The FA v Kiko Casilla & The FA v Bernardo Silva – the era of zero-tolerance with The FA acting as Big Brother

Manchester City’s Bernardo Silva has been banned for one-match, fined £50,000 and ordered to attend a mandatory face-to-face education programme following an FA Commission regarding an inappropriate tweet about his teammate Benjamin Mendy. The FA report said: "The player did not himself intend the post to be insulting or in any way racist. It is clear that the tweet was intended to be no more than a joke between close friends…However, this was not a private communication between two friends…The post was on a social media platform exposed to the 600,000 followers of a high-profile and well-respected professional footballer…Many persons viewing the imagery depicted in the tweet would have taken offence to the content as being insulting by reference to race, colour and ethnic origin in a way that unquestionably brings the game of football into disrepute." Although it was only intended to be a “joke”, the tweet, which was published for 46 minutes before being deleted, was found to be conduct which breached Rule E3(1) which states: “A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.” Rule E3(2) states: “A breach of Rule E3(1) is an “Aggravated Breach” where it includes a reference, whether express or implied, to any one or more of the following: ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability.” This is not the only live case as next in line on a regulatory disciplinary matter is Leeds United goalkeeper Kiko Casilla - the allegation is that he racially abused on loan West Bromwich Albion forward Jonathan Leko during the Championship fixture between Charlton and Leeds on 28 September 2019. Casilla has asked for further time to respond to the charge against him (he now has until 27 November to submit a plea) but he faces an uphill challenge being charged with the same offences as Silva. In the meantime, the player remains available for selection and is in fine form as Leeds sit currently in 3rd in the Championship table. Clearly the FA have carried out their own investigation and a lot will depend upon witness evidence. In a statement from Leeds United it states “Kiko strenuously denies the allegation and has proactively worked with the FA during their investigation to date.” The club via its Chief Executive Officer, Angus Kinnear, in this weekend’s matchday programme notes, has reiterated that the goalkeeper vehemently denies the allegation and says the FA's standard of proof is a concern, given the seriousness of the issue and its potential ramifications - a hearing at the FA will not demand that the allegation is proven beyond reasonable doubt (the criminal standard). The applicable standard of proof is the civil standard, namely one of a balance of probabilities. Therefore, if the FA Commission find there was a 51% chance that the allegations are true it will mean Casilla is facing the prospect of a substantial ban which could be up to 12 matches. It will also damage his reputation. The Casilla misconduct charge has similarities to the former Liverpool player Luis Suárez’s case when he received an eight-match ban in 2011 and a £40,000 fine for racially abusing the then Manchester United left back, Patrice Evra. Casilla will be desperate to avoid a similar sort of punishment. No doubt there will be a personal hearing where live evidence will be called before a Disciplinary Commission. Jonathan Leko will clearly be a key witness; the report from the referee, video footage and if appropriate, a lip-reading expert, will also be relied upon. Leeds and Casilla will be desperate for an unproven finding. If that’s the case, then it will be the end of the matter and the goalkeeper will be free to play with his reputation intact. On the other hand if the charge is proven, the ban could be between 6-12 matches with the likelihood of a substantial fine with FA rules stating that from the start of this season anyone found to have committed an aggravated breach faces a mandatory minimum suspension of 6 matches, which may be increased based on any additional aggravating factors. It was not so long-ago John Terry was fined £220,000 in relation to racist abuse against Anton Ferdinand in 2011. A lot will also depend on the aggravating and mitigating factors which will include Casilla’s previous disciplinary record, most of it which will be in Spain where he latterly played for Real Madrid. There could be arguments on the different cultures at play and one must remember that in the Suárez case the choice of language used by a Uruguayan, which may be deemed “acceptable” in Uruguay, is completely different in this country and elsewhere. The other slight worry for Casilla is whether a finding of guilt may lead to further legal proceedings which could have a substantial impact on not only the player but the club as a whole. In the John Terry incident, the criminal proceedings took precedent over the FA Regulatory Commission proceedings. In the end he was found not guilty of a Public Order offence of using threatening, abusive or insulting words or behaviour to cause harassment, alarm or distress although the FA Commission did impose a four-match ban together with a substantial fine of £220,000. Casilla is not believed to be the subject of any criminal investigation as yet and it remains to be seen what the outcome will be but if found guilty by the FA, one cannot rule out Casilla being charged under section 5 of the Public Order Act 1986. Clearly all very unsavoury and besmirches the image of the game. Leeds are never short of drama and will be hoping that this matter is over with fairly quickly otherwise it could derail the season – if we cast our minds back to last year there was the infamous “spygate” incident which created an unwelcome distraction from the promotion campaign; the irony being that Derby County who were the victims knocked Leeds out of the play-offs and clearly used spygate as strong motivation to find themselves at Wembley in the play-off final. Leeds and Charlton could find themselves as rivals in the push for promotion and the events on 28 September and the ramifications that follow may be this season’s distraction/determining factor in the club’s final standing in the league. Interestingly in the Silva incident, the FA’s finding concluded that the minimum six-game ban does not apply here because: “This Commission is not bound to pass a suspension of at least six matches for this aggravated breach by reason of the fact that the communication was via social media.” The incident however was exacerbated by the re-emerged Instagram story by Silva last year, in which the Portuguese player said Mendy was “completely naked”, in spite of the fact being fully clothed in black. In their submissions regarding Silva dated 29 October 2019, the FA did make reference to the decision in FA v Yannick Sagbo in which the Hull City striker Yannick Sagbo was fined £15,000 by the Commission for comments made on social media supporting Nicolas Anelka over the 'quenelle' controversy. If we cast our minds back just several months ago, Sheffield Wednesday's forward Fernando Forestieri was banned for six-matches and fined £25,000 after being found guilty of using racist language towards Mansfield Town’s Krystian Pearce in respect of an incident back in 2018. Forestieri, originally acquitted in March in Mansfield Magistrates’ Court on said allegations of racial abuse, was however in July found guilty by the FA who did conclude there was enough evidence for them to find him in breach of their rules. Forestieri did contest the FA’s guilty verdict, albeit lost his appeal and the sanction was upheld, irrespective of the FA insisting it was “not part of the case that (Forestieri) is a racist.” Arguably the long and short is that no matter how much education participants undergo, the culture in this country is seemingly very different to Spanish-speaking countries with the FA taking a zero-tolerance approach which is highlighted by the Bernardo Silva sanction. The FA are evidently determined to send out a strong message in respect of stamping out racism and rightly so, especially in light of UEFA's heavily criticised decision to force Bulgaria to play just one guaranteed game behind closed doors after their fans' racist abuse of the England players in the recent Euro 2020 qualifier last month. Declan Doherty 14 November 2019 __________________________________________________ Front Row Legal are a boutique law firm that specialises in Sport, Media and Business Law in England and Wales. They have specialist knowledge in these areas of law, which means they can help where many law firms won’t have the experience. They are based in Leeds with a national client base.

Published November 14, 2019

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