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ASHLEY CUKIER ON TYRONE MINGS’S FA BAN

Mings, Zlatan and 'Violent Conduct' under the FA Rules: Five things you need to know by Ashley Cukier.

What has happened?
Following their Premier League encounter on Saturday, the Football Association (“FA”) Regulatory Commission charged Manchester United’s Zlatan Ibrahimovic and Bournemouth’s Tyrone Mings with “Violent Conduct” and suspended the pair. Ibrahimovic has been banned for three games for an elbow on Mings; whereas Mings has been banned for five games for stamping on Ibrahimovic. Ibrahimovic will not contest the charge and his suspension will begin immediately. Mings denied the charge; but the Commission rejected his submissions and imposed the five-game ban. Bournemouth yesterday released a statement expressing their “extreme disappointment” at the FA Regulatory Commission’s decision to ban their player.

Why is Mings’s suspension controversial?
In a statement released on Wednesday, the FA confirmed that the FA Regulatory Commission had banned Mings for five games – as opposed to the “standard” three-game punishment for “Violent Conduct” – because the standard punishment was, in the Commission’s eyes, “clearly insufficient”. The decision opens (or some would say re-opens) Pandora’s Box in respect of FA sanctions for violent conduct in circumstances where the Commission has imputed intention to a player, when the player himself has denied any deliberate or premeditated attempt to commit the act being punished. Bournemouth note in their statement that if Mings had intended to stamp on Ibrahimovic, it would stand at odds with an almost unblemished prior disciplinary record: Mings had never previously been shown a red card in 75 matches as a professional.

What do the Rules say?
FA Rule E3(1) provides that:

A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words and behaviour

Rule d(ii) of Schedule A of the FA’s Disciplinary Procedures provides the circumstances in which a standard punishment for “Incidents on the Field of Play […] which were not seen by the Match Officials, but caught on video” (including “violent conduct”) can be increased:

[…] the Regulatory Commission may only increase the applicable standard punishment where the FA has claimed in the Charge that the standard punishment would be clearly insufficient, having regard to the following:

a. The applicable Laws of the Game and any relevant FIFA instructions and/or guidelines;
b. The nature of the incident and the Player’s state of mind, in particular any intent, recklessness or negligence;
c. Where applicable, the level of force used;
d. Any injury to an opponent caused by the incident;
e. Any other impact on the game in which the incident occurred;
f.  The prevalence of the type of incident in question in football generally;
g.  The wider interests of football in applying consistent punishments for dismissal offences;

If the Regulatory Commission is so satisfied, the Player shall not be subject to the standard punishment applicable to the incident. The Commission shall determine what level of punishment shall apply instead, having regard to the factors at a-g above."

It would appear that the Regulatory Commission had regard to the above factors and determined that a three-match ban was in this instance “clearly insufficient”.

Can Mings Appeal?
Given that the Written Reasons for the Regulatory Commission’s decision on Mings have not yet been (and perhaps will not be) released, it would be injudicious to make any definitive statements as to the rationale behind its decision to impose a five-match ban.

However, on the basis that the suspension is comprised of the “standard” three-match ban for violent conduct and a further two-match ban under Rule d(ii) of Schedule A of the FA’s Disciplinary Procedures, Mings would not have an automatic Right of Appeal.

Rule (e) of Schedule A of the FA’s Disciplinary Procedures provides:

The Player will have a right of appeal only (i) in the event that the penalty imposed (in addition to the automatic suspension) is in excess of three matches; (ii) on the ground that the additional suspension is excessive; and (iii) […] not accounting for any additional matches […] as a result of the player having served a suspension earlier in the same season […]

No other appeal (for instance against the decision that the Charge was pursued) is allowed

The language of the rule confirms that each of the three criteria must be satisfied if the player is to be afforded a right of appeal. In Mings’s case, on the basis that the Regulatory Commission imposed an additional two-game ban, rule (e)(i) above would operate so as to preclude any further appeal, irrespective of Bournemouth’s (and the player’s) evident view that such additional suspension was excessive.

What happens next?
Ordinarily, Mings will now serve his five-match ban with immediate effect, missing important games against West Ham, Swansea, Southampton, Liverpool and Chelsea, as Bournemouth seek to avoid being dragged into the relegation dogfight.

It will, however, be fascinating to see – given the club’s evident fury at the suspension, and the serious implications of Mings’s absence from the team at a crucial point in the season – whether Bournemouth elect to pursue an application for Arbitration under the FA’s Rule K in a final attempt to overturn the suspension. Such an Arbitration would not be an ‘appeal’ but rather would exercise a supervisory function as to whether the FA’s decision and/or subsequent length of ban was ‘irrational’ and/or ‘procedurally unfair’ (the applicable grounds to bring a Rule K Arbitration in this context)
 
The legal implications of doing so – not least a potential argument as to whether imputation of intention and premeditation by the Regulatory Commission to Mings in this instance is indeed ‘irrational’ or ‘procedurally unfair’ – would in my view be fascinating for those involved in sports law (and might form the subject of a future article).

Ashley Cukier is a member of the Littleton Sports Law Group. Littleton has particular expertise in sports law and is ranked as a leading sports law set in the directories. For enquiries, contact one of the clerks on 0207 797 86900 or clerks@littletonchambers.co.uk.

Posted: 10.03.2017 at 09:44
Tags:  Comments  Sports Law
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