On 3 September 2021, The FA announced that Marc Bola (“the Player”), of Middlesbrough FC, had been charged with misconduct for an alleged Aggravated Breach of the FA Rules, 2021/2022 (“the 2022 Rules”), rules E3.1 and E3.2 (“the Charge”).

The Charge related to a Tweet the Player posted from his Twitter account on 14 April 2012. The Tweet has since been deleted but it is understood that the Tweet made reference to sexual orientation and was deeply offensive.

The Rules, rules E3.1 and E3.2 state:

‘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 behaviour’.

‘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’.

The Player is currently 24 years old. At the time of the Tweet subject to the Charge, the Player was 14 years old and was part of Arsenal FC’s Academy.

On 6 January 2022, the FA announced that the Player had admitted the Charge and that a Regulatory Commission had sanctioned the Player with a warning and ordered the Player to attend a face-to-face education programme (“the Sanction”).

The Regulatory Commission’s written reasons (“the RC Decision”) for the Sanction identify the difficulties between applying present-day rules or regulations to an historic offence when the offence would have been subject to a less severe punishment had it been investigated and sanctioned at the time the offence was committed.

The Sanction and the Regulatory Commission’s written reasons for the same identify three interesting points, which, following a summary of the relevant rules in this case, will be considered in turn:

(i) the Player was sanctioned in accordance with the FA Rules as they stood in 2011/2012 (“the 2012 Rules”) rather than 2021/2022 in a purported application of the lex mitior principle;

(ii) the FA conceded that the drafting of the FA’s Standard Sanction and Guidelines for Aggravated Breaches require re-drafting so that the ‘Exceptions to the Standard Minimum’ reads as also being available to minors as well as to adult Participants; and

(iii) the FA’s policy on investigating and prosecuting historical Aggravated Breaches of this nature, and how the RC Decision may affect future charges brought by the FA against a Participant who has committed a similar historical offence.

Relevant rules

In respect of any rule violation committed by the Player’s Tweet posted in April 2012, the relevant rules from the 2012 Rules were as follows:

Rule E3(1) and (2):

‘A Participant shall at all times act in the best interest 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 behaviour.

In the event of any breach of Rule E3(1) including a reference to any one or more of a person’s ethnic origin, colour, race, nationality, faith, gender, sexual orientation or disability (an “aggravating factor”), a Regulatory Commission shall consider the imposition of an increased sanction, taking into account the following entry points:

For a first offence, a sanction that is double that which the Regulatory Commission would have applied had the aggravating factor not been present…

The Regulatory Commission shall have the discretion to impose a sanction greater or less than the entry point, according to the aggravating or mitigating factors present in each case’.

‘Participant’ is defined in the 2012 Rules as follows:

‘“Participant” means… Player… and all such persons who are from time to time participating in any activity sanctioned directly or indirectly by The Association’ (emphasis added).

Rule J1(a):

‘Subject to any procedural provisions as set out in the Articles, The Association may make alterations to these Rules as and when considered necessary, so as to conform to any alterations to the Memorandum of Association of The Association or the Articles’.

Rule M1:

‘The Rules of The Association and all regulations made there under in force immediately prior to the Effective Date shall be applied in relation to all disputes in connection with proceedings which have been commenced on or before the Effective Date until the conclusion of such proceedings’.

‘Effective Date’ is defined in the 2012 Rules as ’25th May 2011’.

Comparatively, the relevant rules from the 2022 Rules are as follows:

Rule E3.1 and 2:

‘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 behaviour.

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’.

‘Participant’ is defined in the 2022 Rules as follows:

‘“Participant” means… Player… and all such persons who are from time to time participating in any activity sanctioned directly or indirectly by The Association’ (emphasis added).

Rule J1.1:

‘Subject to any procedural provisions as set out in the Articles, The Association may make alterations to these Rules as and when considered necessary, so as to conform to any alterations to the Memorandum of Association of The Association or the Articles’.

Rule M1:

‘The Rules of The Association and all regulations made there under in force immediately prior to the Effective Date shall be applied in relation to all disputes in connection with proceedings which have been commenced on or before the Effective Date until the conclusion of such proceedings’.

‘Effective Date’ is defined in the 2022 Rules as ’23 July 2020’.

Further, the following from the FA’s Disciplinary Regulations 2021/2022 (“FADR”), Part A – General Provisions, Section Two: Regulatory Commissions are also relevant:

Para. 47:

‘Where an Aggravated Breach is found proven, a Regulatory Commission shall apply The Association’s sanction guidelines for Aggravated Breaches set out at Appendix 1 to Part A: Section One: General Provisions [(“the Guidelines”)]’.

The Guidelines state that the standard minimum punishment for an Aggravated Breach, but only if it is a first Aggravated Breach, is a suspension of between 6-12 matches (“the Sanction Range”), and an education programme. The minimum suspension of six matches is known as the “Standard Minimum”. However, the Guidelines also provide exceptions to the Standard Minimum in specific circumstances:

Where the offence was committed in writing only or via the use of any communication device (e.g. on social media); and

Where the Regulatory Commission is satisfied that the individual had no genuine intent to be discriminatory or offensive in any way and could not reasonably have known that any such offence would be caused; or

The age of the individual at the time of the offence, such as when the individual was a minor (which is understood as meaning under the age of 18) at the time of the offence; or

The age of the offence, such as a social media post being made a considerable time ago.

In such circumstances a Regulatory Commission may impose a sanction below the Standard Minimum, but in any event no less than a three-match suspension. It is important to note that it is not mandatory for a Regulatory Commission to impose a sanction below the Standard Minimum even if the above-stated circumstances are present. When deciding whether to impose a sanction below the Standard Minimum, a Regulatory Commission ‘must be satisfied that the unique circumstances and facts of a particular case are of such significance that a departure from the Standard Minimum is justified to avoid an unjust outcome’ (emphasis added). Significantly, a Regulatory Commission must also consider ‘whether or not it is in the best interests of the game in tackling all forms of discrimination to depart from the Standard Minimum’ (emphasis added).

Additionally, a Regulatory Commission is to have ‘due regard to the circumstances and seriousness of the incident’ when determining the appropriate sanction and, in doing so, whether to depart from the Sanction Range. For the avoidance of doubt, this is subject to the Standard Minimum and its exceptions explained above. It is only in the rarest and acutest of circumstances that it is likely an argument could be made for a sanction to be imposed that is below that prescribed in the Guidelines.

The Guidelines also make specific provision for minors. In respect of 12-15 year olds – as the Player was at the time he posted the Tweet in April 2012 – the Guidelines state:

‘Where an Aggravated Breach of Rule E3.1 is committed in youth football by a Player aged 12-15 (inclusive), a Regulatory Commission shall impose a suspension of at least 6 Matches on that Player. The Regulatory Commission may increase the suspension where aggravating factors are present. A minimum of 1 Match shall come into effect immediately, however the Regulatory Commission may suspend such number of the remaining Matches on terms and for such period as it considers appropriate’.

Three observations can be made in respect of the relevant rules and how they relate to the Charge:

The Player fell within the meaning of ‘Participant’ under the 2012 Rules, and he has continued to be under the FA’s jurisdiction since. The Player was a part of Arsenal FC’s Academy at the time he posted the Tweet in April 2012, and subsequently became a ‘Player’ within the meaning of the 2022 Rules and earlier versions.

Further, properly put, and notwithstanding the alteration or transitional provisions of the 2012 Rules and the 2022 Rules quoted above, the Charge should have been brought on the basis that there had been a breach of rule E3(1) and (2) of the 2012 Rules as opposed to rule E3.1 and 2 of the 2022 Rules.[1] The Player’s admission of the Charge may have removed the possibility of this point being raised. However, even if this defence had been raised it is unlikely that there would have been any prohibition (i.e. pursuant to the procedural rules found in the FADR, Part B – Non-Fast Track Regulations and/or principles of res judicata) on the FA seeking permission to amend the Charge or otherwise charging the player afresh and properly referring to a breach of rule E3(1) and (2) of 2012 Rules.

The only substantive difference between the 2012 Rules and the 2022 Rules is between the mandatory minimum sanction applicable for a breach of rule E3(1) under the 2012 Rules and rule E3.1 under the 2022 Rules in the circumstances that the Player posted the offensive Tweet in April 2012. The 2012 Rules made no provision for a mandatory minimum sanction. Contrastingly, the 2022 Rules and the Guidelines (as clarified by the Regulatory Commission and explained further below) provide for a mandatory minimum sanction of an immediate one-match ban with two further matches suspended, and attendance at an education programme.

The difference in the mandatory minimum sanction applicable between the 2012 Rules and the 2022 Rules was the key issue that the Regulatory Commission had to determine when deciding upon the appropriate sanction to impose for the Player’s admission of the Charge.

Application of the lex mitior principle

The RC Decision, para. 24-25 states that it was common ground between the FA and the Player that the lex mitior principle applied, and that the Regulatory Commission decided that the Player should be sanctioned in accordance with the 2012 Rules.

In the sport disciplinary context, the lex mitior principle is usually applicable in situations where between the time that an athlete commits a sport rule violation and the disciplinary panel determining the charge there has been a rule change imposing a milder sanction than was previously applicable to the athlete’s rule violation. In such circumstances, the athlete, if found to have committed the sport rule violation, can rely upon lex mitior (the milder law) to argue that the milder sanction should apply to their rule violation.

The lex mitior principle is, in its proper sense, an exception to the tempus regit actum principle, which is the presumption against retroactivity of new rules (save for procedural rules) imposed by sports governing bodies. The lex mitior principle is applicable to the sanction element of a rule violation only, not to what constitutes a rule violation.[2]

In this author’s opinion, the RC’s Decision to sanction the Player in accordance with the 2012 Rules is demonstrative of an application of tempus regit actum rather than lex mitior. Lex mitior is ordinarily relied upon where the change in a sport’s governing body’s rules allows for a milder sanction, not where the earlier version of a sport’s governing body’s rules allowed for a milder sanction when later compared to the changed rules.[3] In the latter circumstance there is a straightforward application of tempus regit actum.

Notwithstanding that subtlety, the Regulatory Commission arrived at the same result.

When considering the appropriate sanction for the Player, the Regulatory Commission considered the following mitigating factors in the Player’s case (as required by, inter alia, the 2012 Rules, rule E3(2)):

‘… the need to balance the Player’s culpability in posting such a gravely offensive tweet which remained on his account for some time thereafter, against the fact that he offended in his ill-informed teenage years some nine years ago’;

The Player’s age at the relevant time;

The age of the offence;

The absence of any social media training at the time the Player posted the offensive Tweet;

The Player was otherwise of good character;

The Player had demonstrated genuine remorse and had apologised for the offensive Tweet; and

The Player admitted the Charge promptly (RC Decision, para. 39-44).

The Regulatory Commission consequently considered that justice was achieved in this case by imposing the Sanction (a warning and attendance at a face-to-face education programme), in compliance with the limited sanction guidelines in the 2012 Rules, rule E3(2).

Correction to the Guidelines

The FA conceded that the Guidelines require re-drafting so that the ‘Exceptions to the Standard Minimum’, as explained above, expressly state that they are a defence available to minors as well as to adult Participants. The current drafting of the Guidelines is unclear, and on one interpretation can be read so that mandatory minimum sanction for minors found to have committed an Aggravated Breach is a the Standard Minimum, even if the circumstances exist that would otherwise make available the ‘Exceptions to the Standard Minimum’ (e.g. where the Aggravated Breach was committed in writing etc.). This is a welcome clarification.

The RC Decision, para. 14 states:

‘During the course of the Hearing the Commission asked Ms Turner [(Regulatory Advocate)] whether it was the FA’s case that the ‘Exceptions to the Standard Minimum’ provision applicable to an adult Participant, was also relevant to a minor. Ms Turner confirmed that the special provision for minors should read as if reference had been made to the applicability of the exemption provision (providing for a reduction from the standard minimum of 6 matches to one of 3 matches). The fact that the minor’s provision did not presently contain such a reference was described to be a “deficiency” in the drafting. The FA have indicated an intention to amend the provision to bring greater clarity to the guidance’.

The FA’s policy on investigating and prosecuting historical Aggravated Breaches

There was criticism aimed at the FA for its decision to bring the Charge. The mitigating factors identified above and taken into account by the Regulatory Commission make that criticism understandable. However, there are two important counter-arguments that help to understand the FA’s decision to bring the Charge. Firstly, and pre-eminently, the deeply offensive nature of the Player’s Tweet. Secondly, the FA’s position as the principal body for dealing with misconduct in English football and its need to comply with its objects as stated the FA’s Articles of Association, article 88.1.2:

‘The objects for which The Association is established are:

…

to govern the game of association football… and in doing so will seek to:

…

(a) enforce rules and regulations of The Association… for participants and take all such steps as shall be deemed necessary or advisable for preventing infringements of the rules and regulations of The Association… and

(b) continue to encourage and promote compliance by all participants with best practice guidelines and work to address discrimination in all its forms, pursuant to the relevant Laws and the rules and regulations of The Association’.

A further criticism against the FA, and as raised on the Player’s behalf before the Regulatory Commission, was ‘a recent incident in which another professional player (“Player A”) had apparently posted a similarly offensive tweet in markedly similar circumstances to that of the Player… Mr Cusack [(the Player’s legal representative)] observed that  Player A had not been charged, had attended an educational course and received a warning as to his conduct from the FA’ (RC Decision, para. 33-34).  It is understood from news reports that Player A, currently a Premier League footballer, posted a Tweet in October 2012 when he was 15 years old that made reference to race and was offensive.

The FA did not charge Player A for a breach of the 2012 Rules but the FA warned Player A and he was required to attend an education course (i.e. the same sanction received by the Player). Notably, it was also reported that Player A did not fall within the definition of ‘Participant’ (see above) at the time of his offensive Tweet, which is a significant factor distinguishing Player A’s case from the Player ’s case and explains why the FA did not charge Player A for a breach of the 2012 Rules.

The Player’s case and Player A’s case identify one difficulty the FA will have in maintaining perceived consistency in such situations: whether the individual concerned was under the jurisdiction of the FA at the time of the conduct.

Further, the application of tempus regit actum undermines the Guidelines and the stricter sanctions sought to be imposed for an Aggravated Breach. This particularly applies to conduct that took place by a Participant before 21 May 2014, the effective date of the FA Rules 2013/2014 (“the 2014 Rules”), and generally to conduct that took place before the introduction of the Guidelines in August 2020. The 2014 Rules, rule E3(4) introduced updated guidelines applicable to an Aggravated Breach committed in writing and which appeared in subsequent updates of the FA Rules or Disciplinary Regulations in similar iterations until the Guidelines were introduced. While the updated guidelines in the 2014 Rules still did not impose a mandatory minimum sanction for an Aggravated Breach of this nature, reference to a mandatory minimum sanction of a five-match suspension otherwise applicable for offences committed other than in writing saw sporting sanctions being imposed. This can be seen in the cases of Andre Gray, Bernardo Silva and Dele Alli.

The presence of jurisdictional issues, and the possibility of lenient sanctions, could prevent or deter the FA from prosecuting historical Aggravated Breaches committed in writing. However, considering that the FA accepted that the Player should benefit from the milder law applicable in the Player’s case (RC Decision, para. 25) and the objects identified in the FA’s Articles of Association, in this author’s opinion, it is likely that the FA will continue to bring charges for historical Aggravated Breaches committed in writing.

FOOTNOTES

[1] Sport: Law and Practice, (Bloomsbury 2021, 4th edn.) Chapter D1, para. D1.25.

[2] Ibid. Chapter B1, para B1.44 (3).

[3] Andrea Anderson et al v IOC, CAS 2008/A/1545, para. 10-11; Meca-Medina v FINA, CAS 99/A/234, para. 3.5.