Punishing clubs for pitch invasions - Reading wins FA appeal

Walk into the boardroom of many a football club and you are likely to pass a proudly displayed framed photograph reflecting one of the club’s finest moments, a promotion or getting through to a cup final, with players and fans celebrating the special day on the pitch. But a pitch incursion, even a celebratory one, is a breach of FA Rule E.20 and when Reading FC’s fans went on the pitch after their team beat Bradford City to get through to an FA Cup semi-final for the first time in 88 years an FA Regulatory Commission fined the club £100,000. The FA Appeal Board overturned that decision and reduced the fine to £40,000. Their reasons, just published, should make interesting reading for other clubs: decision-of-the-football-association-appeal-board-hearing-reading-football-club.

At the initial hearing before the Regulatory Commission, Reading produced evidence showing that there were more than 20 pitch incursions taking place at the end of last season across the Premier League and top two leagues of the Football League. The FA only took action against a small handful of other clubs (Aston Villa, who had a series of incursions that were aggravated, and who were fined £200,000; Blackpool, who had a pitch incursion that led to the match being abandoned and were fined £50,000; and Preston, who have yet to have a hearing). The inconsistency in both the FA’s charging policy and the sanctions Regulatory Commissions impose is troubling for those concerned about consistency and proportionality in regulatory decision making.

Whilst an article could be written just about the difficult nature of the charge itself – FA Rule E.20 imposes strict liability on clubs for pitch incursions that can only be rebutted by the club proving it exercised “due diligence” and different Regulatory Commission’s appear to have taken a different approach to what that means – this article focuses on the issue of sanction.

The pitch incursion following Reading’s game on 16 March 2015 was at the lower end of the scale of seriousness. Nobody was threatened or injured, it was a celebratory incursion that took place after the final whistle and took only a few minutes to clear. The Club had engaged additional stewards to try and prevent it and used the PA system to warn fans that the players would not come back on the pitch and do a lap of honour if there was any incursion (and they did not). The FA’s lawyers accepted that the pitch incursion was less serious than many others considered. Yet the Regulatory Commission hearing the case at first instance went on to impose a fine of £100,000 – a record fine for such an offence against a club not in the Premier League.

Reading appealed against the sanction claiming it was excessive and disproportionate. The Club argued that the sanction was excessive compared with other sanctions for the same offence, and with The FA’s own Guidance for sanctions for other breaches of Rule E.20 (failing to control players etc.).

In a previous decision of the Regulatory Commission involving Aston Villa ( the-fa-v-aston-villa-fc-2015-crowd) , the Regulatory Commission found [at para 11] that:

Reading argued that the Guidance was a useful starting point. Not only did it provide that the maximum fine for other breaches of Rule E.20 by a premier league club was £250,000, it specifically recognised the difference in means between clubs in each league, providing the maximum for a club playing in the Championship be £50,000, League 1 £25,000 and so on. Given the low level of seriousness of the incursion at Reading, the Club argued it should be at the lower end of a range beginning at zero and where £50,000 was for the most serious breach. Such a sanction would also be consistent with other recent decisions whereby Aston Villa, a premier league club, was fined £200,000 for what was described as an aggravated breach, and Blackpool whereby a championship club was fined £50,000 for a breach considered particularly serious as it led to the game being abandoned in the 48^th minute.

The Regulatory Commission decided that were they not bound by the Guidance (which is of course true) but also that they need not regard it all. Their fine of £100,000 appeared to the Club to have little regard to the fines in other cases too.

In allowing Reading’s appeal, The FA The Appeal Board have helped to restore some consistency in sanctioning, despite the fact some would argue the fine of £40,000 was still too high.

The Appeal Board agreed with the Regulatory Commission’s finding that the Guidance was not binding (paras 6-8) and indeed there may be circumstances in which a higher maximum should be applied anyway. But, importantly, they found (at para 9) that the Guidance was relevant in that it was a:

The Appeal Board went on to say they had difficulty seeing this principle was applied by the Regulatory Commission when it imposed a fine of £100,000 for a championship club, which would have been equivalent to £500,000 for a club in the premier league. Whilst the Appeal Board found there was no established range of penalties, and, interestingly, whilst it was not a very serious incursion and the club’s culpability was not high, it also found that all mass incursions, even friendly ones, were potentially dangerous justifying a deterrent element in any sanction, they went on to substitute the fine imposed to one of £40,000.

Towards consistency in sanctions

A range of appropriate sanctions for pitch incursions is arguably emerging. The decision in Reading is compatible both with the non-binding, but relevant Guidance and with the other two decisions in the last year (Aston Villa and Blackpool). It should at least establish the precedent that unless there are exceptional circumstances, such as significant aggravation of the breach, it will be rare for a sanction to be outside a rage of up to £250,000 for a premier league club or £50,000 for a championship club.

This is helpful for football clubs and football generally. Consistency and proportionality of sporting sanctions is particularly important when, to use an old but apt cliché, the role of the Regulator in this regard is at least in part to ensure a level playing field between competitors. It undermines the integrity of The FA for fines to be wildly inconsistent, or to be seen to depend only on the make up of the particular panel that happens to hear the charge. In the author’s view it would be helpful if, in pursuance of this aim, The FA amended its guidance to make it applicable to pitch incursions so that in future Regulatory Commissions would know the appropriate range for a sanction for these types of breaches, even if it will always be the case that where particular circumstances require it may be necessary to depart from such a range.

Nick De Marco acted for Reading FC before the Regulatory Commission and the Appeal Board.