Barton, betting and football’s ticking time bomb: Joey Barton v The FA

The written reasons for the Appeal Board’s decision are available here. The appeal brings to an end a case involving the highest profile betting ban in English football that shined a light on some of the contradictions involved in The FA’s Betting Rules. By reducing the period of suspension to 1 June 2018, instead of the middle of the following football season, it means there is a good chance Mr Barton shall be able to play at the top level of football again, as opposed to being consigned to an early retirement from the game.

Mr Barton was charged with 1260 bets on football in breach of The FA’s Betting Rules over a 10-year period ending in September 2016. His bets were part of a wider, and much larger, pattern of betting on all sports. Only a tiny fraction of the bets subject to the charges were on his own team; he did not play in, and was not in the squad for, any of the matches that he bet on his team to lose, and those bets were amongst the oldest in the 10 year period. The Regulatory Commission that imposed the original 18-month ban accepted Mr Barton had no influence on any of the games he bet on and that there was nothing suspicious about any of the bets he placed; he actually did more poorly whenever he bet on his own team (paragraph 139 of the Regulatory Commission’s decision). Mr Barton bets were placed openly, using his own name and account.

Despite all of this, in April 2017 the Regulatory Commission imposed one of the longest suspensions against a player under the Betting Rules, banning Mr Barton from all footballing activity for a period of 18 months. It is worth recalling the suspension from all footballing activities does not just prevent Mr Barton earning a living from playing professional football. The severe punishment also prevents him playing or training with an amateur non-league team. Indeed, he has apparently been told he cannot even participate in a celebrity charity game, featuring non-footballers.

The 18-month ban was out of all proportion to previous decisions by other FA Regulatory Commissions; the longest period a player had been banned for when he bet against his own team but did not play in the match was 6 months; players who had been banned for 12 months or longer had not only bet against their own team, they had also played in the games (and thus may have influenced them), had used inside information, or had highly suspicious returns on their bets.

The Appeal Board did not accept Mr Barton’s arguments about the sanction being excessive compared to other FA cases, finding at paragraph 34 that previous cases are not binding and each case turns on its own facts. Considering the FA Sanctioning Guidelines allowed for a wide discretion in sanction where a player bets against his own team, from 6 months to life, the Commission had been entitled to take into account the number of bets and other factors in imposing an 18-month ban.

However, the Commission had unreasonably rejected part of the expert evidence called by Mr Barton. Dr Hopley, a “most distinguished expert consultant psychiatrist” (paragraph 40) had given comprehensive evidence about Mr Barton’s addiction to betting on sport. That addiction, as opposed to anything suspicious, explained much of Mr Barton’s betting behaviour, including the number and frequency of his bets. It was an important mitigating factor.

The Commission, having accepted parts of Dr Hopley’s evidence, rejected other parts finding instead in favour of The FA’s submissions that the addiction was not as significant as might otherwise be the case. The FA’s submissions were not based on any expert evidence, and the Commission failed to explain why they rejected the otherwise compelling evidence of a leading independent expert. This matter troubled the Appeal Board:

[39] Clearly this is not a satisfactory position to be in where there should be reasons for accepting or rejecting evidence, especially expert evidence. With questions of fact it may be obvious why evidence was not accepted. Where there are competing experts, it may be that one is preferred above the other in which case the reasons will be clear from the evidence regarded as preferable even if not repeated in the decision. However, in this case the degree of control is a crucial issue and there was no opposing expert opinion. It was not disputed that he had a general gambling addiction.  […]  [41] The Appeal Board sees no reason why that evidence was found unpersuasive, in the absence of countervailing evidence. It was a crucial part of Mr Barton’s case as it would be for any addiction case. The Appeal Board also considers if that expert opinion had not been rejected there would have been significant further reduction in the period of suspension.

In the circumstances, the Appeal Board found the Commission’s rejection of part of the expert evidence to be unreasonable and they exercised their discretion to reduce the sanction from 18 months to just over 13 months, so that it expired on 1 June 2018 (paragraph 42).

The reduction in sanction amounted to a discount of nearly a third but, more crucially, amounts to a difference between what would have practically been a lifetime ban and a one season suspension. As submitted on Mr Barton’s behalf, the 18 months imposed by the Commission meant Mr Barton would miss not only one whole season but also pre-season and the first half of the following season. Considering the football contract cycle, that meant it was in real terms a two-season ban and, considering Mr Barton’s age, would almost certainly be equivalent to a life time ban. A ban that allowed him to participate in the next pre-season and full season means there is a real chance Mr Barton could return to professional football. 

It is to be welcomed that an FA Appeal Board allowed Mr Barton’s appeal given the high profile nature of the proceedings and the fact that there has been no secret about the bad blood between Mr Barton and The FA. The decision restores some confidence in the independence of the appeal process.

Yet many of those who represent players, football clubs and intermediaries before FA Commissions continue to have concern about the tendency to ignore previous decisions of other Commissions or Appeal Boards, particularly in relation to sanction. Of course it is the case that each case turns on its individual facts, and that there is no formal system of binding precedent, but nevertheless wildly different results by different commissions considering similar cases cannot be in anyone’s interests. It can lead to the perception that the length of a penalty depends too much on the constitution of a Commission or the public reputation of the player or club, as opposed to the real merits of the case. Given that ‘a level playing field’ is crucial to the regulation of sport, and that public confidence in the integrity of the sport can be undermined by seemingly arbitrary treatment of different parties just as it can be by, for example, players betting on football, The FA and some of its Commissions ought to re-think their reluctance to take into account their own decisions in other cases. Not only would this restore further confidence in the quality of FA decisions, but it would also serve as an important guide to all those who are supposed to follow The FA Rules.

Betting is a good example. The FA have Sanction Guidelines that, until recently, they have kept largely secret from players. These show that if a player bets against his or her own club s/he can face a ban of anything from 6 months to life. Such a wide discretion is bound to lead to unfairness unless Commissions are prepared to consider how other Commissions dealt with similar cases. Otherwise one player can end up with a 6-month ban for essentially the same thing as another gets a 4-year ban for. That cannot be right.

One way to avoid this is for greater clarity to go into the Guidelines themselves. For example, the general range could be set at 6 months to life, but it could specify that, usually, if a Player bets against his own team but does not play in the match or use any inside information the sanction should be at the lower end, for example 6-12 months, depending on all the other factors. If a player plays in the match it might be 1-2 years. If he also uses inside information 2 years plus, and so on. This would reflect the approach most Commissions have taken in previous cases, which is why Mr Barton argued for it in his case. If the Guidelines were more helpfully drafted in this respect Mr Barton would have never had the excessive 18-month suspension imposed on him, and there would have been no need for his appeal. More importantly, other players could understand the consequences of their actions before they take them. This is hardly a radical proposal, it would mean the Guidelines more closely resembled carefully drafted sanction guidelines The FA uses in other cases, involving discrimination for example, or that sport applies in doping.

The importance of expert evidence and Commission’s providing clear reasons is the other significant point to arise from the Appeal Board’s decision. It shall remain a rare case where expert evidence is necessary in a football disciplinary, but where it is called Commissions ought to accept it unless there is either alternative, better, expert evidence or there is some good reason to reject it. And if a Commission is going to reject it then it needs to give clear and rational reasons for doing so in its decision. Failure to do so is likely to lead to successful appeals, as in this case.

Though not the subject of any discussion in the proceedings themselves, coverage of Mr Barton’s case focussed on a wider issue of importance to football. Football’s dependency on the gambling industry sits uneasily with its strict rules prohibiting any football participant from making a bet on football. As Mr Barton said in his statement following the Commission’s decision:

there is a huge clash between [FA] rules and the culture that surrounds the modern game, where anyone who watches follows football on TV or in the stadia is bombarded by marketing, advertising and sponsorship by betting companies, and where much of the coverage now, on Sky for example, is intertwined with the broadcasters’ own gambling interests.

In the 2016-17 football season, Premier League clubs earned over £225 million from sponsorship alone. Half of all Premier Clubs had gambling companies as their main front of shirt sponsor. Players of those 10 teams are required by contract to promote betting on sport, by simply wearing their shirts, at the same time as being told that it is a strict offence for them to do what they are promoting.

The FA itself was until recently sponsored by the betting industry. In June 2017, during the run up to Mr Barton’s appeal, The FA announced it was ending its sponsorship deal with Ladbrooks, sighting concerns about “integrity and trust” in football. The coverage of the decision linked it with Mr Barton’s criticism of football’s dependency on gambling.

The contradiction between football’s increasing financial dependency on betting on the one hand and its outright ban on anyone involved in football betting on the sport on the other may be a ticking time bomb. Can anyone seriously imagine runners in athletics being paid to promote performance enhancing drugs on the one hand and being banned from using them on the other?

There are no doubt important wider arguments beyond the scope of this article about the need for tighter regulation of gambling and the advertising of betting companies – not least because of the social ills addiction to gambling inflicts. But for so long as football encourages betting on football it is inconsistent to impose an outright ban on football betting. The real justification for it is based on the difficulty of identifying match fixing. But it is a lazy and unsatisfactory answer to that problem, which no doubt needs more expertise and resources, to simply ban football players and other participants from betting on any football especially when they are themselves encouraged to promote the very thing they are banned from doing. 

Nick De Marco represented Mr Barton at his Appeal hearing, and also in relation to the betting charges before the Regulatory Commission and betting charges before The Scottish FA.