When Andy Carroll was sent off for a foul on Chico Flores, Sam Allardyce was left bemused claiming Howard Webb was swayed by Chico Flores’ squealing. West Ham vowed to fight the decision, appealed to the Regulatory Commission on the grounds of wrongful dismissal but ultimately a 2-1 majority held that the suspension should remain. What’s worth remembering is that the rules state the Regulatory Commission’s decision is final and no appeal process exists from this point onwards. But so aggrieved were West Ham; they threatened to take the FA to the High Court after their initial appeal was rejected and the FA refused to grant an arbitration hearing. The threat of legal action however forced the FA’s hand. Court action would mean there’d be serious risk that the disciplinary process would enter into chaos.
What was agreed on was an independent Arbitration Tribunal, permitted in the FA handbook. Importantly, this is very different from a typical Regulatory Commission hearing. It is not concerned with the substance of a decision by the Commission or any other Appeal Board. Instead it allows clubs to challenge decisions based on the law of ultra vires (so if the Regulatory Commission exceeded their powers or there was an error of law), irrationality or procedural unfairness. West Ham argued the decision should be challenged in two specific areas:
- Error of law – This is an ultra vires challenge. West Ham felt that the Regulatory Commission had used the wrong test in its decision in upholding the suspension. The test which the Commission used was called the obvious error test which will be explained in detail later.
- Procedural unfairness – West Ham also believed that Andy Carroll was entitled to give oral evidence at the Regulatory Commission hearing. He only submitted written evidence at the time.
Things rarely seem to run smoothly when it comes to law, especially in the fast-paced nature of sports. An independent Arbitration Tribunal would not be possible until after Carroll’s suspension started. He was scheduled to miss the game against Aston Villa on 8th February and even if the Tribunal were to rescind the ban, he’d still have missed out on this particular game. FA rules however allow for interim applications. This allowed West Ham to put forward an argument for the suspension to be put on hold until the full tribunal had come to a decision and avoid any potential injustice. Because after all, if Carroll were to serve his ban and the full arbitration tribunal were to later overturn the ban, it would be greatly unfair on the club and the player. The whole process goes a little something like this:
The interim tribunal was set up the day before the Aston Villa game and led by Nicholas Stewart QC. The task of these tribunals is not to decide an outcome of a particular injustice but to decide whether the claimants hold a serious prospect in persuading the tribunal that the Regulatory Commission were wrong – in this case do West Ham have a serious chance in demonstrating there was an error of law and procedural unfairness occurred. This precedent is actually established from the American Cyanamid principles which consider whether the claimant has a strong enough case, whether any potential injustice could be covered by damages, the balance of conveniences and preserving the status quo. The interim tribunal felt that West Ham’s case was likely to fall short in front of the full independent arbitration tribunal so there was no need to consider the remaining principles.
Why did their argument fall short? Well fundamentally there was no procedural unfairness. West Ham claimed that Andy Carroll should have been allowed to submit oral evidence at the original hearing. The rules state that a claim for wrongful dismissal can only be supported by written and/or video evidence yet West Ham argued a party cannot contract out of a right to an oral hearing if procedural fairness requires it. To put it simply, procedural fairness did not require an oral hearing. Allowing oral hearings comes down to whether the facts of the case demand it and in this particular context they did not. The gravity of the situation was not enough to justify an oral hearing – it was one player, banned for only three matches. While the interim tribunal noted the precarious position of West Ham in the league, it was still felt this did not do enough to make the situation important enough. As highlighted in the decision, the circumstances were not affecting somebody’s liberty of livelihood. Furthermore, it seems unlikely that had Andy Carroll been allowed to provide oral evidence the Regulatory Commission would have changed its mind.
The other argument was based on an error of law. To sum up briefly, the Regulatory Commission used a test called the obvious error test to decide whether Howard Webb had made an obvious error when sending Carroll off. The Regulatory Commission took this view as rules state that when considering claims for wrongful dismissal the club is required to prove the referee made an obvious error when sending the player off. West Ham believed that the Regulatory Commission should have used a less strict test which considered whether on the balance of probabilities the dismissal was wrong. The interim tribunal felt that even if the Regulatory Commission had used the wrong test, there was no evidence in its conclusions that they had been tainted by that misconception. The majority decision of the Regulatory Commission held that Howard Webb was right and certainly didn’t hold him to be obviously wrong. Essentially, even if the test had been less strict, the same conclusions would have been drawn.
The confusion on which test should be applied stemmed from the interpretation of the FA’s rules and regulations and their desire to protect referees. Nothing in the regulations of wrongful dismissal states that the obvious error test should be used. The FA argue that the reasoning behind is to not interfere in refereeing decisions unless absolutely necessary. It seems however that issues involving interpretation won’t go away unless the FA amend the rule to be more express. The interim tribunal even noted the problems with this poorly drafted piece of legislature saying it wouldn’t be difficult to expressly state that the obvious error test was the correct test to use in its rules.
Interim injunctions carry a lot of weight – arguably more so than the full independent arbitration tribunal. It is important for the integrity of football to be respected and serious consideration should be given to whether such injunctions are being misused. While the case before us shows no sign of exploitation, we should be mindful that clubs with a lot of stake could use these injunctions as a way of ensuring a star player is available for a match. The FA are attentive to clubs abusing such processes to manipulate periods of suspension and matches that are affected.
I’d recommend reading the interim tribunal decision as Nicholas Stewart QC does a really good job of neatly bringing everything together but I felt a blog post on the circumstances would make it a little more accessible to everyone. It also seemed like a good idea to explain how the various appeal processes work as we tend to hear a lot about them happening but not an awful lot about how they pan out – just whether they’ve been successful or not!
- West Ham United Football Club v The Football Association Ltd – Reasons for decision
- The FA Handbook 2013-2014
- Disciplinary Procedures 2013-2014, Field Offences & Fast Track
Disciplinary Procedures 2013-2014, Field Offences & Fast Track, Section A, Regulation 5(l)