FA’s Regulatory Commission Decision raises questions as to the legality of stadium bans

On 11 March 2014 the FA’s independent Regulatory Commission handed down the most severe managerial punishment in Premier League history against Alan Pardew, manager of Newcastle United. On 19 March the  Commission published the written reasons for its decision.

The background to the decision is well known. On 1 March , in the 72^nd minute of the match between Hull City and Newcastle United, Hull City midfielder David Meyler drifted into the Newcastle technical area in order to recover the ball. He pushed Pardew out of the way. Pardew reacted by moving towards Meyler and pushing his head towards Meyler’s face, a gesture that has been widely reported in the media as a headbutt.

Pardew was charged by the FA with a breach of FA Rule E3 (misconduct). The FA had exercised its discretion to designate Pardew’s breach a “Non Standard Charge” because of the “aggressive and/or violent and/or serious nature” of the behaviour, which meant that its Tariff of Standard Penalties need not apply. Pardew admitted the charge, but requested a personal hearing before the Regulatory Commission to make submissions on mitigation.

The Decision

Pardew was banned from any stadium in which Newcastle were playing for three matches, and banned from the touchline for a further four. He was fined £60,000 in addition to the £100,000 he had already been fined by Newcastle United. The written reasons are terse, running to only four pages. The Regulatory Commission stated that it had taken into account Pardew’s previous record of misconduct, and also the salient points in mitigation, including that he had clearly accepted responsibility for his actions on the day, and had meant no physical harm to the player and there was no attempt to use force. They also considered the impact of this type of incident in football generally, and the high profile of both Pardew and the club. In their view this was “a serious incident which has to be sanctioned accordingly but at the same time proportionately. Counsel on behalf of Mr Pardew referred the Commission to previous cases of misconduct. It must be made clear that although some guidance may be taken from other cases, each case must be determined on its own individual merits and facts.”

Although not set out expressly in the reasons, previous cases examined by the Commission might well have included Paul Ince, the manager of Championship side Blackpool, who received a five match stadium ban in October 2013 for violently pushing the fourth official in the chest, having already been sent off. More recently, West Bromwich Albion player Nicholas Anelka was issued with a five match suspension and £80,000 fine for making the “quenelle” gesture, an offence which was aggravated by race and/or religion.

The Regulatory Commission stated at paragraph 17 of its reasons that it had initially considered a 5 match stadium ban and a higher fine, but having taken into account the mitigating factors, and the action already taken by Newcastle United, reduced the punishment accordingly. Nevertheless, no Premiership Manager has ever received such a lengthy ban. The previous holder of the record was Alex Ferguson, who was handed a five game touchline ban in 2011 for his comments on the referee’s handling of the game. Arsene Wenger had received a 12 game touchline ban for violent and threatening behaviour against a fourth official in Sunderland in 2001, but on appeal the FA accepted that the contact was minimal, and the sentence reduced to a reprimand and a fine.

There are two issues raised by the judgment for future consideration. First, the FA is given extremely wide disciplinary powers under the FA Rules: the permitted penalties include a suspension from all or any specified football activity, or such further or other penalty as the Regulatory Commission considers appropriate. Stadium bans are particularly onerous, and there appears to have been no general reflection as to their legality. They cause serious difficulties for the club, who become rudderless on match day. Stadium bans effectively mean a manager is unable to carry on his trade on the most important day of his working week. Should he be dismissed by the club as a result of the severity of the punishment then presumably any stadium ban would travel with him. He would be unemployable: no club looking for a manager in adversity would be willing to hire him.

The second general issue raised is more practical than legal. Technical areas are perilously placed, sandwiching a manager between the other side and away fans in a highly charged situation. Richard Bevan, head of the League Manager’s Association, has been reported in the media as being in the process of evaluating the positioning, rules and dimensions of the technical area. The weekend before the reasons were published José Mourinho, Chelsea Manager, was banished to the stands during the match with Aston Villa after encroaching on the turf: a timely reminder that a rethink may be necessary.