When Football 'Bites' the Criminal Law & the Descendants of Hannibal Lecter

It is not my intention to spend too much time discussing the individuals involved, in the incident that marked the game between Liverpool and Chelsea on Sunday 21 April 2013. The most important aspect of this discussion relates to the appropriate regulation of 'on the field violence' incidents. Such was the indignation caused with the incident in question, that the old perennial discussion of the differences between self-regulation and state regulation becomes pertinent.

This was not the first time that spectators at a football ground [and all over the world via their television sets] witnessed on-the-field violence. It is also questionable whether this incident will be the last. The perceived autonomy of football bodies, in relation to the regulation of their sport, raises concerns as to the efficacy of such regulation. For the sports lawyer, the most interesting aspect of this test-case is the 'separating' line that characterises the differences between self-regulation and state regulation.

The high profile consequences of the Suarez incident, may persuade the authorities that the criminality of the act cannot be ignored, nor should be dealt with, exclusively, by the disciplinary bodies in place. This may just be the kind of incident that would allow the criminal law to cross over the touch-line and enter the field of play. As it has been argued in the past, "the formal threshold at which the criminal law intervenes is when the conduct in question has a sufficiently deleterious social impact to justify the state, rather than any individual affected, taking on the mantle of the injured party."[1] Not many people could doubt or question the element of assault caused by the Liverpool player. The question is whether the prosecuting authorities would deem such assault serious enough to warrant prosecution. The seriousness of the assault, however, cannot stop at the actual physicality of the act. Consideration must be given also to the wider implications for the sport and the young people who play the sport.

It is arguable that the primary consideration for the Crown Prosecution Service would be whether the Suarez incident is totally unconnected with the playing culture of the game or carries too great a risk of injury that its commission cannot be in the public interest. Although football players consent to certain incidents of foul play, during the game, one cannot dismiss the possibility that certain incidents that are outside the 'sporting culture' of the game, could also be consented to. This was the conclusion of the Court of Appeal in the case of R v Barnes [2004] EWCA Crim 3246. 

As Lord Woolf CJ argued at paragraph 15 of the judgement: “In making a judgment as to whether conduct is criminal or not, it has to be borne in mind that, in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment, and even if the conduct justifies not only being penalised but also a warning or even a sending off, it still may not reach the threshold level required for it to be criminal.” It follows, therefore, that conduct outside of the rules of the game could, in certain circumstances, be consented to.

In considering whether this kind of on-the-field violence is also injurious to society, one would have to determine, at the same time, the efficacy of self-regulation. The appropriate sporting governing body may apply a lengthy ban against Suarez. Liverpool FC have already fined the player. But the prohibition on the footballer's trade and its monetary repercussions could probably not preclude the long-term injurious consequences for the sport and those who follow it. The application of R v Barnes may well determine the threshold of criminal liability, but football fans would be hard pressed to accept that such threshold is so high, that the victim in this case consented to this kind of assault and the application of criminal law, therefore, cannot be justified. 

Suarez may escape criminal liability. The marks left on the victim's skin, may also, one day, disappear. The damage done to the sport, however, by a player who has consistently allowed himself to be the centre of on-the-field controversies, may remain for a considerable period of time. Eventually, Liverpool FC and the football authorities may have to decide whether the sporting ability of the individual concerned, could outweigh the wider interests of the public. One could not but think that the vulgarity of the act resembles, to a certain extent, that of cannibalism, or in the best possible scenario, does not conform to the precepts of normal and accepted behaviour.

This is an important case for those who regulate football and the repercussions of this incident must not be dismissed at face value. The regulators must not forget that football is also an important medium for education and there is here a valuable lesson to be learned. Let us hope that those who are prepared to 'teach' such lesson, have understood the significance and importance of the game of football to modern society.

Dr. Gregory Ioannidis

22 April 2013

[1] Criminal Law, Theory and Doctrine”, William Wilson, 2^nd edition, Longman.