1. What the magistrate actually said to Terry
John Terry was acquitted of the criminal charges because the magistrate hearing the case could not be absolutely clear (as the law required him to be) that he’d used the words ‘you f***ing black c***’ as an insult. It appears the magistrate didn’t actually believe Terry’s explanation that the words had been said in a non-insulting manner. He is quoted as saying: “Mr Terry’s explanation is, certainly under the cold light of forensic examination, unlikely”. But because of the criminal burden of proof, he could not convict.
2. The FA is not considering imposing a criminal penalty
When enforcing society’s rules and deciding whether someone should be punished as a criminal, the law requires the evidence to be 100% (or at least 99%+) clear; ‘beyond reasonable doubt’. When enforcing an organisation’s rules or deciding a dispute between individuals, the law requires a court or tribunal only to decide which version of events it believes, whose evidence it thinks is more likely to be true. This is referred to as ‘the balance of probability’ or 50%+. The FA would be looking to see if its own rules have been breached and to protect the competing interests of the people involved in football. It would need to decide what it believes actually happened ‘on the balance of probability’.
3. Shouldn’t those words be inappropriate in any context?
What message is currently being sent out to ‘football’? Terry has admitted using the words and is being reported for example in last night’s excellent BBC3 documentary as being ‘acquitted on all charges’. There are a number of obvious constituencies to consider: black players in the game, players of all backgrounds from Hackney Marshes up, fans in stadiums and on touch lines and children coming into the game to name a few. Terry is one of the highest profile people in the English game. Are we allowing everyone to use phrases like this and to argue that in a particular context they are acceptable? Much has been done to rid football in this country of overt racism. This feels like a seminal moment.
4. Respected campaigners are calling for the FA to act
When Herman Ousely and Garth Crooks (among others) are reported to be asking the FA to take action, this should have weight.
5. Employment law orthodoxy requires the FA to act
Last year the FA commenced an enquiry into the events at Loftus Road. It was suspended once it became clear that a criminal investigation was ongoing. At its simplest, criminal investigations ‘trump’ civil investigations. It is impossible properly to investigate matters once witnesses are also involved in criminal proceedings. The FA took the orthodox step of suspending its own investigations pending the criminal process. Orthodoxy would normally require the employee(s) involved to be suspended pending the outcome of the criminal proceedings. However, the FA chose only to remove Terry from the England captaincy. He was allowed to play for the team.
Terry and his advisers will be entirely aware that the FA now needs to return to its process.
6. The FA’s recent actions require them to act
The FA rightly received many plaudits for the way it dealt with the case of Luis Suarez at Christmas. There were many parallels: Suarez was a high profile player playing in a high profile, televised game. There was an altercation between players. Patrice Evra admitted to insulting Suarez with a jibe of a sexual nature about his family. Suarez admitted to using the term ‘black’ but argued he had not done so in an offensive manner. The tribunal considering the matter could not be absolutely clear of the exact sequence of events (despite testimony of a number of players and experts and video from numerous different angles).
In Suarez’ case the FA, stating explicitly that they were prompted by the industry’s poor reputation for dealing with allegations of racism, took swift and decisive action. Importantly, of course, it was operating on the civil standard of proof (50%+). The FA panel decided on the balance of probability what it believed Suarez had probably said. And it banned him for 8 games on that basis.
For me a critical paragraph in its careful judgement (that I regularly refer to when discussing workplace racism) deserves repeating.
“344. We took into account that it is a real albeit unattractive trait of human nature that we all act from time to time… in ways which may be out of character. This is especially so when we feel under pressure or challenged, or provoked, or pushed into a corner. We do and say things that we are not proud of and regret, and that we might even try and deny, sometimes even to ourselves. We occasionally do or say things that we would be embarrassed to admit to our family and friends. It is not inconsistent to have black colleagues and friends and relatives and yet to say things to strangers or acquaintances that we would not say directly to those closer to us.”
In terms the FA told Suarez that they did not think he was a racist, but they believed he had used words that were unacceptable. Should the same message not be given to Terry?
7. The FA wouldn’t want to be accused of bias!
Given the similarities between the cases, it would be difficult to imagine how the FA would explain a failure to act in the case of the (white) captain of England, having banned the Uruguayan for 8 games.