13 Dec 22
Fool proof: the lessons from FA v Louza for Sports Governing Bodies and sports law practitioners alike.
The recent decision of the Football Association’s Appeal Board in FA v Louza has confirmed that the civil standard of proof (i.e. on the balance of probabilities or put another way whether it was more likely than not that the offence occurred) is the correct standard in sports disciplinary decisions.
The Appeal Board found that the civil standard does not vary irrespective of the seriousness of the allegations thereby rejecting the proposition of the first instance panel that “the more serious the allegation, the more cogent evidence needed”.
The Appeal Board’s decision (and the decision at first instance) can be accessed here.
Imran Louza a Moroccan international footballer at Watford FC, was charged by The FA with misconduct under Rule E1.1 for allegedly spitting on Ryan Manning of Swansea City AFC during an EFL Championship fixture between the two clubs on 5 October 2022. Law 12 of the FIFA Laws of the Game provides that spitting at an opponent is a sending-off offence that carries a mandatory 6-match suspension.
Just before the alleged spitting incident, Louza received a yellow card for fouling Manning. Louza explained in his evidence that Manning was unhappy with the challenge, and he was convinced that Manning would try to exact some form of retribution or retaliation. Shortly after Louza was booked, Manning walked across Louza’s path unnecessarily and barged into him. The two men engaged briefly before Manning looked at his shirt and ran to the referee.
At first instance, The FA’s Independent Regulatory Commission relied on three separate video recordings, the referee’s report, a statement on the incident itself from Manning, evidence provided by the referee and the assistant referee to The FA after the match as well as submissions from the respective players. There were no witnesses to the incident.
First instance decision
The key issue to be determined by the Appeal Board was whether the Commission applied the correct test for the standard of proof of the balance of probabilities and for the quality of evidence necessary to establish breach on that standard.
At first instance, both The FA and Louza agreed that the correct standard of proof was the civil standard, namely the balance of probabilities.
Louza argued in his submissions to the Commission that there was insufficient evidence to support the charge and not the strong, clear or compelling evidence required to maintain a charge of this seriousness. It was, he argued, a case of Manning’s word against his.
The FA, by highlighting the proximity of the two players, Manning’s unimpeded view of Louza’s face, Manning’s immediate response to the incident, his running over to the Referee to report it and the referee noting that he had been made aware of the spit on Manning’s shirt, argued that the evidence before the Commission was sufficiently clear.
The Commission handed down its written decision on 26 October 2022. At paragraph 24, it stated that “there must be clear, cogent and convincing evidence presented before we could consider that The FA has proved the Charge. We note that the automatic sanction of a 6-match suspension for an offence of spitting means that this is a particularly serious allegation and thus the strength of the evidence to satisfy this Charge is at a much higher threshold.”
Ultimately, the Commission found the charge not proven on the basis that the evidence was “one person’s word against the other’s” and that the evidence was not “sufficiently compelling to drive [it] to the conclusion that The FA has discharged its burden of proving the case.”
Appeal Board Decision
The FA appealed the decision of the Commission to the Appeal Board on the ground that it had erred in law and misinterpreted or failed to comply with The FA Rules or regulations by applying an incorrect test for the standard of proof of the balance of probabilities and for the quality of evidence necessary to establish breach.
The FA argued in its submissions that the position taken by the Commission – that “the more serious the allegation, the more cogent evidence needed [to prove it]” is wrong in law and ought to be rejected. This error had “infected” the entire decision of the Commission and that, consequently, the appeal ought to be allowed and the case remitted to the Commission for a fresh decision. In essence, The FA submitted that there was only one standard of proof – namely, the balance of probabilities – and the issue was whether it was more likely than not that the spitting occurred.
Louza argued that The FA ought to have challenged the Commission on this point at first instance. The case of Singh v Dass  EWCA Civ 360 found that an appeal ought not be allowed on a point of law where the appellant had chosen not to take the point at first instance even though it was available to do so, if doing so at a later stage would prejudice the respondent. Here, Louza argued that he would be prejudiced for two reasons: (i) he would be unable to recover his costs incurred if the appeal succeeded and the case was remitted to the Commission; and (ii) the matter would linger over him for a further period, during which time he would have already served his 6-match suspension.
In addition, Louza argued that regardless of the standard of proof applied by the Commission, it ultimately found that the case was no more than one person’s word against another and that the appeal should accordingly be dismissed.
Findings of the Appeal Board
The Appeal Board found that allowing an appeal on a point which was before the Commission at first instance but not contested would prejudice Louza in terms of both cost and delay. For that reason alone, the Appeal Board held that the appeal ought to be dismissed.
Notwithstanding this, the Appeal Board provided the following helpful clarification on the standard of proof applicable in sports disciplinary proceedings:
- “The balance of probabilities is simply whether it is more likely than not that some fact in issue occurred. That civil standard does not vary irrespective of the seriousness of the allegations or the consequences of those allegations being accepted. Talk of a “heightened standard” is simply wrong: the standard neither gains height nor loses height” (paragraph 30);
- There is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not (paragraph 32.1);
- The proposition that “the more serious the allegation, the more cogent evidence needed” to prove it is wrong in law and must be rejected” (paragraph 32.2);
- There is no necessary connection between seriousness and inherent probability (paragraph 32.3);
The Appeal Board also held that it would have dismissed the appeal on its merits in any event. It found (at paragraphs 40 – 42) that the Commission correctly identified the applicable standard of proof and, despite some “infelicitous drafting” of the first instance decision, the Commission did not impose a different standard of proof or conduct an inappropriate application of that standard.
, the Appeal Board was content that the Commission’s findings of fact were not “infected” by any alleged misdirection on the standard of proof, as The FA argued. Rather, the Appeal Board agreed that the evidence before it (and the Commission) was nothing more than one person’s word against another’s.
This case provides important clarification of the correct standard of proof in sports disciplinary proceedings.
A disciplinary panel must undertake a careful analysis of the factual matrix to determine, on the balance of probabilities, whether it is more likely than not that the disputed fact in issue did indeed occur. It is incorrect to assume that if an allegation is serious, it must be inherently improbable and therefore requires more cogent evidence to rebut that improbability. After careful analysis of a case, it may well be that the opposite is correct.
The Appeal Board described the analysis as “an exercise in mind concentration in respect of the specific facts of the case and the central point which is whether or not there is an inherent improbability or probability that should be takin into account when weighing the totality of the evidence”. Though this advice was directed at the Commission, all civil practitioners would do well to heed it.
Onside Law is regularly instructed by International Federations, National Governing Bodies and participants in respect of sports disciplinary proceedings. Please contact a member of the firm’s Dispute Resolutions team to discuss how we can assist you with any disciplinary or regulatory matters.