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Crystal Palace FC’s Wilfried Zaha is one of the fastest players in the Premier League. He is also one of the most fouled. After a number of serious challenges in a match at Southampton at the end of January, Zaha was booked for his reaction to a player who had just pushed him over the touchline. He sarcastically applauded the referee in response to the yellow card, which was then followed immediately with a second yellow and therefore a red. As he left the field, Zaha sarcastically applauded the referee again, on more than one occasion, and did so “theatrically” according to the Football Association (FA). This led to him being charged with misconduct outside the jurisdiction of the match referee.

The proceedings were conducted under FA fast track rules, meaning the Regulatory Commission hearing took place just before Palace’s Premier League home match against West Ham. Zaha accepted he was in breach and apologised, explaining his frustration got the better of him. It was his first ever red card in the Premier League, and he had already served a one-match ban as a result of it. His main argument was that given other Commissions had found the appropriate penalty for a player who aggressively confronted a referee after being sent off was a one-match ban and a fine, and that aggression is more serious than sarcastic applause, a one match ban was not appropriate. The Commission imposed a one-match ban and a £10,000 fine.

Zaha appealed on the grounds that the one-match ban was excessive. The effect of his appeal was to suspend the ban until after the appeal was heard, which meant he was available to play the match against West Ham. Somewhat surprisingly, the FA had, unsuccessfully, argued that the ban should not be suspended, which would have meant the Player would have served the ban even if he went on to win his appeal, rendering the appeal provisions futile. 

Zaha’s appeal was unsuccessful. Essentially, the Appeal Board (Chairperson, Mr Graeme McPherson QC) found that while aggressive conduct following dismissal would frequently justify a suspension, it was not a pre-requisite to a suspension being imposed [44], and “that the Player’s overt, protracted and repeated conduct ‘totally undermined the referee’.” [47]

But perhaps of more general interest was the Appeal Board’s decision on two issues that may arise in other appeals: the meaning of “excessive” under the appeal provisions and when the match ban should take place.

The meaning of “excessive”

A common ground for appeal under various FA provisions is that the penalty of sanction imposed was “excessive”. The Player argued excessive meant “materially more than was necessary or proportionate in the circumstances of the case”. Importantly, the rules did not use the words “manifestly excessive” commonly found in other appeal regimes. While the FA appeared to agree with this definition, it went on to argue that an Appeal Board should not interfere in the decision of a Regulatory Commission unless it concluded the sanction was “one to which no reasonable Regulatory Commission could have come”.

The Appeal Board rejected this argument, noting the difference between the wording of the regulation allowing a Participant to appeal against a penalty that was excessive and to appeal against a decision that no reasonable body could have come to, and they noted “that there may be instances where application of each test leads to different results” [33].

When the match ban should take place

The appeal was heard the last working day before the Club’s 5th round FA cup fixture, and so the practical effect would be for Zaha to miss that match instead of the next Premier League fixture. The FA invited the Commission to consider imposing the ban on the next Premier League match (against Leicester City). This was rejected:

“During the course of those submissions it became apparent that there was a concern (on the part of both the Player and the FA) that the Player’s appeal from the Decision of the Commission has been perceived in some circles as an attempt to manipulate the date of any suspension and thus to enable him to play in one match at the expense of missing another. Whilst we cannot influence how others might think, we make it clear that there is no basis for such a conclusion in this case. The Player had a right to appeal against the Decision of the Commission. The Decision of the Commission was reached by a majority rather than unanimously. While we have ultimately dismissed the appeal, the appeal was in no way vexatious or frivolous – the Player was perfectly justified in commencing and pursuing the appeal. The Player has not ‘manipulated’ the timing of the appeal or the fixture from which he will be suspended.” [58]

With respect, that reasoning was both fair and sensible. It would be wrong for Regulatory Commissions and Appeal Boards to themselves manipulate the timing of match suspensions because of potential public perceptions, rather than to follow the Rules. The Commission had imposed a one-match ban “from all domestic club football until such time as [the Club] has completed one (1) first team competitive fixture in an approved competition”; it had not focussed its sanction on a Premier League match.

On the other hand, Participants should be warned that a frivolous or vexatious appeal, brought only to manipulate the timing of a sanction and with no prospects of success, may be good grounds for increasing or varying the sanction.

The FA Appeal Board’s written reasons can be found here.

Nick De Marco QC (instructed by David Nichol, Head of Legal, Crystal Palace FC) acted for Wilfried Zaha.

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