Why the FA banned Anelka for 5 games

The FA has just published the written reasons of the Regulatory Commission chaired by Christopher Quinlan QC considering the disciplinary proceedings against the Player Nicolas Anelka for making the alleged anti-Semitic “quenelle” salute during a Premier League game. The Commission decided to ban Anelka for 5 matches, fine him and order him to attend a compulsory education course. The full decision can be found here: www.thefa.com/~/media/files/pdf/nicolas-anelka-written-reasons-060314.ashx

The case is the first high profile case to consider the new tough anti-discrimination penalties brought in by the FA in the wake of the Suaraz and Terry cases, and continuing concerns about racism in football. Under the new FA Rule E3(2), an offence of improper conduct under E3(1) is aggravated “where it includes a reference to … ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability”. The minimum sanction for a breach of the Rule (where it is a first offence) is a 5-match ban (2 more than the minimum for violent misconduct dismissal following a red card), but this can be increased where there are additional aggravating factors.

The Commission found that the “quenelle” salute was strongly associated with the comedian Dieudonné, and that Dieudonné in turn was strongly associated with anti-Semitism such that the salute was strongly associated with anti-Semitism. That association could not be divorced from the gesture.

The test for aggravated breach under Rule E3(2) was an objective test (as in Suarez). It did not matter whether the person charged intentionally meant to discriminate. If objectively there was abusive, indecent, insulting or improper words or behaviour, and these were made with reference to a protected characteristic, then the charge was proven.

The quenelle salute, which was made deliberately by Anelka, contains a reference to anti-Semitism. The Commission found it was not necessary to consider whether Anelka is or was an anti-Semite or whether he intended to express or promote anti-Semitism by his use of the salute, although on the evidence before them, they were not satisfied that he was an anti-Semite or that he intended to express or promote anti-Semitism.

It followed that Anelka had to be banned for at least 5 games. The FA argued there were further additional aggravating features which suggested a longer ban should be applied: (i) Anelka is a high profile player, (ii) the FA is heavily involved in the promotion of inclusivity, equality and diversity, and in combating racism in football and society and his conduct undermines those programmes and (iii) the conduct brought a negative focus on the image of English football around the world and may therefore have damaged its reputation.

On Anelka’s behalf it was submitted that the case was much less serious than the case in Suarez  and Anelka had a clean record.

The Commission considered the FA’s decisions in the Suarez and Terry cases, although neither were binding and both were made before the new Rule with its minimum 5 match ban.  In Suarez, an 8 match ban was imposed for conduct with five identified aggravating factors including the repeated use of the word “negro” or “negros” made on a number of occasions in one game. The Commission felt that was clearly a more serious example of an aggravated breach than Anelka’s conduct. In Terry, the player had been subject to a 4-match ban for insulting an opponent by calling him a “fucking black cunt” on one occasion (today he would, of course, be banned for at least 5 games).

In all the circumstances, the Commission found the minimum 5 match ban was sufficient.

The fact the Commission considered and took into account previous (non-binding) decisions is particularly interesting. Whilst these previous cases were made under more lenient rules (and therefore cannot be taken as a prescriptive), it seems obvious that in determining the proportionality of a sanction it ought to be necessary to consider how more or less serious breaches have been sanctioned in the past. In the FA v Joey Barton case the Commission failed to do this – having listened to submissions that the offence in Suarez (8 counts of racially aggravated abuse in one game) must surely be more serious than 3 counts of violent misconduct in one game, the Panel (which lacked a legal Chairman) imposed a 12 match ban. Such wild inconsistency undermines the credibility of the FA.  For that reason, whilst some in the FA may have preferred there to have been a longer ban against Anelka, the decision is to be welcomed for its detailed reasoning and for the Commission’s care to impose a proportionate sanction.

Pushpinder Saini QC and Tom Mountford acted for Anelka in the case. Paul Goulding QC was the Chairman of the previous Commission in Suarez. Nick De Marco acted for Barton in the FA v Joey Barton decision and is a Judicial Chairman of the County FA’s Anti-Discrimination Panels, set up to determine offences under FA Rule E3(2).