Flaws and Consequences: The Curious Case of Luis Suarez

By Stuart Gilhooly, the solicitor for the Professional Footballers Association of Ireland who was also recently named Journalist of the Year at the Irish Magazine Awards.

It seems as though Liverpool and Luis Suarez have finally closed the door on an unsavoury episode in their history and that of the English FA. Not without slamming it shut, mind, and taking the hinges as they went. With great reluctance, and no little chutzpah, both parties have conceded defeat but heavily indicated that they feel a huge injustice has been done.

While this case isn’t quite the Birmingham Six or the Guildford Four and it’s unlikely Daniel Day Lewis will be claiming he is an innocent man in Rioplatense Spanish anytime soon, there are flaws in the decision which would rendered them a reasonable chance of success on appeal. Although it’s no longer of huge significance, this is a saga which is likely to rumble on and I thought it might be useful to examine the areas where the FA regulatory commission has erred so at least we have a flavour of from where Liverpool and Suarez’s grievances emanate.

Since New Year’s Eve, when a 115 page tome landed in our inboxes, many opinions have been expressed as to whether the FA Regulatory Commission has got it right or wrong. Most have jumped to the conclusion that since the report is well written, very long, detailed and presented in nicely worded legalese, that it must be correct.

The truth, like with many tribunal decisions and, indeed most likely the case itself, lies somewhere in-between. There is much to be admired in the manner in which the commission dissected very complex linguistic issues as well as the nuances of what was said and not said. They have reported the facts in great detail and the result is that many of us are in a position to draw our conclusions.

That said, the report’s findings are somewhat flawed and, in particular, the sanction meted out is completely out of line with the evidence and even the commission’s own conclusions.

I should say, at this point, I am a Liverpool fan but also the solicitor for the PFAI, the League of Ireland’s players’ union. Although my allegiances are naturally with Luis Suarez, I’d like to think that I would take a similar view if a League of Ireland player asked me to represent them in similar circumstances. Indeed, I have defended an Irish player, Jason McGuinness, where allegations of insulting behaviour with racial overtones were made. He received a five match ban.

The Suarez case is unique in its complexity but in the end it comes down to some fairly basic questions.

1. What is the burden of proof?

2. Did Suarez use the word “negro” and, if so, how often?

3. If he did use this word, what should the punishment be?

The first question has been the subject of much debate and many commentators seem to believe that the “balance of probabilities” burden is too low. The implication is that the criminal standard of “beyond reasonable doubt” should apply.

I don’t believe this is correct and instead a hybrid that is often used in tribunals where professional conduct is the subject of review is more appropriate. It is usually expressed as “highly probable” and it appears that the commission have rather clumsily agreed to this level by stating that this was a serious allegation and the more serious the charge, the greater the burden. It is a great pity that they didn’t express this in clearer terms but I think it is fair to say that the test of high probability is what was applied and if so, I believe this was correct.

However, it’s one thing to select the right burden of proof and it’s quite another to apply it. This is where the commission made its first mistake. It’s patently clear, and admitted by Suarez, that the word “negro” was used at least once. Whether it was used again is a matter of great debate and certainly could not be described as highly probable.

Quite simply, the only evidence that there was more than one use of the word comes from Evra himself and without independent corroboration, in addition to the inevitable linguistic confusion which is central to the whole case, it simply cannot even be described as probable, much less highly probable.

While the commission quite rightly point out inaccuracies in Suarez’s evidence, they do not justify their quantum leap from this to believing everything Evra says without a scintilla of independent evidence.

Now, this is not to say Suarez is innocent. He’s not, he deserves a ban for the inappropriate use of the word “negro” that he has admitted but this needs to be proportionate to what can be legitimately proven and not the educated conjecture of the commission.

The range of sanctions available is effectively from two matches upwards. It is clear that he is in breach of regulations and must serve at least a two match ban. Since there is a racial element, the entry point of four matches seems apposite. However, the commission have erred by increasing it largely due to the extremely dubious finding that he said the offending word seven times.

However, even if you accept that reasoning, it is very difficult to understand how considering the guidelines recommend a doubling of the sanction for a first offence and trebling for second. The effective quadrupling of the two match standard ban suggests that the Suarez findings were even worse than a standard second offence. This makes no sense whatsoever unless you reach the obvious conclusion that the commission were seeking to make an example of Suarez rather than employing the usual rules of natural justice.

An interesting example of how the commission glossed over certain inconsistencies while focussing on others is the manner in which it examines the motive for Suarez saying what Evra alleges he said. While agreeing that his upbringing, parentage and friends would militate against such behaviour, they can find no reason why he would engage in such behaviour and instead simply dismiss it as being out of character with no reason provided as to why he should suddenly remove himself from his normal characteristics.

This decision was driven by desire to believe either one party or the other, in the entirety. This was the fatal mistake that the commission made because there was no need. It is perfectly feasible for any tribunal to decide that part of the charge was proven and the balance was not. And quite simply, this is what they should have done

So what could Suarez have done had he decided to take his medicine? In my humble opinion, Suarez should have appealed. He should have admitted, on the one occasion which he accepts using the word, that he was wrong to do so. He could have argued that he did not use it on other occasions and such instances remain unproven in accordance with the burden of proof, but that he regretted the use of the word at all. He could have apologized for this and agree to assist the anti-racism campaigns. He could then have legitimately argued that the ban is excessive and should be reduced to the entry point of four matches.

In my opinion, if he had adopted such an approach, he would have succeeded in reducing the ban, maybe not to four matches but certainly to no more than six.

However, as we now know, he chose the worst of both worlds. He chose take the ban on the chin and still proclaim his innocence. He might well argue that he can’t expect justice from a body he considered biased from the outset but it’s difficult to expect public sympathy when you don’t exhaust all of the procedures. In a nutshell, football considerations intervened and, with Suarez unwilling to show any contrition, Liverpool no doubt felt the chances of reducing the ban were slim. As an apology of some description would be necessary to maintain any chance of leniency, this is probably the right call.

Of course, we will, most likely, never know what went on behind the scenes in this fiasco but it appears as though Liverpool and Suarez are the losers. It didn’t have to be that way.