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Consider this scenario: a football club fields an ineligible1 or suspended player in a match. That club wins the match. The player’s ineligibility or suspension is then discovered and the offending club is subjected to a form of disciplinary process and is penalised.
The innocent, losing club has no points from a match in which the opposition fielded a player who should not have been on the pitch in the first place. Should the match be replayed?
This situation plays out virtually every season.2Ultimately, each case is fact-specific and the answer depends upon the particular competition rules applicable to the match played.
In practice this means that, while fielding an ineligible or suspended player in one competition may lead to a replay, in others it will not. This article will describe the approaches taken in FIFA, UEFA and The FA’s competitions, and then set out general guidance about when, and in what circumstances, a replay probably will and will not be ordered.
With only three minutes left to play in this season’s Champions’ League’s third qualifying round, second-leg match between Celtic and Legia Warsaw, Legia substituted Bartosz Berezynski onto the field with Legia ahead 2-0 on the night and 6-1 on aggregate. That is how the match finished.
It was then discovered that Berezynski, who was due to serve a three match European club football suspension carried over from the previous season (having been sent off for violent conduct in a Europa League game against Apallon), had not been registered for Legia’s two previous Champions’ League qualification matches against St. Patrick’s Athletic and the first-leg against Celtic. Since he had not been registered for those games, he had not been eligible to play in them. Accordingly, his suspension had not been served and despite missing those games in any event (the team believing – correctly – that they could not select him because of the ban), he remained suspended for the second-leg against Celtic.
The relevant FIFA and UEFA rules on the subject are clear. FIFA Disciplinary Code, 2011 Edition,3 article 55 provides:
“1. If a player takes part in an official match despite being ineligible, his team will be sanctioned by forfeiting the match (cf. art. 31) and paying a minimumfine of CHF 6,000.
2. If a player takes part in a friendly match despite being ineligible, his team will be sanctioned by forfeiting the match and paying a minimum fine of CHF 4,000.”
Article 31 provides:
“1. A team sanctioned with a forfeit is considered to have lost the match by 3-0.
2. If the goal difference at the end of the match is greater than three, the result on the pitch is upheld.”
The UEFA Disciplinary Regulations, Edition 2014,4 are similarly very clear about the consequences of playing a suspended player. Articles 21.2-4 provide (emphasis added):
2. A match is declared forfeit if a player who has been suspended following a disciplinary decision participates in the match.
3. A match may be declared forfeit if a player who is ineligible under the regulations of the completion concerned participated in the match, as long as the opposing team files a protest.
4. The consequences of a match being declared forfeit are as follows:
a) the team forfeiting the match is deemed to have lost 3-0 (5-0 in futsal competitions), unless the actual result is less favourable to the member association or club at fault, in which case the result stands;
b) if necessary, the UEFA administration amends the member association or club’s ranking in the relevant competition accordingly.
Given the same UEFA Regulations govern the Europa League, in effect it is a strict liability offence to have played a suspended player in a European club football competition; the match is automatically declared forfeit and it will be awarded 3-0 to the innocent club unless the score was more favourable to the innocent team, in which case the actual result stands.
In Legia’s case, despite “winning” 6-1 on aggregate, once the second leg was awarded 3-0 to Celtic, the final score-line was 4-4 on aggregate with Celtic progressing to the Champions’ League group-stage on away-goals.
This approach has been consistently applied by UEFA. For example, in August 2012 a UEFA Europa League third qualifying round first leg match was awarded 3-0 to ND Mura O5 when their opponents, FC Arsenal Kyiv, fielded a suspended player.
The clearest guidance on replays, then, is that a replay will not be awarded where sanctions are provided in crystal clarity in competition rules, those rules are mandatory and they do not provide a mechanism for a replay.
The more difficult question is ascertaining when a replay will be ordered in circumstances where competition rules permit the relevant disciplinary/arbitral body the discretion to make such an order.
The rules of The FA (below) illustrate this, and a good example to demonstrate how an arbitral body may exercise its discretion is the case of Forest Green Rovers Football Club v The Football Association.5 The case concerned a Conference league (the lowest of the five nationwide football divisions in England) game between Forest Green and Southport FC on 9 August 2014, in which Forest Green were found guilty by The Football Conference Panel of fielding an unregistered player – Luke Oliver. Forest Green won the match 1-0.
The applicable rule was Rule 6.9 of the FA Standardised Membership Rules 2014/20156 as applied to the Football Conference. It is couched in discretionary terms as far as replays are concerned (emphasis added):
“Any club found to have played an ineligible player in a match or matches shall have any points gained from that match or matches deducted from its record up to a maximum of 12 points and have levied upon it a fine. The Board may also order that such match or matches be replayed on such terms as are decided by the Board who may also levy penalty points against the club in default.”
It is noteworthy that Rule 6.9 makes no distinction in sanction between a player who is “ineligible” by want of registration and one who has been suspended (as provided in articles 21.2 and .3 of the UEFA Disciplinary Regulations, reproduced above).
The Panel deducted the three points from Forest Green and fined them £500, but refused to exercise its discretion to order that the match be replayed. Forest Green appealed that decision. On appeal, the Appeal Board did overturn the Panel’s decision – finding that its supporting reasons lacked substance and were unreliable7 – but then re-exercised its own discretion not to order a replay. In doing so, the Appeal Board also opted to give a statement of principle as to when a replay might be ordered:
“For the avoidance of doubt and to assist all parties, the occasions for which an order for replay would reasonably be ordered would be where the failure to do so would result in a sporting disadvantage to a team other than that of the offending Club or where the offending Club had acted on advice given to them by either the League, County FA or The FA. Naturally, all cases are determined on the merits of their individual facts”.8
“…the intention of the rule is not to allow a replay where the benefit to do so would be mainly for the offending Club or where the fault lay with the offending Club”.9
Forest Green then took the matter to a “Rule K” arbitration, but the arbitrator (Kate Gallefant QC) dismissed the club’s challenge, and in upholding the Appeal Boards decision, expressly adopted their statement of principle above in the award.10
The Forest Green arbitration gave substantial consideration to the concept of “sporting disadvantage”. Forest Green argued that there will always be a “sporting disadvantage” to the innocent team where the offending club won the match.11 At first sight, that is convincing. The losing team has lost three points and, by definition, has an impaired goal difference. There would be no unfairness to other clubs in a league (though this point obviously goes beyond sporting disadvantage to the innocent club) because the three original points would have been deducted. Forest Green further argued that, in a hypothetical situation where the original match result was a draw, there should be no replay because that would distort the number of points potentially available (four rather than three, as the original point for the draw would stand).12
These arguments on sporting disadvantage were rejected. The arbitrator took the view that the Forest Green’s position amounted to an obligation to order a replay every time an offending team had won the original match, which is not what was meant by the discretionary nature of Rule 6.9. It goes so far as to say that the logical conclusion of the club’s position must be that there should be a replay in every situation because an innocent team would always be in a position, if a replay were ordered, to extend its goal difference. In the author’s view, this appears a more apt criticism of placing the focus on “sporting disadvantage” than of the arguments advanced by Forest Green Rovers.
Unfortunately but understandably, panels are having difficulty in articulating exactly what a relevant sporting disadvantage might mean. In Forest Green, the arbitrator said this:
“What, then, is meant by “sporting disadvantage” in this context? …[T]here would need to be circumstances specific to the actual teams involved such as to give rise to a sporting disadvantage to the non-offending teams or other teams were no replay to be ordered. Whilst recognising that it may well not be easy to identify the impact that a particular player had on the game, in principle I would accept that this may be a relevant factor.”13
The arbitrator also took the view that the relative positions of the teams in the league might be relevant.
Forest Green was cited to the Ryman League Panel deciding on charges brought against Enfield Town14 that in January 2015 it had played an ineligible player – Aryan Tajbakhsh – in two matches. On the question of replay, the Panel’s reasons are short:
“If the matches were replayed, the non-offending Clubs involved could be disadvantaged, depending on the result of a replayed match and it could have harmful effects on the other Cubs in the Play-Off positions; the integrity of the League would be brought into question by their Member Clubs.”
The final point, then, brings into play matters considered in Forest Green about the integrity of the relevant league. The first point is interesting because, taken to its logical conclusion, there could never be a replay: in any replayed match there would always be a disadvantage depending on the result of the replayed match. That is so even in circumstances where an appeal body or tribunal operates its discretion to award penalty points because, as was recognised in Forest Green,15 there is no discretion to cap or modify goal difference.
Forest Green concerned a case in which the relevant bodies refused to exercise their discretion to order a reply. By contrast, on 6 December 2014, a sub-committee of the FA Challenge Cup Professional Game Board determined16 that a match between MK Dons and Chesterfield should be replayed. Though an unregistered player – Georg Margreitter – had been fielded, Chesterfield had sought permission of Wolverhampton Wanderers (the club from which the player had been loaned) for him to play. In line with the relevant competition rules, a copy of that permission was not received by the deadline. The club argued, therefore, that this was a technical breach.
The Rules of the FA Challenge Cup Competitionprovide that:17
“Subject to the below, where an ineligible player plays for a club in a Competition match, the Professional Game Board shall remove the club from the Competition, and may impose further penalties against the club.
However, where the club satisfies the Professional Game Board that the club (or any of its officers) did not know and could not reasonably have known, even had it made every reasonable enquiry (with the exercise of the utmost caution), that the player was ineligible, the club shall not be removed from the Competition but may still be subject to any other penalty (e.g. fine, ordered to replay the match).“
Accordingly, the Professional Game Board has power to show leniency where the club did not know and could not reasonably have known, even if it had made every reasonable enquiry (with the exercise of the utmost caution) that the player was ineligible.18
The sub-committee was persuaded that this was a technical breach and that its discretion as to leniency was activated. It exercised it. There was no deliberate intent to deceive and Chesterfield had acted with integrity.
A replay was ordered. The reasons for that were short: “the decision to order the tie to be replayed was deemed to be the fairest outcome in this unique situation in order to protect the integrity of the world’s oldest and most prestigious cup competition.”19 It is not clear to what extent the sub-committee relied upon Chesterfield’s blamelessness in coming to its decision on replay.
However, it is plainly of relevance that this decision was taken in the context of the FA Cup where points and goal differences are irrelevant, and in which it is par for the course that matches should be “replayed” (albeit, because the first match was drawn). The only prize from an FA cup tie is progression: in the FA cup context, then, it is relatively straightforward to see why the balance of sporting disadvantage for a non-offending party would lie on favour of a replay.
The Rule of the FA Challenge Cup provide sufficient flexibility for the Professional Game Board to balance sporting disadvantage through replays. The nature of that competition is such that the nature of any sporting disadvantage will be different to other, more “conventional” leagues. The rules use the expression “exercise of the utmost caution”20; while this is not repeated as such in arbitral or appeal decision, it mirrors the relevant standard.
In Thurrock Football Club v (1) the Isthmian Football League Limited and (2) the Football Association Limited,21 the offending club ran checks with the Essex FA, it being known that the relevant player had been playing for clubs in Essex for a number of years. The FA had standing instructions to County FAs to advise member clubs to check additional databases, but the Essex FA did not do so (or so it was averred by Thurrock FC). It transpired that the player had been registered for a club in West Yorkshire for a short period in 2011. In respect of that registration (and the subsequent closure of the club) the player owed the princely sum of £16.00. Having not paid it, he was suspended sine die (without plans for a review). There was evidence to suggest that he was unaware of the fact.
The arbitral tribunal expressed sympathy for Thurrock FC,22 but held that the club must shoulder some of the responsibility for playing the player. They did not know he was ineligible, but there were further checks they could have made. It was or should have been obvious that checking with the Essex FA would only reveal suspensions imposed in respect of Essex FA members.
From the preceding paragraphs, it is clear that the specific rules of the competition will be important in determining a football club’s right to a replay.
At UEFA and FIFA level, the sanctions for fielding ineligible players (through suspension or for want of registration) are clear: a replay will not be awarded as the sanctions are provided in crystal clarity in their competition rules, and those rules are mandatory and they do not provide a mechanism for a replay.
The difficulty arises in competitions where the sporting authorities and appeal bodies have discretion, but where the circumstances in which that discretion will be exercised are not entirely clear, like those convened under Rule 6.9 of the FA Rules.
Forest Green is useful to the extent that:
As to the question of sporting disadvantage, we are still somewhat in the wilderness. It is clear from Forest Green that every case will be highly fact sensitive and that replays will be the exception, not the rule. However, two considerations identified as potentially relevant in this context are player involvement and the relative positions of the clubs.