The Football Association v José Mourinho (case no. FT/TA/18/0404)
It has not been the best of years for José Mourinho. Zinedine Zidane has recently beaten him to the job of Real Madrid manager, following his sacking by Manchester United in December 2018 after a well-publicised poor start to that season. His misery could not have been helped by the decision of the Football Association ("FA") to bring disciplinary proceedings against him for using "abusive and/or insulting and/or improper" language immediately after a match against Newcastle on 6th October 2018 which, ironically, was a game that Manchester United had won.
The language in question was inaudible, and in Portuguese, as was later established by lip-reading from the television footage. The expert evidence was that the contextual translation of what he had said was "f... yeah" or "hell yeah", spoken in a celebratory manner. The literal translation of what he had said was, however, significantly more fruity, and capable of giving offence. Which version should be considered?
The first disciplinary panel found that it should not consider the words used "in a vacuum" and that it should take the context into account. It accepted the evidence "that a typical person fluent in Portuguese colloquialisms would not feel insulted or offended...." but would understand Mr Mourinho's words as indicative of happiness. Mr Mourinho was cleared of the charge.
The FA appealed and its appeal was successful on the basis that, whilst context was important, the "reasonable bystander" test had not been correctly applied. The Appeal Panel found that a reasonable bystander would not have been able to understand Portuguese colloquialisms, or have been able to determine that a literal translation might not properly convey the meaning and intent of the phrase used. The reasonable bystander, in the appeal panel's view, would have found the words used were the literal meanings, which were abusive, offensive or improper.
Having made that finding, a second issue fell to be considered, that of "legitimate expectation", which was remitted back for a fresh disciplinary panel to consider (the first disciplinary panel having not considered it in view of their finding on the first issue). This is a principle of public law under which, amongst other things, it is regarded as inherently unfair for a public authority to change its policy without warning or good reason. While the FA, like other sports governing bodies, is not a "public authority" (as the law presently stands), it was accepted by both parties that the FA is subject to the supervisory jurisdiction of the law and must abide by principles of public law.
The second disciplinary panel found that the FA's practice had been to take no action for swearing alone on or around the field of play, even if inadvertently picked up by live broadcast cameras (since, otherwise, their disciplinary panels would be inundated with such cases!).
The case of Wayne Rooney, who had received a 2 match suspension for swearing at a broadcast camera, was distinguished from Mourinho's as Rooney had deliberately sought out the camera, had used the "F" word audibly and in a manner consciously directed at the viewers. Further, there had been numerous instances where the FA had taken no action in circumstances as bad or worse than those in this case, including the notorious case where Mourinho himself, when manager of Chelsea, had sworn at the club doctor, Dr Carneiro, during a game.
The conclusion was, therefore, that Mourinho had been unfairly singled out for disciplinary action, his defence of "legitimate expectation" succeeded, and the charge was dismissed.
Points to Note
The case illustrates the importance of public law principles in the application of disciplinary procedures by sports governing bodies. Whilst the Courts have traditionally shown themselves to be reluctant to interfere with the internal processes of such bodies, which have a wide discretion in the application of their rules, that is predicated on those bodies applying the law fairly, in the application of their own procedures. Fairness requires, of course, that disciplinary measures are not arbitrarily applied.
Sports governing bodies would be prudent, therefore, to take legal advice in the drafting of such procedures as well as in relation to their application. A "legitimate expectation" defence can be avoided relatively easily by clarity and consistency in any disciplinary action, and by notifying those potentially affected of any changes of policy or procedure.
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