Lord Triesman, the chairman of the Football Association, wafted across our television screens earlier this evening, brushing aside questions about Alex Ferguson’s comments about referee Alan Wiley because it would be incorrect of him to comment prior to the FA reaching judgement, just as it would be incorrect to be incorrect to offer an opinion on a criminal trial prior to the jury reaching a verdict. Correct as this may be (and much as Triesman may very much have wanted to say, “to be honest, I can’t see why the strawberry-nosed old windbag won’t just shut his flaming yap, for once”), it does raise a very interesting question. What if the football authorities had to treat their disciplinary hearings like court hearings?
For the purposes of any comparison of this sort, it is probably best to consider civil law as well as than criminal law, since civil law is largely concerned with details relating to contracts and the relationships between individuals, whereas criminal law concerns the good of society as a whole. There are also other two important distinctions between the two. Firstly, criminal law is concerned with punishing rather than upholding rights. Secondly, the burden of proof is lower for civil law than it is for criminal law. For civil law, a “balance of probability” rather than “beyond reasonable doubt” as a burden of proof for passing judgement. It’s a critical distinction to make – the burden of proof is lower for civil law than it is for criminal law.
In the case of Alex Ferguson, a case could be made for saying that criminal law would be applied. In short, Ferguson may have committed slander against Alan Wiley if we consider the definition of slander to be to make a claim, expressly stated or implied to be factual, that may give an individual a negative image. However, when he sits before the FA there will be no Crown Prosecution Service putting a case against him. To be fair to Ferguson, he is not the only manager to do this. The overwhelming majority of them do exactly the same thing. This, however, hardly merits what one could describe as a valid legal defence, but the fact that – in spite of the FA’s much-mocked “Respect” programme – they all do it does make it likely that Alex Ferguson will get away with a slap on the wrists.
The case of Ken Bates at Leeds United is a very different one. When Leeds United were taken over in controversial circumstances, Ken Bates’ name was put forward as the holder of one of two “management shares” in Forward Sports Fund, the holding company that took ownership in 2007. However, an affidavit came to light in which Bates confirmed that his registration – primarily, as far as the FA are concerned, for the purposes of the “fit & proper person test”, was (in his own words) an “error”. This is a serious breach and, if this case were being seen in a court, Bates would be as guilty as Ferguson seems likely to be found. The defence of it being an “error” would have practically no basis in law. This guilt would be compounded if it were considered that this particular “error” was not rectified as soon as it was noticed.
It would be interesting to see what Bates’ explanation for this (his word) “error” is. It would also be interesting to see what Alex Ferguson’s explanation for his comments about Alan Wiley would be. It seems unlikely that this will happen, however, in no small part because short of a decision and a public statement, it is unlikely that many details of what was actually said will be made public, unlike in court, where the public are allowed free access to watch for themselves and the press can report every detail of what was said. This, perhaps, is the biggest difference between courts and an FA tribunal. In civil law, judges have a degree of discretion but everybody has to act within the confines of Civil Procedure Rules and there should be a degree of consistency in the application of laws. In criminal law, judges have book upon book of guidelines which are meant to determine the decisions that they make.
The justice system in Britain is, of course, far from perfect in many different respects. It would, however, be refreshing to to see football’s authorities deal with issues within the game with the same degree of transparency. The Football League adjourned the issues relating to the ownership of Leeds United, Notts County and Queens Park Rangers, and haven’t offered much of a reason why. The likelihood of anything changing remains slim to zero. After all, at so many levels of football, accountability and transparency seem to be somewhat out of fashion. The people running the game can choose to lead by example or they can fudge together “compromise” solutions which only serve to suit expedience. The jury of public opinion remains out, but the unsettling feeling remains that we already which of the above two options they will take if push comes to shove.