Racism and Football

A number of high profile incidents over the past months have rekindled the explosive issue of racism in football. Nick De Marco discusses the potential legal ramifications.

From John Terry’s and Luis Suarez’s racial abuse of opposing players, to the responses of football clubs, players and fans to racist chanting by supporters, racism in football has dominated not only the back but the front pages. Football Authorities such as FIFA and the English FA have been criticised for being too slow to react, or too soft in their final reactions and football players have been forced to take action for themselves. Some black footballers in England boycotted the FA’s Kick Racism out of Football campaign and refused to shake hands with certain opponents in protest at the lack of action against racism, whilst AC Milan players in Italy collectively walked off the pitch, forcing a ‘friendly’ game to be disbanded, in protest at the racist chanting of a minority of supporters.

But what are the potential legal ramifications of this?

There is increased pressure on the football authorities to take a hard line against clubs and players guilty of racial abuse. Not only a ‘zero tolerance’ approach, but also consistency and transparency in disciplinary decisions is expected. Of course there were different considerations in each case, but it is difficult for many to understand why Suarez was banned for 8 games for racially abusing a player, whilst the former England captain was only banned for 4 games and was allowed to keep playing for England for much of the time before the allegations were determined. Or why Joey Barton was banned for 12 games for violent conduct in the same season, when the FA’s own rules purport to provide that racial abuse shall be penalised more seriously than violent conduct on the pitch. How is it consistent for the FA to suspend Mark Clattenberg from refereeing for the 4 games it took to investigate, and eventually dismiss as unfounded the allegations of a Chelsea player against him that he had used racially abusive language during a game, whilst Terry was not suspended for a single game during the much longer period it took to investigate the allegations against him which were found proven by the FA?

There are signs that the football authorities are finally waking up to the problem. UEFA have just announced they will be bringing in a 10-game ban for players who racially abuse and a two-strike system for clubs whose fans repeat racist abuse, forcing them to play behind closed doors. The English FA promises to publish its long awaited review of its procedures to deal with racism later this month.

But the inadequate and inconsistent responses of the footballing authorities to date, exemplified in the head of FIFA Seb Blatter’s pronouncements that black players who have suffered racial abuse should just shake hands with their abusers and get on with it, has meant some players and clubs have taken matters into their own hands.

West Ham United has announced a zero tolerance policy on racist and anti-Semitic chanting, leading to potential life time bans of guilty fans. It may not be long before a football club applies the same policy to its own often highly paid employees, dismissing for gross misconduct any player found guilty of racial abuse.

The AC Milan players who walked off the pitch set a new standard that many black footballers and anti-racists in England have been demanding. If a player is subjected to intolerable racial abuse from spectators he should have the right to withdraw from the pitch, and his team mates and employers have a duty to support him. If this occurred in an official game what would be the consequence? Would the football authorities punish a Club for abandoning a league game by awarding points to the opposing Club? Surely such a response by the authorities would be intolerable to the public and sports fans, not to mention potentially open to legal challenge. So football authorities need to develop and change their rules to deal with these potential situations.

Another possibility is that players could take legal action against other players or clubs responsible for racial abuse. As the Sheffield United v West Ham United FA Arbitration over the Tevez affair demonstrated, football rules operate as a binding contract between the various participants. If one player abuses another on racial grounds he may have breached that contract (ie the FA’s disciplinary rule prohibiting racial abuse), or the Club that employs him or is responsible for racial abuse of a spectator in its ground may be liable. There may be difficult questions as to what damages have been suffered, but the concept of ‘injury to feelings’ within discrimination and employment law is well established to deal with this (even if the limitations to compensation within that jurisdiction may need reviewing in the context of football).

The controversy around racism in football looks unlikely to go away quietly. Sports lawyers, football regulators and advisers to players and clubs alike should look creatively at how to respond to this vice.