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Relating to the Fans

First written for and published by LawInSport. Click here to view the original article.

Andrew Clarke QC

Everyone remembers the Cantona kung fu kick. Last season we had a non-league footballer running into the stand, apparently intent upon battering a fan who was taunting him. No-one would seek to defend either player and each club’s ability to respond by taking disciplinary action was clear and obvious, given the nature of the players’ actions.

Other incidents in football raise more subtle problems. Nicholas Anelka defended the “quenelle” gesture he made towards the crowd apparently on the basis that it was not racist, but either an expression of support for his friend (a French comedian fond a making the inverted Nazi salute), or a more general anti-establishment statement. It would appear that, on any view, his actions had the potential to inflame elements in the crowd. Does it matter that prior to his act hardly anyone in England was aware of the antics of his friend, or the alleged significance of the gesture? Theo Walcott’s gestures (of the scoreline) to the crowd as he was carried off on a stretcher did not lead to any punishment from the FA, but should it (and could it) have led to some sanction from his club?

Walcott was responding to the chants of rival fans (and his facial expression certainly suggested that he did not intend to be antagonistic or provocative). Yet, is it ever appropriate to interact in that way with opposing fans and, if it is, where is the line to be drawn? It is not unusual for fans to make their views of opposing players known and this can be highly provocative, but some argue that football is too tolerant of player reactions. At times the FA has sought to outlaw excessive goal celebrations and FIFA’s Laws of the Game seek to prohibit “provocative, derisory, or inflammatory” celebrations. Yet, confrontational celebrations in front of rival fans are still seen with regularity. At times players appear deliberately to be challenging the boundaries of what they can get away with.

In other sports there seems to be less of a tradition of crowd confrontation. For example in the Tour de France crowds impeded riders on mountain stages and Mark Cavendish apparently had urine sprayed at him the day after a collision in a sprint finish. The riders choose to react verbally in interviews rather than in the heat of the moment. Of course, the circumstances are different, but perhaps so is the mindset? Riders generally leave angry fans behind on the road, but neither Rugby code has such problems, nor does cricket. There are hecklers in the crowd at such matches. Sometimes there has been racist chanting from small minorities, but it almost of unheard of for players to react in a way that incites the crowd and they certainly do not themselves perform to antagonise the fans.

For obvious reasons the police are reluctant to deploy the criminal law in response to all but the most extreme cases of player misbehaviour. This raises the questions of whether clubs and regulators ought to do more. That leads to an examination of the powers available to them. Again, it is easy to deal with the extreme cases: a football referee has the power to send off a player for using offensive, abusive or insulting language or gestures and the FA can charge a player with bringing the game into disrepute. Other sporting bodies have similar powers.

It has been argued that consequent upon the role of football within society clubs, particularly football clubs, should require a different, higher, standard of behaviour from their players and officials. If so, have they the right to take action? Should they modify player contracts and guidelines to ensure that they have?

The issue of whether or not it is necessary to re-define the boundary between the acceptable and the unacceptable is not a legal one. However, I venture few observations as a lawyer involved in disciplinary matters both inside and outside sport. The best participants in any sphere of activity act as role models for the up and coming next generations. That is equally true in sport and here there is the additional burden that what is seen to be acceptable behaviour for players is copied by their fans. No-one wants to remove the passion from sport, nor appropriate inter-action between fans and the players in front of them. Yet, with increased television coverage, ever more detailed replays (sometimes on screens in stadiums and in slow motion) there comes an increased responsibility on players to set a good example. Whether or not a moral justification is accepted, there is a need to project the commercial value of sponsorship and broadcasting rights.

Presuming that clubs think that it is necessary to make clear where the boundaries lie, what is required is a clear statement of what standard of behaviour is expected and what will not be tolerated. Contracts often contain generalised statements about what is unacceptable. Many sporting clubs supplement those by handbooks and guidance notes setting out examples of what is appropriate and what is not. Given the way certain players behave, some would appear to be in need of a re-write. On the other hand it may be that the written materials are fit for purpose, but their guidance is simply ignored. It is unfair to discipline someone today for what was tolerated yesterday, even if the offence is clearly set out in the contracts and handbooks. It is first of all necessary to make clear that yesterday’s tolerance no longer applies.

A similar comment can be made regarding the rules of governing bodies. The FA website has helpful guidance on (eg) mass confrontations and surrounding the referee. Yet, these things still happen with some regularity in televised matches. I have even seen such things in the lower leagues on my travels in support of Crewe Alex. It would be good to see clear guidance both given and applied. The existence of sensible, industry wide, practices is of great assistance to the individual employer.

I have often heard it said, by way of mitigation in the face of serious misconduct, that behaviour of a less serious kind is regularly tolerated and that this has led to the expectation that more serious behaviour would be tolerated as well. To avoid that it is only necessary to make clear the policy that will be applied in future.

Looking only at football, for the present, it is perhaps time for the FA and the clubs to take the lead in promoting a different approach to the inter-action of players with fans.

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