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.