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Joseph Bryan on Joey Barton v The FA: 5 things you need to know

Joseph Bryan analyses the decision of an FA Appeal Board.

(1) Background

Joey Barton, the controversial Burnley FC midfielder (and sometime BBC Question Time panellist), was in December 2016 charged by the FA with a breach of rule E8: betting. It was said that he had placed 1,260 bets on professional football matches over a ten-year period. He pleaded guilty to the alleged misconduct. An FA regulatory commission (the “Commission”) was convened to hear submissions and decide on sanction. Its decision, made on 26 April 2017, was to suspend Barton from all football-related activities for 18 months with immediate effect.

Barton appealed and the Appeal Board’s (the “Board’s”) ruling was made on 25 July 2017. Its decision was to reduce Barton’s suspension to approximately 13 months.

(2) The FA’s sanction regime

The latest guidelines on sanctions for betting offences were promulgated by the FA in 2014. The purpose of those guidelines is to foster consistency in sentencing. As the Board found, they are intended “to reduce the need or appropriateness of having to trawl through many previous cases to discern some point or other which might distinguish or resemble to present case”.

In short, the 2014 guidelines provide that the starting point in deciding the appropriate sanction depends on the circumstances of the bet. The Commission should ask whether the bet was placed on:

• the player’s competition but not involving his club;
• the player’s own team to win;
• the player’s own team to lose;
• particular occurrence(s) not involving the player who bet; or
• particular occurrence(s) involving the player who bet.

Aggravating and mitigating factors include the overall perception of the impact of the bet on the fixture’s integrity; whether the player played or not; the number and size of bets; the player’s personal circumstances; and his or her experience and previous record.

It was common ground between Barton and the FA that the guidelines do not prescribe a minimum sanction or set out an exhaustive list of factors. Each case will depend on its own facts.

(3) The issues on appeal

Barton contended on appeal that the 18-month suspension was excessive. Two principal grounds were advanced on his behalf:

• first, that the period of suspension was well in excess of the other cases that had been referred to; and
• second, that the Commission failed to give reasons for rejecting an important piece of the evidence of an expert consultant psychiatrist, Dr Hopley, and its rejection was so unreasonable that no Commission properly directing itself could have come to that conclusion.

There was no dispute that Barton had a gambling addiction. Dr Hopley had, however, testified that the fact that Barton gambled within his financial means and stopped gambling “overnight” on being charged by the FA did not mean he had greater control over his addiction than might otherwise be the case. The Commission did not find this important evidence persuasive.

The FA replied (in short) that the previous cases were too varied to be of any meaningful use; and that the Commission was entitled to find Dr Hopley’s evidence less than convincing. What was important was that Barton retained a degree of choice in what he did.

(4) The Board’s reasoning

The Board did not accept that the previous cases showed that the sanction was excessive and restated the longstanding position that Commission decisions on sanction are non-binding. It was wholly correct, therefore, for the Commission to consider all the circumstances, factoring in the aggravating and mitigating features.

However, the Board could see no reason why the Commission had found Dr Hopley’s evidence on Barton’s degree of control unpersuasive. “It was a crucial part of Mr Barton’s case as it would be for any case.” Because it was not about the money, Barton could place a limit but that did not diminish the severity of his addiction, in the expert’s view. If the Commission had not unreasonably rejected that evidence, the final sanction would have been significantly reduced: so the Board reduced the suspension accordingly.

(5) Comment

The Board’s decision to allow the appeal on the narrow ground described above does not distract from the severity of the sanction ultimately imposed on Barton. (Indeed, if the Commission had provided clear reasons for rejecting Dr Hopley’s evidence, the appeal outcome might well have been different.) A long suspension for a serious breach of betting rules is not surprising in the current regulatory climate. Barton’s ban comes during a period in which the FA is taking an ever firmer stance on gambling in football. For example, following a three-month review, the FA has recently decided to terminate its own sponsorship deals with betting companies.

The Barton case is a timely – and high-profile – warning to all participants in football of the potential consequences of a breach of the FA’s misconduct rules. And, while the appeal has laid down no new principle, it serves as a helpful recap for practitioners of the applicable guidelines and as a reminder that the sanction in each such case will turn on the facts.