a F1 rule designed to curb expenditure on equipment during the course of the season. The rule states:
Each driver may use no more than one gearbox for five consecutive events. Every unscheduled gearbox change will require the driver to drop five places on the grid at that meeting. Every subsequent unscheduled gearbox change will require the driver to drop five places on the grid.
Following the letter but not the spirit of the regulation, Ferrari broke a seal on Massa's gearbox and thereafter changed his gearbox. This action attracted the 5 place FIA penalty for Massa, moving him down to 11th on the grid and elevating Alonso by one place to 7th and onto the faster uneven numbered side of the track. Massa was screwed but Ferrari's 'higher goal' was achieved. Ingenious.
Massa 'generously' accepted this. It was apparently a team decision. What choice did Massa have in reality? In other Grand Prix previously he has moved aside to allow Alonso to pass at a crucial moment, following 'team orders'. He is seen as the inferior and supportive team mate, unthreatening to the team leader and there to do a job for the team. His 'acceptance' on this occasion almost certainly guaranteed his Ferrari drive for next season in spite of being consistently outperformed by Alonso, and by a considerable margin for the past 2 seasons.
Was Ferrari's move legal? Yes. It was within the rules and it was done openly. It does not compare with Benetton's deliberate and highly dangerous crashing of Nelson Piquet Jnr's car at the Singapore Grand Prix in 2008, an outrageous and much vilified manoeuvre designed to achieve a safety car deployment for the benefit of Alonso (again - although he was unaware of the ploy).  Ferrari's action was however highly cynical. It was a ploy taken from the 'win at all costs playbook'. Greg Chappell would have heartily approved. We should not applaud.
The consequence of this manoeuvre was that in transferring Alonso up the grid and across the track they caused other competitors to find themselves shifted in the opposite direction. So Grosjean, Hulkenberg and Senna now found themselves disadvantaged on the slippery starting side.
What would have happened if other teams had pulled similar stunts? The integrity of the race would have been shot to pieces. Was it anyway? This is not the same as F1 teams' constant probing for the slightest technical advantage on the edges of the rules. This was not within the spirit of the game. Unfortunately no such rule exists in F1 and the regulation was not drawn tightly enough.
Ferrari were able to profit because they have the resources to not to bat an eyelid at the damaging of and changing of a gearbox. Other more cash strapped competitors might not have the same possibilities. The rulebook needs revising swiftly. There is no sporting glory in this.

Sporting Glory? 

Fortunately for Ferrari and F1 none of the 'big boys' was shunted across the track. Martin Whitmarsh of McLaren took a sanguine approach, but Ferrari's move did not affect McLaren and they did go on to win the race through Lewis Hamilton. He mused
"Sadly it didn't impact on us at all - we were on the slow side of the grid and stayed on it - but if I had earned a place on the fast side of the grid and that had put me on to the slow side I would have been pretty exercised about it."

Thursday, 15 November 2012

12 Hours in Cell for 'Late Tackle'

For 25 years in the relaxed atmosphere of Bermuda ex international rugby union players have gathered for the Bermuda World Classic tournament - an annual series of 10 international matches. This year's tournament features, inter alia, Shane Williams and Percy Montgomery.
The general camaraderie and bonhomie has lately been shattered by the arrest of former Springbok Prop Robbie Kempson on suspicion of assault. Kempson spent 12 hours in Police Custody before being released, initially on bail. The matter was being reviewed by a prosecutor, but it has subsequently been announced that Kempson will not face charges.
Kempson is alleged to have charged into the back of USA Fly Half Leif Gibson (34). The USA say that this was an off the ball incident. Kempson denies this and asserts that it was part and parcel of a contact sport. Gibson was removed on a stretcher with a neck brace.
Player Feared the Worst

Kempson was not sanctioned during the game and has not been cited since.
Kempson does have 'previous'. In 2003 he was cited for a late and dangerous high tackle in an international v Australia which caused a 'spinal concussion' and banned for 4 weeks. Kempson appeared in 37 tests between 1998 and 2003.
Why did the Police become involved?
The american team and the player complained to the Police. The coach in fact rather dramatically suggested publicly that Gibson might not play again as a result of a significant spinal injury. Gibson was in fact up and walking at the time, albeit in extreme discomfort.
The prosecutor decided that there was nothing which took this situation out of the ordinary context of a contact sport.
In the UK criminal prosecutions are reserved for those situations where the 'conduct is sufficiently grave to be properly categorised as criminal'. Relevant factors according to Woolf LJ in Barnes might include, inter alia, the sport and level of the participants, the nature of the act, the degree of force used, the resultant injury or consequent risk of injury, and the intention of the perpetrator. Prosecutions are rare. Nonetheless those engaging in off the ball incidents are flirting with a danger which goes beyond the wrath of the governing body. I make no judgement about Kempson, I have not seen any replays or statements.
As we have seen in a number of recent cases, interested 3rd parties, with whatever agenda, can complain and involve the Police. Even if charges do not result, it can be a very uncomfortable place for the accused player whether guilty or not.
Postscript 16.11.12
I am urged by comments to consider the legal liability of such as Kempson if in fact the conduct alleged ie an assault off the ball having nothing to do with the play were to be established. Criminal liability is dealt with above. Criminal proceedings are extremely rare.
Civil liability might be established.
Kempson might, have committed the tort of battery (trespass to the person). This is difficult to prove, requiring an intent to make contact with the victim. Injury would not have to be foreseeable or intended.
Most actions are in negligence. The player owes a duty of car to his fellow participant. He must take reasonable care in all the circumstances to avoid causing injury to another  player. The rules, conventions and playing abilities of those participating are relevant factors in assessing what is reasonable. Nonetheless the test itself does not change whatever the playing abilities of the relevant parties. A momentary mistake or judgement error will not ordinarily found liability. Reckless conduct almost certainly will. The Paul Elliott v Dean Saunders case is perhaps the most well known. Elliott suffered a career ending knee injury as a consequence of a tackle with Dean Saunders. The trial judge found that Saunders had not acted dangerously or recklessly and accepted Saunders case that the contact and consequent injury was an accident as Saunders himself tried to avoid injuring himself.
(Acknowledgement to Sports Law 4th Edition Gardiner & Others 2012)

Saturday, 3 November 2012

Prosecuting for a Sports Governing Body - The Lecture

The Audience (100 delegates at BASL/DMU)
NB these are just my opinions.
Ordinarily my audience is either 3 or 12 depending on the type of tribunal. I am not normally required to conform to the 'chess clock system' beloved of CAS either (this was supposed to last 20 minutes - apologies). That system used by CAS on occasion to police verbose advocates and to ensure completion of proceedings within the day. Advocates have to divide their allotted time as they see fit between examination and submissions.


First thing that strikes me about the title subject is the diversity of panels that one appears before. The greatest change is the influence of Social Media, whether its misuse or evidentially. John Terry's current travails began with YouTube footage complained about to the Police by an off duty officer. Social Media seems to liberate people of their good sense and judgement in a forum where they should be most on their guard. Much of the evidence thus enters the public arena on a massive scale, often instantaneously causing enormous complications for sporting bodies and their prosecutors. A good example would be the Ashley Cole tweet (about the FA) which was swiftly deleted but retweeted nonetheless thousands of times in a matter of moments.
Just this week footage emerged and toured the internet of a Chelsea fan apparently making a 'monkey gesture' to a black MU player. The club and the FA are instantly obliged to confront the issue and to act - the debate had already begun.
The Intrusion of Law and Lawyers
A delegate reminded me of the term 'sporting specificity'. It was after all a room full of lawyers!
My first sporting prosecution was at the BSA. The Chairman of the Panel was a man who had seemingly devoted his entire life to the sport. He was lectured by a certain type of lawyer (I am constrained by friendship from putting a geographical description to this) who insisted on a discourse of case law and the definition of 'disrepute'. Incidentally he handed out business cards in a silver flip tin ('b...h!). A significant amount of time was spent dealing with irrelevant 'legalistic' considerations. No doubt his client was extremely impressed... until the unanimous verdict.
Question of Balance
It was tricky to gauge how much I had to deal with the defence arguments and how much I could trust the Panel to ignore them. Had I known the Panel members, as I would with the majority of Crown Court judges I appear before, it would have been a simpler task. Given the private nature of Sports Disciplinary Tribunals, this familiarity is much harder to acquire.
The Rule Book
The naivety of many sports governing bodies (not yours!) with regard to the drafting of the rules provides an endless source of work and trouble for governing bodies and an equally endless source of material for lawyers.
Arsene Wenger ungenerously ventured the following opinion this week 'If it becomes a sport to make the lawyers rich, I am not a fan of it'.
Just this once I have to take issue with my favourite manager.


One Sports Club/One League
Some while back I was asked to assist a sports club who were at loggerheads with their league. The approach of both sides had created an entrenched situation to the detriment of both.
The league had a strict liability policy with regard to playing ineligible players. Fair enough. The relevant player had been with them forever. Finding himself without a game he played in another lower league without telling anybody and without realising that he was causing any offence. The original club were blissfully unaware. He then played several further  games for them.
The League rule book said that the player could only do this with their prior permission and that he would then have to re - register with them. The sanction, following the rules, was the loss of all points from those further matches. This punishment would consign the club to relegation. In reality the League had no desire to relegate the club, one of their best terms of finances, facilities and general benefit to the League, but they believed that their rules allowed no room for manoeuvre and no scope for mitigation.
I was not allowed to be on the record. I was not allowed to attend any hearing. My existence was not to be disclosed. The club feared that the public intervention of a lawyer would only antagonise the league and inflame the situation. They still hoped for a gentlemanly solution even though they had lost the hearing.
This was rather bad for my own PR.
 Nonetheless I was able to find a way out using the inflexibility of the rule book against itself. There was a provision for new rules where an existing situation was not covered by them. There was a way out that they could not find themselves.
There are 2 points. Participation with sports governing bodies and tribunals requires flexible thinking and the ability to adapt. Rules need to be drafted with a clear understanding of their consequences and occasionally governing bodies have to be helped out of predicaments of their own making.
Recent Events
Football is a limitless source of examples of the good, bad and the ugly.
The FA finds itself buffeted on a daily basis by events.
There is an interesting comparison to be made between 'Suarez' and 'Terry' with regard to the intervention of the Police.
Suarez received twice the punishment, in terms of games, as Terry due multiple offences. He was dealt with relatively swiftly and the matter was over, apart from the PR disaster which LFC engaged in thereafter. There was no complaint to the Police and consequently no criminal proceedings.
Terry, for seemingly arbitrary reasons was prosecuted because an off duty and uninvolved officer complained. The ramifications? A saga to rival 'Peyton Place' (for younger readers 'Downton' perhaps). New developments and consequences on a daily basis often flowing from a decision which was outside of the FA's control. The FA was removed from the driving seat and has been struggling to regain the initiative ever since.
The FA case was delayed by primacy of criminal proceedings, and then by Terry's successful application to adjourn until after the Euros. The FA lost its captain, its manager and its preparation time pre Euros. Football's reputation was dragged through the mud for 12 months.
Compare this with the latest situation - Mark Clattenberg. There now seems to a change of policy and apparently now we can have simultaneous investigations. I sense trouble ahead. What is the policy?
I know that the MC matter only involved the Police after a complaint 24 hours later by the Society of Black Lawyers. I was there when Peter Herbert announced this publicly. Whatever his motives it seems to me that any pressure group could invite Police investigation to highlight their cause or grievance, but this seems to be a very poor determining factor for launching criminal investigations. I sincerely hope that the FA and the Police are working on a Protocol to address this issue in future (Douglas?)
Following Terry's acquittal the FA found itself unfairly under more pressure. There was a sense that Terry was 'getting away with it'. The FA was chastised by the media and commentators for the delay - this was unfair.
The FA were then criticised by, amongst others, black players for the sanctions imposed by the Independent Regulatory Commission (is the process sufficiently independent - a question for another day?).
They were also criticised for publicly stating through the FA prosecution (as they had done with Suarez too) that they were not saying that Terry was a racist per se. In my view this was a definite mistake. It allowed the FA to be portrayed as 'out of touch' and to appear to be standing up for Terry (and Suarez). Many have said that such a stance is incompatible with the use of racist language. Given that they did not need to prove that Terry/Suarez  was racist I cannot understand the decision that was made to take this approach. It was a flase move which continues to haunt them as evidenced by the Kick It Out protests.


In this media dominated age, tactical decisions have consequences far beyond the merits of the tribunal hearing.
Use of Evidence
We had expert lip readers. We had dispositions on the significance of latin american utterances. Is this still football?
New Evidence
The FA hit Terry with fresh 'similar fact evidence' using footage of his lashing out at an opponent in the Barcelona CL Semi final this year as evidence to counter the defence assertion that Terry has 'preternatural reserves of self control'.
Ashley Cole was 'discredited' because a trawl through the email traffic showed 'the evolution' of his evidence.
Cole was interviewed with 2 note takers. Those notes did not accord. In future such interviews will have to be recorded.
It emerged that the FA does not have an established system, procedure or protocol for unused material. Considerable time was lost during the tribunal collating and disclosing hundreds of pages of material at a very late stage. All sporting bodies with significant throughput of  disciplinary matters will need to address these issues.
An Honest Prosecution
Laidlaw QC for the FA Prosecution only invited a conviction against Terry if the Panel found that he had used the offending words as an insult. A flexible and just approach.
Standard of Proof
FA rules have been rewritten since the Terry offence. This may be a common occurrence where there has been substantial delay.  He was tried on the old standard (more difficult to prove). FA standard now is the civil balance of probabilities. They have made things easier for themselves. The previous test was a flexible standard where the 'more serious the allegation the greater the burden of evidence required to prove the matter'.
The End is Nigh
I could go on but the Andy Gray version of the Chess Clock is flying above my head. Please feel free to comment or to contact me at pgibbs@kchgardensquare.co.uk.


UPDATE 13.11.12
The Metropolitan Police have announced tonight that there is no evidence and no victim in respect of the Mark Clattenberg situation. The only complainant was Peter Herbert (see above). Now the FA needs to respond swiftly, conclude its own investigation and make the right decision. Simple.

Wednesday, 31 October 2012

Football, Leadership and Race - The Debate

On Monday night last I attended the Stephen Lawrence Centre in South London.It was my first visit. I was there to attend a debate organised by Sonia Meggie relating to the issues in the title of this blog. It was a humbling but inspiring occasion. From the moment I walked through the doors and saw the iconic photograph of Stephen in his blue and white striped t - shirt, I knew this evening would have a big impact upon me, a white, middle class male person. I mention that because in the literature about the Centre it reveals that the profession of architecture (Stephen's ambition was to be an architect) has only 2% of people from black and ethnic minority backgrounds. 'The industry is mainly white, male and middle class'.
Nonetheless my welcome was total. I met the deeply impressive Centre Programme Manager Doreen Thompson - Addo and was welcomed by Sonia with a warm embrace.
A Life Cut Short

It was interesting to be in a minority of about 2 white people. The speakers were all black people. The audience was very engaged and eloquent. Their passion grew, or became more apparent, as the evening went on. The desire for change and action to address racism and opportunities for BAME candidates became more evident and vocal.
There was an evident impression that  insufficient was being done by the football authorities. There was widespread dismay, even derision, at the FA's handling of the John Terry affair and disgust at the stance of Chelsea FC in permitting Terry to continue to captain the club (I cannot think of a single counter argument). The punishment was woeful and it was incomprehensible that the FA had advanced the proposition that Terry was not inherently racist, but had simply used racist language. For my part I do not understand why the FA felt the need to prosecute the case in this manner. It was a judgement for the Panel to make. It felt to me like appeasement. I think the debate agreed.
Iffy Onuora, former footballer and manager and now of the PFA was on the Panel. he spoke forcefully, but with considerable thought. It was apparent that he had found that his experience of the PFA over the last few months had been overwhelmingly positive. Whilst football generally was considered to be institutionally racist, it was hard to argue against, Iffy found the PFA to be genuinely diverse and inclusive. The PFA were responsible for numerous positive initiatives going forward to address the concerns of minorities and to address issues such as the near absence of black managers (see my post http://gibbsbarrister.blogspot.co.uk/2011/12/rooney-rule.html). The debate and consideration of the Rooney Rule for instance has been going on for a long time now, with Paul Davis pushing for it to be adopted over a year ago. Other football bodies have opposed it. Iffy was of the opinion that the PFA had failed to communicate and publicise its activities, perhaps out of modesty, thereby damaging its standing with minorities in particular. The FA on the other hand is demonstrably unrepresentative and its leaders seem disconnected from the wider community. Their slow and laboured response to the Independent Hillsborough Panel Report was another good example of this.
On the other hand I have it on unimpeachable authority that a tremendous amount of work and research is being done on behalf of the League Managers Association and the PFA to address inequality and discrimination within the game. I hope to develop these initiatives in a future post.
There was lengthy discussion about racial abuse, particularly when coming from the terraces. It was evident that more should be done. A lady involved in the stewarding of matches at Wembley told us that the realities of policing large crowds are that they are instructed to turn a deaf ear to racist abuse rather than confronting it. This is football's great dilemma and failing. The seeming unwillingness to confront the scourge of racism means that those from minorities have become embittered and disbelieving of the will of the game to change. It was striking that when considering that the referee is seemingly empowered to take the players off the field if racist abuse occurs, nobody truly believed that this would happen. Indeed at safety briefings before games, which involve referees, captains the Police and other relevant parties, the power of the referee to take the players off the field is not raised. This seems to demonstrate that nobody truly believes that this is an option.

There was a show of hands about the proposal to set up a Black PFA. Peter Herbert, Chairman of the Society of Black Lawyers was present. He has featured prominently in the media in recent days involving himself in several high profiles race related issues. His interventions have not always been welcomed and his motivation has been questioned by some. His stance is that black people need to assert themselves, to be organised and to demand what is rightfully theirs. There was initially considerable reluctance within the room to support a breakaway group, but this changed within the course of the evening. It became apparent that there is frustration within the black community at the failure of prominent players etc to speak out about issues of race and inequality. It was felt that Anton Ferdinand and his family were not shown sufficient public support during the over lengthy course of the Terry Proceedings. What people need is support and organised campaigning from within the black sporting community. The non wearing of Kick It Out t - shirts by certain players was generally supported. It had brought all the issues to the surface and into the public domain, to the point where even Match of the Day was moved to debate them. I got the impression that the black sporting community had remained too respectful for too long. Now was a potential watershed moment.
Iffy Onuora pointed out that whilst the PFA's '6 Point Plan' was released this week and thereby handled in a clumsy fashion, seeming to be a kneejerk reaction to events, in fact the points had been developed after lengthy consideration. Politically the release was perhaps mishandled, but the desire to achieve a more just environment for black players etc was not.
As I boarded the train for the lengthy late night trip back to Leicester my conclusion was that there is considerable hope for a better future. This group is fantastically well equipped to bring about change. A co - ordinated action plan to utilise the available talent and forces is what is required.
I was particularly struck by the expression of sheer pride that the NFL game at Wembley this weekend featured 2 black head coaches. It was pointed out that without the Rooney Rule none of that would have been possible.
Newsflash 9.11.12
It is to be announced shortly that Paul Elliott, ex Chelsea defender, will become the first black Football League Chairman joining Chris Powell (manager) at Charlton in the Championship. Progress!

Sunday, 28 October 2012

BITTER AND TWISTED

NEWS FLASH 5.3.13
A pulsating European tie heading the way of Man Utd at Old Trafford has been turned on its head after the referee sent off Nani for a 'dangerous high challenge' in the second half. Within minutes Real Madrid came from 1 - 0 down and a losing aggregate position to a 1 -2 advantage. Uts are down to 10 men and suddenly need 2 goals without reply to progress. Most observers expected at worst a yellow card for Nani. Yet again a controversial decision, which might have been avoided with a moment's pause for thought and a swift review of the video footage, has marred an excellent match. How does football benefit from the current state of affairs?
The following article discusses the issue in more detail.
UPDATE 19.2.13
FIFA has announced that goal line technology will be available for the World Cup 2014 in Brazil. Whilst this is of course welcome, it is only step one in the very necessary upgrading of football's use of technology so that in future we can concentrate on the merits of the football rather than endlessly debating the errors and transgressions which currently litter our national game.
Below is a discussion on the benefits of wider introduction of technology.
Technology Needed
English Football has some problems right now. Some of those could be addressed by a grown up and rational decision about the use of technology. Every week the game is assailed by controversies about refereeing decisions, but also other issues (eg Clattenberg) which could mostly be swiftly resolved by instant reference to technology and in particular TV evidence. Last week the debate was all about whether the ball had crossed the line. This week, and it gives me no pleasure to write this, the pundits were enraged by blatant diving by Santi Cazorla of Arsenal, for which he was rewarded with a game changing penalty. What he should have got was at the very least a yellow card and no penalty. Technology, delivered in seconds, would have seen justice done. There are further arguments about retrspective bans (3 games for cheating?) The rise of simulation needs to be addressed in 2 ways. By ensuring it does not succceed and by making sure it is properly punished.
Guilty as Charged?

Below are my thoughts as this situation has developed over recent weeks.

Football in Chaos
The first proper Super Sunday of the season, with a Merseyside Derby and Chelsea v Man Utd, should have been an occasion to showcase the English Premier League. There were in fact many things to admire about both games. Unfortunately we will not hear much about them now. The post match analysis and all the headlines relating to both matches will be all about the refereeing decisions which effectively decided the outcomes and seemingly created injustice. 606 on the BBC tonight is full of embittered fans complaining about the rights and the wrongs. The errors can make us all bitter and twisted.
It seems that some key decisions relating to goals, offsides and a sending off for 'diving' were wrong. There are many mitigating circumstances to excuse the referees, not least the speed of the game and the intensity  of the occasion, but also the constant cheating (simulation) by players. I can forgive the referees. They can be improved, but I doubt very much that anybody else would be much better. As an aside England provided the referee for the last World Cup Final. I doubt this would have happened unless English referees were very well respected and as capable as anybody of doing the job.
There is less mitigation for the Football authorities. Technology to assist referees to get the right decision more often (even if not faultless) is urgently required. European leading figures Franz Beckenbauer and Michel Platini (UEFA President) both argue in favour of the retention of a 'human element' and would have linesmen behind the goals or in a line of sight with the goal. They flatly refuse to contemplate technology for goal lines, but also within the wider context of the game for other important decisions.

Injustice

I though am with  Patrick Barclay, formerly of the Times and now the Evening Standard. He has consistently argued that goal line controversies are extremely rare, and that FIFA should in fact have a 'video referee' (what does the 4th Official currently do?) in the stands providing assistance to the referee generally rather than limiting it to a very rare and isolated function. One of the attractive aspects of this would be that this official would be removed from the field of play and he could thus go about his business calmly without the hindrance of player protest. Players and club officals do not have access to the man in the 4th offical room.
This 4th (5th?) official should have a constant link with the referee and could provide vital information to allow decisions to be correct more often. It need not be used for every decision, but for those where there are significant consequences ie where goals are scored or cards will result if the decision goes the wrong way. There is a sour taste in the mouth when a 'goal' is score which was not in fact a goal for whatever reason. What can feel worse than being sent from the field of play for something you have not done. Imagine Laurent Blanc in the World Cup semi final 1998. Sent off and missing the World Cup final because of appalling simulation by Slaven Bilic. It would not have happened if we had technology. That technology exists now which is why we all know that certain decisions are wrong.
Incidentally Mark Clattenberg's current 'difficulties' could be swiftly resolved if he was miked up and everything was recorded, even if not disclosed. Although to be honest, if we got to hear what was said on a football field the game would be cleaned up in record time or there would be no sponsors left! Clattenberg was connected to his assistant referees and the 4th Official. None of them heard him utter anything untoward. Chelsea's case is limping badly already. For the protection of officials, the technology must be introduced.
With technology  we could tackle simulation at the same time by demonstrating where it has incontrovertibly taken place. Red cards could immediately follow. Divers would swiftly be a dying breed.

Dying Swan (Breed)
UPDATE 12.11.12
Mark Clattenberg will not referee this weekend for the 3rd straight week. It is said to be for his own good. I doubt it. If the technology had included recorded audio feeds from the officials a) Clattenberg would possibly have missed no matches at all (or never refereed again!) and b) player behaviour would have already dramatically improved.
UPDATE 13.11.12
The Metropolitan Police have tonight announced that they are no longer investigating Mark Clattenberg. There is no evidence to justify a charge and 'no victim'. The complainant was Peter Herbert (Society of Black Lawyers). This complaint has seemingly not been backed up by  Chelsea or its players. Although a complaint was made by them to the FA, Chelsea did not complain to the Police. According to reports, all the match officials supported Clattenberg in stating that no such abuse was heard. All the
available evidence for the Police accordingly exonerated Clattenberg.
The FA now need to bring their investigatory process to a rapid conclusion and to make a decision. The end of this particular affair may well be approaching.
Thereafter protocols need to be agreed with the Police with regard to how to proceed in future. The unhappy intervention of outside parties needs to be looked at and another protocol established.
UPDATE 22.11.12
The FA has announced today that there is insufficient evidence to charge Mark Clattenberg. I am not remotely surprised given that the other 3 officials who were all linked up with him heard no abusive comments. Only one Chelsea player (and not the alleged victim) heard anything allegedly untoward. The broadcasting and recording of what is picked up by the referee's microphone would undoubtedly have spared Clattenberg this anguish and media trial. It would also dramatically clean up the game.
In a fast moving story it has now been decided that the referee link up will be recorded although kept confidential - football's authorities fear the embarrassment of the reality of on field goings on becoming public. One additional benefit will be that the monitoring of referee's performance will now have some powerful evidence to go on.
Meanwhile John Obi Mikel has been charged with threatening and abusive behaviour towards Clattenberg following the fateful match after an altercation.

UPDATE 6.12.12
Chelsea's Mikel admitted an FA charge of Threatening Behaviour relating to referee Mark Clattenberg behind the scenes after the Chelsea v Man Utd game.  He requested a persona\l hearing and today it was announced that he will serve a 3 game suspension. The Independent Regulatory Commission Chairman made it clear that they accepted that when he made the threats Mikel genuinely believed (as a result of what he had been told by colleague Ramires) that Clattenberg had racially abused him. Otherwise the ban would have been much longer.
What follows is the background and build up to the Mikel suspension.

Thursday, 18 October 2012

Lanced - Glasnost not Omerta

There has been a seismic shift in the landscape of professional cycling in recent days. Since my earlier  post  http://gibbsbarrister.blogspot.co.uk/2012/02/armstrong-my-hero.html  all doubts about the nature of Lance Armstrong's astonishing success story have been swept away.
 It was a fraud.
I listened to Alistair Brownlee, gold medal triathlete, expressing his disappointment as the truth about Armstrong emerged. Brownlee idolised the Texan and used him as a source of inspiration in his formative years. Brownlee now calls for Armstrong to be banned from his new choice of sport - triathlon. How many million others must be undergoing a similar psychological transformation? It does feel somewhat deflating.
A new hero is required desperately.
And yet as I wrote in my piece on David Millar http://gibbsbarrister.blogspot.co.uk/2012/04/out-of-darkness-there-is-light.html this is not necessarily a time for sorrow, but a golden opportunity for an entire sport to save itself. Almost the entire modern history of cycling is utterly tainted by drug abuse. From the late 1990s right up to, but not including, 2012, it is difficult to think of a champion (certainly in TdF terms) who has not failed a significant drugs test or been implicated in one of the many drugs scandals.
It is Just About the bike
Nothing that was witnessed was truly believed in. The sport was potentially great, but its participants were not. There is nothing to compare with the Tour de France, yet it could leave you cold.
Now a new mentality is taking hold. Glasnost rather than Omerta.
Team Sky, reacting appropriately to the revelations, have introduced a strengthened anti doping policy for all members of the outfit, riders and support staff. All will be required to sign a pledge declaring that they have not been involved in doping in the past and obviously will not be in the future. Anybody failing to sign up will be required to leave the team. Anybody subsequently proved to be involved in doping will leave. Michael Barry left the team this Summer. He has now admitted involvement in the Armstrong doping system. He has retired and may now be heading for obscurity. There are of course questions for Team Sky, not least about Sean Yates who worked with Armstrong at Astana and Motorola. Yates will sign the pledge. Yates has now 'retired'.
Matt White, a former team mate of Armstrong at US Postal, who this week admitted doping during that period in the early 2000s, has been sacked by Cycling Australia. They called the conduct 'morally reprehensible'. Levi Leipheimer, one of those who testified against Armstrong for USADA, and accepted a shortened ban of 6 month has been sacked by Omega Pharma Quick Step. and so it goes on.
Darkness

The long overdue backlash against Armstrong gathers pace. Nike has finally bowed to the inevitable and 'Just Done It' ie dropped its sponsorship of the cyclist.  Anheuser Busch (Budweiser) and Trek followed suit. In a personally traumatic move, Armstrong has stepped down as Chairman of Livestrong, his redeeming cancer charity. Happily the charity seems to go from strength to strength, there are no serious questions about its positive effect on cancer treatment. Armstrong's move allowed Nike to maintain its support for the charity. Interestingly, call me a cynic, Nike has 98 different 'Livestrong' products on sale in the US. Its 'moral clause' re behaviour likely to tarnish the brand, no doubt made divorce from Armstrong more straightforward.
Returning to David Millar, now regarded as something of a crusader for anti doping following his ban in 2004, he has not ruled out one day seeking the Presidency of the UCI - cycling's international federation. It is the governing body's regressive approach to the affair which is the single most negative factor about the situation today. Hein Verbruggen, former President of UCI, is just today quoted in De Telegraaf as stating that there is no evidence against Armstrong. It perhaps beggars belief, but if you have spent the last 10 years denying something, looking the other way and refusing to contemplate it, let alone challenge it, then perhaps less surprising.
As this story twists and turns I for one cannot but think that the future is brighter (and cleaner) than the past.
Light
POSTSCRIPT 9.1.13
It has been announced that Lance Armstrong will appear on the Oprah Winfrey show next week. Speculation is rife that this will be his mea culpa moment. Why else put himself in the spotlight? More lame denials would invite ridicule and close the door on any 'attractive rehabilitation confession scenario'. So it could be quite a week for professional cycling, indeed professional sport. It could in fact be the ultimate sporting 'glasnost moment'.

Friday, 5 October 2012

FA Regulatory John Terry Decision

The FA's Independent Regulatory Commission today published its written reasons for the decision in the John Terry racial abuse case. There are a number of interesting revelations, both about the events themselves and with regard to the process and reasoning. The key participants, Terry and Ferdinand, but also Ashley Cole, emerge with little credit intact.
The incident itself demonstrates the childish and ignorant behaviour which sometimes blights professional football. Terry and Ferdinand engage in a running dispute during which they verbally abuse each other, exchange shoulder barges started by Terry, who then tries to kick Ferdinand, and culminates with Terry racially abusing Ferdinand. All of this because Ferdinand believes that Terry has tried con the referee over a penalty and because Terry is upset that Chelsea are losing. Its pretty pathetic stuff. Terry's view of such goings on is revealed in comments to Ferdinand post match which  demonstrate football's unending dilemma with player behaviour "It's handbags init, it's what happens on the pitch, it happens". It should not.
Terry's defence team argued abuse of process and also that the FA was barred from proceeding by its own regulations. The arguments about abuse of process were rejected. The FA was perfectly entitled to pursue the regulation of the sport notwithstanding the outcome of the criminal proceedings. FA Regulation 6.8 created a presumption in Terry's favour because previous findings (the criminal case) were presumed to be correct. The FA were required to rebut that presumption by 'clear and convincing' evidence. The FA were entitled to rely upon the existing evidence and were not required to produce new or fresh evidence to succeed.
'Improbable, implausible and contrived'

The FA answered my previous question as to why Ferdinand (and in similar circumstances previously, Patrice Evra) was not charged with misconduct. The referee did not apply an on fiels sanction and it is FA policy not to take retrospective action with regard to abuse simpliciter under Regulation 3 (1) unless that abuse is directed at a match official or a 3rd party such as a spectator. There is a different policy in place in respect of the more serious 3 (2) charge which Terry faced. so if Terry had not used the word 'black' he would not have been charged at all.
Contrary to media reports, the FA did not invite a guilty verdict unless the Commission found that Terry had used the offending words as an insult. If Terry's defence was accepted the FA did not seek a finding in their favour. The verdict is accordingly a complete rejection of Terry's version of events.
There was legal argument about the standard of proof, resolved in Terry's favour. Interestingly the FA's own rules on this matter have changed since the incident and prior to the hearing. The standard is now 'the civil standard of proof''. Until 1.7.12 the standard was 'the flexible civil standard of the balance of probability, the more serious the allegation, taking into account the nature of the misconduct alleged and the context of the case, the greater the burden of the evidfence that is required to prove the matter'. This undoubtedly made it more difficult for the FA to prove its case.
Terry did not give evidence, in other words he declined to expose himself to the risks of cross examination. We do not of course know precisely why, but it as undoubtedly a factor in his defeat (an error?) even though the Commission expressly stated that they came to their conclusion without even applying any adverse inference in this regard. Even more surprisingly Anton Ferdinand was not cross examined.
The Commission concluded that Ferdinand did not accuse Terry of calling him a 'black c...'. Terry did not hear, or believe he heard, the word 'black'. In a damaging conclusion the The Commission found aspects of Terry's defence 'improbable, implausible and contrived'. It was much more likely that Terry was angry and that his words were an angry reaction to Ferdinand's provocation and the way that the match was going (Chelsea were losing and down to 9 men). The film footage does not support the Terry 'it was questioning' version of events. Terry only sought out Ferdinand an hour after the game and then probably because he realised that his words may have been witnessed or caught on camera. He asked Ferdinand 'what happened?' because he needed to know what Ferdinand knew or had heard.
The Commission found 'no credible basis' for Terry's defence and were 'quite satisfied' that the words were an insult.
New evidence was introduced. Terry's appalling behaviour (red card for off the ball assault) in the Champions League semi final v Barcelona came back to haunt him. Terry had given an account of the incident upon leaving the pitch which he was forced to retract later. It as argued that he had a propensity to be untruthful about what happened on football pitches. The Commission exercised its discretion under 6.8 to admit the evidence in theory, but found that there was no reliable evidence, before them, as to what Terry had said. This is nonetheless an important precedent for future use, players beware of microphones!
Coming Back to Haunt You

The Barcelona footage did though undermine key Terry character evidence that Terry possesses 'preternatural reserves of self control'. The Barcelona footage clearly showed that Terry was capable of losing that self control.
The only saving grace for Terry was that the neither the FA nor the Commission were saying that Terry was racist. There was a large body of evidence that Terry was not inherently racist.

Sunday, 30 September 2012

Kick Racism ...

Kick Racism out of Football
John Terry endured a difficult week during which an FA Tribunal found him guilty of using abusive or insulting words with a reference to race or colour. Many fellow professionals felt the initial punishment (a 4 game ban) was too lenient.

Thursday, 27 September 2012

Terry - The End of the Affair

John Terry was this afternoon found guilty of the FA charge of  "using abusive and/or insulting words and/or behaviour towards Ferdinand and which included a reference to colour and/or race contrary to FA Rule E3[2]" by the Independent Regulatory Commission appointed by the FA. He was banned for 4 games and fined £220,000. The fine amounts to little more than a week's wages and is a drop in the ocean. Most people are aware of the facts and few will not already have a fairly entrenched view of the Chelsea defender. He has been stalked by controversy for a number of years. The verdict was no surprise. Indeed even before the hearing began on Monday, Terry 'retired' from the England team seemingly in protest at the charge being pursued by the FA. For their part, I cannot see that the FA had any alternative but to bring the charge and seek an adjudication from an independent tribunal.
Nonetheless I have previously questioned the wisdom of bringing criminal charges in respect of this matter http://gibbsbarrister.blogspot.co.uk/2012/07/terry-v-ferdinand-house-in-order.html. The rationale for charging Terry with a criminal offence, but not Luis Suarez who was arguably guilty of more serious misconduct, appears to be that in the Terry case there was a complaint to the Police. It was in fact from an off duty Police officer who witnessed the visual events on You Tube. In my view this is a nonsensical distinction. I would advocate that as regards football, the Police and the CPS reach an agreement with the FA as to how these matters are to be dealt with in  future. In my view they should dealt with within the game by the FA and via an IRC.
Terry was dealt with more leniently than Suarez http://gibbsbarrister.blogspot.co.uk/2012/01/suarez-end-of-saga.html. The rationale for this decision, with which I have no difficulty, is that Suarez was alleged to have repeated the offending racist words on a number of occasions over a period of time whereas Terry had used the offending and offensive phrase on just a single occasion. Suarez was banned for 8 games but fined significantly less. The IRC got it about right.
Should John Terry appeal to the FA Appeal Board. He has the right to do so, but I suspect that he will not. The Appeal Board could increase the sentence. It is highly unlikely that they would reverse the verdict.
Terry v Ferdinand

In any event John Terry cannot win. Even if some technicality could be found; lawyers are no doubt beavering away at this very moment, the court of public opinion has already decided. Terry should take his punishment with dignity and get on with his life, maybe even withdraw slightly from the public eye. After all Terry has already been cleared of being a racist. This was effectively established at the criminal trial and the FA have never sought to argue otherwise. He was indisputably provoked by the puerile conduct of Anton Ferdinand, who in any event claims that he did not even hear the offending words. Why is Ferdinand acting the victim? For my part Ferdinand should have been charged by the FA for his part in the affair. Patrice Evra should also have been charged by the FA for his part in the Suarez affair. It is time that this kind of juvenile, but nonetheless appalling abuse, was rooted out of the game.
John Terry could now man up and accept the verdict. The FA could then step up and get a real grip on the game and initiate a Respect Campaign with real vigour and real teeth. As part of that campaign they could address the cheating curse of diving as well. At the very least retrospective bans for blatant cheating would be a good starting point, but I digress.

Tuesday, 25 September 2012

Lockout! Nightmare Vision of a World without Referees

http://www.bbc.co.uk/sport/0/american-football/19712468

I was drawn to the BBC headline 'Touchdown Controversy Rocks NFL' and then watched the above clip with some bemusement/amusement. The clip features a 'Hail Mary' pass from Seattle Seahawks Quarterback.... intended for wide receiver Golden Tate (do they make these names up?). Hail Mary?That's a new one on me too, but I am imagining it bears a passing resemblance  to the miracle pass that Glenn Hoddle used to be famed for trying in my formative football years (well my 20s actually). Anyway my untrained eye saw Green Bay Packers defense Jennings catch the ball on an interception (no touch down!), but then find himself engulfed in a bundle of players and engaged in a wrestle for the ball. The umpires signalled 'touch down' or did they? One seemed to signal quite the opposite to the other. One initially got it right, but eventually both got it horribly wrong. Eventually with the 'assistance' of TV replays a touch down was (wrongly) awarded.
All good fun. However joking apart there are some mighty serious issues arising, not least in my view for player safety and control of the game.
Firstly this was a game deciding decision. The Seahawks won a game which they truly lost. It was played out before millions of viewers on Live Monday Night Football. The story is no longer the game, but the refereeing spectacle. Many feel NFL has become a laughing stock.
Why is this happening? 3 weeks into the NFL season the League is in dispute with the National Football League Referees Association (NFLRA). The referees are on strike and the NFL has drafted in referees from smaller conferences and are using 'elite retired college officials'.
The result has been carnage.

Yes or No?

The game's integrity is at stake. The billion dollar betting industry which surrounds the game is compromised.
The NFL has been forced to threaten players and coaches who 'intimidate' replacement officials.
Its all about dollars. The NFL pays its officials the least of the Big Four US Sports. Incredibly the officials are only part time. They officiate perhaps 20 games per annum. Most have alternative careers. The dispute is roughly over $2 million dollars per year, a drop in the ocean for the sport.
The NFL has been on the back foot over player safety issues. It has launched crackdowns on players and teams suspected of endangering the health and safety of other participants. The referees were intended to play a significant role in the protection of players. They have undergone concussion awareness training, are trained to identify concussion issues during games and to alert medical staff.
Suddenly the game is being policed by a second string at best.
The mistakes and embarrassments of these B Listers have become the story.
How long before mirth and ridicule turns to disaffection and fans reject the game.
What happens when a team misses out on end of season glory due to basic refereeing errors. Worse still, what if a player is seriously hurt or worse because the replacement referees lack the awareness or assertiveness to step in?
UPDATE 26.9.12
Unsurprisingly the NFL is scurrying to come to an accord and the word is that a deal (even provisional) will see 'regular referees' back in place for this Sunday's games (week 4). If ever a 'strike action' proved the value of the 'strikers' it is this occasion.

Thursday, 13 September 2012

HILLSBOROUGH

Epilogue 25.4.13
Lord Justice Goldring today announced that the Hillsborough fresh inquests will take place early in 2014. Finally justice is edging a little bit closer for the families of the 96 who died. There is a division between the families as to where the inquests should be held. A very difficult initial decision for the judge, but I know that he is a very good man who will do his best. Now is not the time for division.

Below is my piece about what happened according to the Independent Hillsborough Report.

Today 19th December 2012 the Attorney General will apply to the High Court to quash the original Inquest Verdicts in the cases of the Hillsborough 96. This is what the case is all about. A new inquest, years too late, is nonetheless an important step forward in the painful fight for true justice for those who lost their lives and for their families.
Fight For Justice
23 years ago 96 Liverpool football fans went to a football match. They did not return. Unbelievably their families have had to fight tirelessly to uncover the truth behind the events of that day.
I salute the tenacity of ordinary, but valiant and heroic parents and family members.
What is often forgotten is that many others were involved that day. They were either directly caught up in the horror, or witnesses to the unimaginable. Their lives were changed forever. A dear friend's brother's future was shattered that day.
On the 12th September 2012 the Independent Hillsborough Report was published. In stunning clarity, and following the most unbelievably thorough consideration of documents, it lays out the truth about the events of that day and the surrounding circumstances. The Panel has done the most splendid job. Its members have begun to right a wrong in our society.
These are my thoughts on some aspects of the report. I am still reading it and may be for some time to come.

Before.

I find it almost impossible to grasp that there were well documented problems with serious congestion and crushing injuries to fans at the Leppings Lane end of Hillsborough in 1981 before the semi final between Wolves and Spurs. An exit gate had to be opened to relieve the crush. Fans escaped onto the pitch through the small gates. At that time there were no 'pens' so sideways movement and dispersal was possible. Nonetheless the maximum capacity of the Terrace was significantly exceeded. South Yorkshire Police (SYP), though, did restrict access to the central tunnel. The Panel took note of documents from the period which showed that in 1981 crowd safety was 'compromised at every level' and the many deficiencies were well known.
In the aftermath SYP and SWFC argued about their responsibilities. Wednesday and their safety engineers resisted repeated SYP calls to reduce the capacity of the terrace. The pens were created in 1981 on the recommendation of SYP. Lateral movement was only possible thereafter via a small inadequate gate.
SWFC is severely criticised in the Report. SWFC's primary consideration was cost. Their own safety consultants had, to some extent, similar motivations.
Reports commissioned by the club show that the ground had failed to meet minimum standards under the Safety of Grounds Act 1975 since 1978. Additionally such inspections as there were by those charged locally with safety issues, were 'inadequate and poorly recorded'.
Hillsborough was extensively modified between 1981 and 1987. There were now 2 central pens accessed by the central tunnel under the West Stand. No revised safety certificate was ever issued and, illustratively, recommendations to feed fans to designated pens via specific turnstiles were rejected by SWFC on the grounds of cost. Consequently no statistical information was generated at the turnstiles as to the crowd distribution between pens to enable safe monitoring of numbers.
The Fire service had raised concerns about emergency evacuation provision. The only exit gates to the pitch perimeter were well below recommended standards.
The documentation suggests that SYP were preoccupied with crowd management issues, segregation of fans and prevention of disorder.  SWFC were motivated by limiting costs.
Key safety issues were not discussed at annual safety inspections.
Hillsborough was not used for semi finals thereafter until 1987, then 1988 and of course 1989.
Incredibly there were further issues of overcrowding at both the 1987 and 1988 events. The club denied at the time that there were any crowd related incidents on either occasion.
There was crushing at the 1988 semi final. The central gate to the Leppings Lane Terrace was closed to prevent further access to the central pens. Neither of these events was recorded in the SYP debriefing notes for that semi final and neither were the methods used to combat them. The closing of the central gate as a means of controlling access to the central pens at the 1989 event was not included in the SYP Operational Order.

15th April 1989.

This was a disaster waiting to happen.
The lessons of previous years had not been truthfully and faithfully documented, had been disregarded, or were simply blatantly ignored for reasons of cost and operational focus.
The stadium was a potential death trap and this was, or should have been, known.
The Police operation was focussed upon issues relating to crowd disorder, ticketless fans and in particular Liverpool fans. They were stigmatised by the Police whose mindset prioritised crowd control over safety, a standpoint that was particularly directed at Liverpool fans.
SYP replaced Chief Supt Brian Mole, its experienced Hillsborough Match Commander a month before the semi final. There is no explanation in the extensive documentation as to why he should be replaced by David Duckenfield at that sensitive time. Duckenfield had minimal experience of Hillsborough policing.
Both attended the planning meeting ahead of the event, but the Fire and Ambulance services did not. There is no explanation for this in the documentation.
The disaster was not the fault of the Liverpool fans. They had been allocated areas of the ground which constituted a documented 'bottle neck' and this presented in the words of the Panel 'a predictable and foreseeable risk of crushing injury'. The crush was not due to late arrivals or 'drunken fans', but to the inadequacy of the turnstiles to process the crowd safely.
The Panel ascribed the causes of the disaster to:
flaws in responding to the emerging crisis rooted in institutional tensions between organisations

policing and stewarding policy focussed on crowd disorder

failure to realise consequences of opening the exit gates to relieve congestion

failure to control and monitor allocation between the pens and failing to seal the central tunnel (as had been done successfully the previous year)

delay in realising that the nature of the crisis did not relate to disorder.

To their immense discredit, SYP Senior officers later denied knowledge of the 1988 tunnel closures. Subsequent to the tragedy officers on the ground made statements stating that their senior officers had ordered them to close the tunnel the previous year. Those officers were put under pressure and asked to amend their statements by the Force solicitors. Those officers who referred the 1988 'crushings' were asked to change their statements. To lie.

The only people that emerge with credit from this appalling disaster are the fans, the people who rushed to the aid of the stricken, and later the families, dignified but determined, and those who assisted them on the long journey towards the truth, including this Panel. It is a cliche, but they ultimately did not 'Walk Alone'.

Now 12.10.12
Justice for the 96 moved a step closer today when the Independent Police Complaints Commission announced a wide ranging enquiry, as a direct result of the Independent Hillsborough Panel Report, into the actions of Police officers on the fatefulday, during the various investigations which followed and in their alleged attempts to hide or distort the truth. There are many uncomfortable questions. Those officers who failed the families and society cannot be allowed to slink away into early retirement without final accountability where justified.

Sunday, 9 September 2012

Blade Runner's Downward Spiral

Newsflash 14.2.13
Staggering news emerging from South Africa. Oscar Pistorius the 'Blade Runner' has been arrestedon suspicion of murder this morning at his home address after allegedly shooting his model girlfriend in the head and arm and killing her. A pistol was recovered at the scene. There has been some speculation this morning that the Sporting Icon and national hero may have mistaken his girlfriend for a burglar. South Africa is much troubled by crime, but it too premature to really have any firm idea of what happened.  Pistorius will appear before a court this morning.
Further Update 17.2.13
A surprising amount of detail is leaking out about the events surrounding the death of Reeva Steenkamp. South African Police (SAPS) do not seem reticent in making their case (premeditated murder) to the media. It is now clear that the evidence does not support any proposition that Pistorius believed there was an intruder. We don't need to go into the evidential details here.
 I have been waiting for the first suggestion that Pistorius' actions might be linked to steroid abuse. Tonight there were the first whispers. Of course there is no such evidence. However there are evident and well known side effects of such abuse and Pistorius was under the most unbelievable pressure to continue to improve. He hoped to reach the final of the able bodied 400m at the Commonwealth Games in 2014 and was training hard for this year's able bodied World Championships. Pistorius was earning something like £5m fron his commercial deals with Nike etc. The stories of gun obsession and paranoia about security, even whilst living in a high security gated community, can only fuel such speculation. It is not surprising that some might attempt to make such a case , but of course there is nothing to prove any such thing. Pistorius of course, has never failed any drug test.
As for Nike, this is another PR disaster through their association with a sporting superstar on the back of Woods and Armstrong. Surely the linking of Pistorius with guns ('The bullet in the chamber' advert which has been swiftly withdrawn) was in poor taste and even tempting fate.
The Paralympics
The Paralympics ended today - it was quite simply a triumph.
There were a couple of controversies, but few moments of genuine discomfort. Emotions ran high occasionally and sometimes in the heat of the moment stuff got said - it was sport of the highest order.
I thought I would just consider one interesting aspect, the debate over the length of blades used in the athletic events.
After Oscar Pistorius was, perhaps surprisingly, beaten in the T44 200m final by Alan Oliveira of Brazil, he complained bitterly about his opponent's blades, suggesting that Oliveira had crucially and unfairly increased his stride length. It is right to say that he had also raised the issue in advance of the race. Nonetheless this was a side to Pistorius at odds with his public image as the pin up boy of both Paralympism and the Olympics.
So were Oliveira's blades too long as claimed? Simple answer 'no'. There is a complicated procedure used by the International Paralympic Committee in order to arrive at the maximum height that a competitor may stand in his blades. It involves measuring certain parts of the body which allow a calculation of what the true height of the athlete should be.
Do longer blades equate to improved performance? Again there is much debate on the subject, but interestingly this was the subject of Pistorius' appearance before the Court of Arbitration for Sport in 2007. Generally longer blades produce a faster finish, this is because longer blades store more 'elastic energy' permitting speed to be maintained by the athlete whilst less energy is dispersed. The downside is that the start of the race is slower and reaching top speed requires greater energy.

Striding Forward

At CAS Pistorius was seeking to overturn the ban by the IAAF against his participation in able bodied events. IAAF scientists proved that at full speed he used less energy than able bodied athletes. This would clearly be unfair. However the ban was overturned because Pistorius showed that these arguments did not take account of his disadvantage in the early stages of the race and in achieving full speed. CAS concluded that there was insufficient evidence to show that he had an unfair advantage overall.
It is interesting to note that Oliveira took more strides (98 - 92) to cover the distance than Pistorius, a statisitic of itself which destroyed Oscar's complaints. Oliveira had a faster leg turnover than the South African.
In any event there is nothing to stop Oscar changing his blades for Paralympic events, provided they are within the recognised limits, but he could not use these new blades in able bodied competition because CAS only approved his participation using the particular blades which were the subject of the tests and the ruling. CAS was not giving Pistorius a general green light. It would be extremely difficult nonetheless for Pistorius or anybody else for that matter, to switch 'equipment' between different the types of competition.
The future may involve an ever more scientific approach to Paralympic running events, rather like Formula 1, the best equipment will probably prevail. This presents something of an ethical dilemma.

Friday, 7 September 2012

Barton as 'Useless Makeweight' - Instant Karma


I could write a whole blog just about Joseph Barton, not an overly flattering one either. Just a few short months ago I debated the latest piece of lunacy from Barton http://gibbsbarrister.blogspot.co.uk/2012/05/no-sporting-chance.html  His attack upon, inter alia, Sergio Aguero, in the critical end of season game between QPR, battling relegation, and Man City chasing, ultimately successfully, the title, led to his expulsion from the field of play and eventually a 12 match ban from the FA (4 matches for a second red card that season,  a consecutive 4 matches for his cowardly attack on Aguero and a further 4 matches for attempting to head butt Vincent Kompany). Unbelievably Barton denied the Kompany allegation. The footage did not lie but who was advising Barton? Was he listening? 
The FA subsequently took no action in respect  of Barton's  ugly twitter rants which followed. Nonetheless the ban is one of the longest in FA history. The Chairman of the Regulatory Commission stated 'There are rules of conduct that should be adhered to, and such behaviour tarnishes the image of football in this country, particularly as this match was the pinnacle of the domestic season and watched by millions around the globe'.

Ouch! 12 games
Focus then  reshifted  to QPR. What would they do about a player who would not be available for almost a quarter of next season  and one who had brought disgrace upon himself, but also the club?
After considering numerous options, including sacking him for 'gross misconduct', and attempts to off load him into the Football Conference proved untenable, QPR achieved something of a triumph out of adversity.
Taking advantage of another club's difficulties, QPR managed to negotiate the purchase of midfielder Stephane Mbia from Olympique Marseille, whilst simultaneously loaning their number one problem to the French club. The French club clearly needed to offload Mbia, Barton was the 'contrainte economique' to achieve it.
So QPR get at least some of Barton's reported £80k per week salary off the books, and acquire a 26 yr old Cameroonian international who can play in central defence or midfield, what did Marseille get?
Stunningly it appears that OM always knew that the English ban (12 games) was likely to carry over into France. On Thursday the French Federation confirmed that Barton's ban would apply there as requested by the English FA, pursuant to Article 12 of the FIFA Transfer Regulations. What a nonsense if it did not!

Makeweight

Marseille therefore acquired a player that they cannot use in 8 Ligue 1 games and one Champions League games (Barton has already served 3 games of his ban). It appears that Barton was acquired on the insistence of OM President Vincent Labrune in order to ensure the Mbia deal. Although OM Coach Elie Baup rates Barton, there is no way he would have chosen to have an unavailable player as part of his plans.
It appears that Joseph will have plenty of time for tourism, but will have to get used to being an irrelevance in playing terms. justice after all?

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Tuesday, 4 September 2012

The Sporting Law Book for Girls


This piece appears courtesy of top lawyer and friend Felicity Gerry.

In the front of  'The Daring Book for Girls' by Andrea Buchanan and Miriam Peskowitz there is a list entitled “The Daring Girl’s Guide to Danger”. It reads “Facing your fears can be a rewarding experience and pushing yourself to new heights will inspire you to face challenges throughout life”. What follows is a checklist of “danger and daring” which includes riding a roller coaster, going white water rafting, dyeing your hair purple and standing up for yourself – or someone else”. There are some things girls can do right away, some they will have to work up to.


 This year, 'daring girls and women' made the world stop and take notice as they achieved triumph after triumph in sport at London 2012 Olympic and Paralympic  Games. The challenge is to maintain the momentum and to make sure that  there is fairness in global sport and global sports law
Equality and the power of sport was truly reflected in the smiles of 13 year old paralympian Maddison Elliott when she won a bronze medal in the 400 metre freestyle. Her smiles lit up the poolside. The Sydney Morning Herald reported Maddison saying: "This morning I did a massive PB which was a 19-second PB and I just wanted to get into the final just to do another PB, and it's just amazing to get a bronze medal at the age of 13 at my first Paralympics”.
London 2012 Olympic and Paralympic Games really have been wonderful but it has been a particularly fantastic leap for sporting women and girls. The development of global sports law provides an opportunity for a process that is not fettered by the potentially discriminatory rules of any one national state, but creates a transnational legal order with sufficient principles of substantive and procedural justice that allows for fairness in adjudication on all sorts of sporting issues. As Ken Foster, Research Associate at the University of Westminster argued in a recent paper “The growth of global sports governance, and in particular the expansion of lex sportive through the jurisprudence of CAS is of special interest to legal theorists who see it as a regulatory regime juridifying into a form of transnational law outside the review of national courts”.
 If such a global legal system is possible then the hope for equality on so many stages exists.
It is 40 years since the US Federal Government’s Title IX Education Amendments were made into law. Title IX states: “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”. It allowed for female sporting championships and, like many other countries, has led to the rise of remarkable women. Names such as Nadia Com─âneci, Olga Korbut and Florence Griffith Joyner have inspired the generation of young women proving their abilities this summer. 
For team GB there were so many firsts: In boxing, Nicola Adams, won the first ever boxing gold for women in the Olympics. In Track cycling, Laura Trott won 2 golds in her first games. In the cycling road race, Lizzie Armisted won the first medal for GB in Olympic women’s cycling. No one will ever forget Gemma Gibbons’ silver medal in the women's judo which takes second place only to the clash between Victoria Arlen and Ellie Simmonds in the Paralympic swimming.

Inspiration

 The protection for these women in the world of sport flows from the global regime of sporting governance, the characteristics of which are summarised by Ken Foster as follows:
· It is rule based and considered binding, by contractual acceptance by the participants with characteristics that can be equated with law
· It has a mechanism for alternative dispute resolution through arbitration that is binding
· It has a non- state regulatory system of governance, described by some writers as transnational private regulation, through its pyramid structure consisting of the IOC, international federations and national federations
· With its anti doping rules administered by WADA, it is an interesting example of governance by a hybrid institution in which public elements, such as governments, and private interests are mixed
· It claims to be immune from challenge by national courts and thus it is therefore a system of private transnational law beyond state control
What we have therefore is the development of a global system of governance which is known as sports law but has much more to do with principles of rule making. Bodies such as the IOC are, in effect, exercising a form of Governmental power without using existing laws from any particular nation state but founding the rules on fairness.
This sporting year there were also a couple of triumphant lasts: Sarah Attar, the first Saudi Arabian woman in Olympic track and field finished last in 800m heat, but attracted a standing ovation as she crossed the finish line as did her fellow Saudi Arabian Judoka Wojdan Shaherkani who made history as the first Saudi Arabian female to compete at the Olympics. For many, this demonstrated the power of the IOC to compel international cooperation. Others have called for a system of accountability. 
As Uncle Ben in Spiderman said “with great power comes great responsibility”. 

Sarah Attar Breaking Through

Whatever the future for global sports law and however it will be challenged and regulated, it is a fascinating debate which is not just academic. It is the start of something which can be even greater than Jessica Ennis’ win in the heptathlon. Here’s hoping that the world’s acceptance of women’s’ sporting greatness can lead to a global legal order based on equality and fairness so that Maddison Elliot can make us smile for generations to come and future girls can aim for more than a PB.
Felicity Gerry is a barrister at 36 Bedford Row, London. She has successfully represented professionals in criminal and disciplinary proceedings. This has included sportsmen, lawyers, doctors, teachers, a pharmacist and a taxidermist. In 2012 she was also part of a team providing on call legal advice & assistance to LOCOG in relation to sports law including defamation/ privacy issues

Felicity Gerry

UKChambers website: www.36bedfordrow.co.uk