John Terry Case: Questions Remain

The FA's decision to commence disciplinary proceedings against John Terry demonstrates, once again, the perennial battle between self-regulation and external regulation. Despite the national court's decision to clear Mr Terry from all charges, the sporting governing body declared its intention to commence separate disciplinary proceedings on the same matter. 

John Terry

It is not our intention to question the moral basis of The FA's decision to commence fresh proceedings against Mr Terry. Nor do we intend to criticise the re-examination of the evidence, which will now be considered under a different standard of proof. For the sports lawyer, the underlying element of this discussion solely relates to the ability of sporting governing bodies to regulate their own sport in an effective and appropriate way. Such regulation, we argue, must observe the precepts of fairness and justice and, above all, the law of the land. Although the 'sporting exception' is a recognised principle, it cannot be used as an excuse so sporting bodies can receive immunisation from judicial intervention. There have been several examples, both, from the national jurisprudence and that of CAS, to demonstrate that sporting bodies are always subject to relevant judicial checks.

John Terry and A. Ferdinand

Without a doubt, The FA has the power to commence separate proceedings against Mr Terry. This does not mean, however, that such power could be exercised at any given time, without prior consideration of the relevant checks. It is not our intention to examine whether the allegations are valid or not. It is our intention, rather, to examine the way in which a decision, to charge a professional athlete, has been made. Although it is correct to argue that judicial review may not be available against a decision taken by a private sporting governing body, such argument produces also exceptions that could determine the outcome of this matter. The courts in England have repeatedly ruled that sporting bodies' decisions may affect the rights and obligations of individuals and in such case, a 'horizontal effect' of the application of Article 6 of the European Convention on Human Rights could be established.

With this in mind, it will be interesting to see the analysis of The FA's opening statement in this matter. Taking issues of jurisdiction out of the equation, we must question the legal basis for introducing separate charges on the same matter. We must emphasise that this is not a question as to whether the charges could be proven under a different [possibly easier] standard of proof, in the governing body's disciplinary proceedings. This is a matter of establishing the legal basis of the action and ensuring that the procedural rights afforded to Mr Terry are not violated, possibly in the same way that those of Mr Ferdinand have, allegedly, been violated. 

John Terry

Finally, one would have to question the timing and the necessity of these fresh charges against Mr Terry. The obvious submission on this point would, of course, suggest and encourage the application of severe sanctions against those who bring the sport into disrepute, by ensuring that issues of  racism are eliminated and all individuals are protected from harm. Not a lot of people support racism in sport and the governing body's stance on this issue is well documented. Without examining issues of evidence and standards of proof, one would inquire as to whether Mr Terry has already received proportionate punishment. It could be argued that he has lost one of the most prestigious sporting advantages, namely, the captain's armband for the national team. He has had his name and reputation severely 'dented' [in the absence of proven allegations] and he is highly likely to suffer further financial consequences as a result of this legal matter. We are not here to pass judgement, particularly when the allegations are yet to be established. Proportionality, however, must always be present in every governing body's decision making.

We despise racism in sport and we are of the firm view that it should not be tolerated. In the same manner, we cannot tolerate the manipulation of the regulatory framework. A strong message must be send to the world that racism in sport goes against all principles of fairness and equality that underpin the very structure of the sporting arena. This message, however, must not violate procedural rights afforded to the defendant. This 'presumed guilty' stance in sport must be eliminated at all costs. Otherwise, the application of justice in sport could end up being as disgusting as the anathema it tries to regulate.

Dr. Gregory Ioannidis

28 July 2012