UK: Why Always Super Mario?

Introduction

On Friday the FA charged Liverpool player Mario Balotelli for reposting an Instagram message containing iconic computer game star Super Mario which included the words that Mario "jumps like a black man and grabs coins like a jew." The message was believed to have been promptly deleted by Balotelli who then tweeted "My Mom is jewish so all of u shut up please". The tweet was in reference to his foster mother, Silvia who is Jewish.

In their charging statement here, the FA stated that:

"It is alleged the Liverpool player breached FA Rule E3[1] in that his posting was abusive and/or insulting and/or improper. It is further alleged that this is an 'Aggravated Breach' as defined by FA Rule E3[2] as it included a reference to ethnic origin and/or colour and/or race and/or nationality and/or religion or belief."

Balotelli has until 6pm on 15 December 2014 to respond to the FA's charge and provide any necessary submissions.

Assessment

The context and nuances of this specific charge make the FA's deliberations somewhat more complex. It would appear doubtful even though Balotelli has been subject to previous racist abuse for being black or that his foster mum is Jewish that the Regulatory Commission use these factors as the basis for a not guilty decision. This is in part because the wording of the regulation is relatively narrow and objective. FA Rule E(3) states:

"(1) 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 behavior.

(2) 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." (emphasis added)

If Balotelli decides to challenge the charge, it appears likely he will be found guilty (the FA's success rate is over 99% from figures produced a few years ago), and it is equally likely that the breach will be found to be an aggravated breach because he makes reference in his Instagram post to various nationalities including Jewish and black stereotypes.

Ferdinand Precedent

It instructive to briefly review the recent Rio Ferdinand FA Regulatory Commission Decision which can be accessed here  . This was the first instance of a Premier League player being banned from playing as a result of a social media message. He replied to a Twitter follower by calling their mother a "sket" which was explained in the written reasons to be a promiscuous woman. He was banned for three matches and fined £25,000.

The Ferdinand Regulatory Commission Decision rationale for the fine and 3 game sanction included that:

• "With nearly six million followers Mr. Ferdinand is clearly an experienced twitter user and he should know better than to respond in the way that he did";
• He has a responsibility as a global role model and as an experienced Twitter user should have known better;
• He made no formal or direct admission and there was  no sign of remorse or contrition;
• He made no formal response to the charge; and
• It was Ferdinand's second aggravated breach in less than three years after his previous "choc-ice" comment.

As such, by taking the Ferdinand Decision as a useful precedent, it would appear that Balotelli's circumstances are distinguishable. Balotelli did not draft the offending message though he did repost it, he apologised quickly for his actions, he is likely to respond to the charge, he has not (to this authors' knowledge) been found guilty by the FA of a previous aggravated breach and as such it is his first offence. This would all point to a more lenient sanction than Ferdinand received. It should be considered in the alternative that the FA may be of the opinion that as there were multiple references to race and religion which were deemed insulting and/or abusive, Balotelli's social media post may be a more serious breach.

The Sanction

If, as briefly explained above, a guilty FA verdict is the likely outcome, the next question is what Balotelli's sanction will be and specifically ways to mitigate/reduce any potential ban.  Balotelli's lawyers may suggest to the Regulatory Commission that:

1. He understands being racially abused. He mistakenly and inappropriately thought he was reposting a picture that highlighted an anti-racism message which in hindsight had the opposite effect.
2. He was reposting of an image he initially saw and this should attract a lesser sanction than a personally drafted post or tweet.
3. There is an explicit, reduced game ban carve out for an electronic communications aggravated breach (as set out below) which should mean a shorter ban than five matches. FA Rule E (3)(4) states that:

4. He quickly and unequivocally apologised explaining that the post:

Conclusion

All of the four categories of mitigation (plus others no doubt) will be used to try and reduce the sanction of any guilty FA decision. An FA decision could happen before the New Year. Expect that Balotelli will be likely to be found guilty. The question is whether he will receive a more lenient sanction than Ferdinand. There are distinguishing features which could point to less than a 3 game ban. However, a larger ban should not be ruled out because of the multiple breaches that potentially occurred.

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