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Anelka Stands Accused – a Legal Overview

Wed 26th Feb 2014 | Legal

With Nicolas Anelka’s disciplinary hearing by an independent regulatory commission expected to be completed by the end of the week, Thomas Barnard, Solicitor at Thomas Eggar LLP gives an overview of the charges and the rules that they relate to.

A three-man Regulatory Commission, established pursuant to the Football Association’s Rules and Regulations, will this week determine whether to sanction West Bromich Albion striker Nicolas Anelka.

Anelka stands accused of committing an “aggrevated breach” of The Association’s Rule E3 which outlaws racially abusive behaviour.  The charge relates to Anelka’s goal celebration, in December 2013, when he performed a “quenelle” gesture (described as an inverse Nazi salute).

 

Rule E3

Rule E3(1) is the provision of the FA Rules governing players’ behaviour.  It provides that players shall not “act in any manner which is improper or brings the game into disrepute or use…violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour”

Rule E3(2) goes on to state that a breach of Rule E3(1) is an “aggravated breach” (which draws an enhanced sanction) where it includes a reference to “ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability”

If Anelka is found to have committed an aggravated breach, he can expect to receive a five match ban at least (Rule E3(3)(1)).

The Regulatory Commission hearing Anelka’s case will first have to first determine what it is that those prosecuting have to establish.  The key point in this regard will be for the Commission to decide whether or not Anelka had to have a settled intention to be anti-Semitic (the player says, as you would expect, that he had no intention). For example;

 

  1. Can Anelka be found guilty of an aggrevated beach where he had no intention of expressing anti-Semitic views; or

 

  1. Do Anelka’s prosecutors have to establish that it was the player’s intention to express anti-Semitic sentiments.

 

This is because Rule E3 is silent as to whether it is a “strict liability” offence (ie a player would be guilty regardless of whether they intended to refer to race or religion, for example).

 

The composition of the Regulatory Commission

The composition of the Regulatory Commission is determined in accordance with FA’s judicial panel rules.  In short, members are drawn from various categories, with the player appearing before the panel having an option to require that the Chairman of the panel be a “Special Panel Member” or a solicitor or barrister with significant experience.

It is not known whether Anelka will challenge the composition of the regulatory Commission in the likely event it finds against him.  However, the player is considered likely to appeal any sanction.

 

The sanction

The Rules require a minimum 5 match ban if the offence is found to be aggravated.  At this time, because the Rules are newly implemented, there is little precedent available in determining the sanction Anelka will face.  John Terry received a 4 match ban, and Luis Suarez an 8 match ban, when their actions were found to carry rascist connotations. 

Many commentators are suggesting that Anelka’s ban is likely to be longer as there are aggravating factors.

Either way, Anelka or his prosecutors can be expected to appeal any sanction imposed and this week’s Regulatory hearing is unlikely to be the last in the matter.

 

Thomas Barnard, Solicitor, Thomas Eggar LLP

Image: Action Images / Carl Recine Livepic

Posted by: Aaron Gourley 

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