Last
year, following the disposition of criminal charges against former Leeds United
players Lee Bowyer and Jonathan Woodgate, we addressed
what the F.A. should do when criminal charges are pending against
footballers, when footballers are acquitted of criminal charges and when
footballers are convicted of criminal charges. We did not address the
question the Alan Smith case presents: what should be done when footballers are
under criminal investigation but no criminal charges have yet been brought.
We
did not do so because the Bowyer/Woodgate case did not present that question,
but also because it never dawned on us that the F.A. would impose a ban on a
player for alleged criminal conduct even before criminal charges are brought. We thought our view that
the F.A. would never go that far was confirmed when Manchester United's Nicky
Butt was allowed to play for England earlier this year although he was under investigation
for criminal assault. Charges were never brought against Butt, and the
matter was forgotten until Smith was banned because
criminal assault charges might be brought against him for tossing a plastic
bottle back into the crowd.
In the meantime, however, the
F.A. banned Ferdinand in the absence of a formal F.A. charge because he was under
F.A. investigation for failing to take a drug test. The writing was on the
wall, and in the wake of Smith's ban, the F.A. claims the pending criminal
investigation against Butt had escaped its notice when he was allowed to take
his place in an England squad.
We
think the F.A. has no business banning players before criminal charges are
brought unless it conducts its own investigation and satisfies itself there is
probable cause to believe the player is guilty and unless it affords the player
the opportunity to clear his name at a hearing.
A
formal criminal charge carries built-in credibility because it represents the
judgment of duly appointed law enforcement officials that there is probable
cause to believe the accused is guilty of the charge. A complaint about a
player's conduct which has not yet resulted in a formal criminal charge carries
no such credibility.
Moreover,
complaints from the public against footballers which are under law enforcement
investigation are peculiarly likely to be unfounded. First, footballers,
because of their fame, are peculiarly likely to be subjected to false
accusation. Second, because of the media attention footballers attract in
every part of their lives, the police are much more likely to protect their own
reputation by opening a criminal investigation against footballers in
circumstances which would prompt no police action at all were the accused not
cursed with fame. Such may be the case with Alan Smith, whose conduct was
a minor affront at worst and hardly the stuff of which criminal prosecutions are made.
Hence
the F.A. should not impose a ban automatically whenever a criminal
investigation is opened against a footballer. If the offence under
investigation is serious--involving, for example, violence resulting in
injury--the F.A. may feel it has to act prior to a formal criminal
charge. In that case, it should conduct its own investigation, and if it
is satisfied there is probable cause to believe the player is guilty of
such a serious offence, it should order the player to show cause at a hearing
why he should not be banned. That course both protects football's
integrity and reputation and affords fairness to the player involved. It
is, in fact, the same course we believe should be
followed when formal charges are brought against footballers.
We
wonder what the F.A.'s response will be the next time an England player is
arrested abroad, as Bobby Moore was on trumped-up theft allegations in Colombia
during England's final preparations for World Cup 1970 in México. If the
F.A. automatically suspends such a player, it becomes an easy matter to get rid
of one or more key England players as a big tournament approaches. If the F.A.
disregards the foreign arrest--while at the same time following a policy of automatically suspending
players arrested in the U.K.--it insults the foreign country's criminal justice
system and risks setting off a diplomatic furore. Best avoid that nasty
scenario and do what is right in all cases, wherever they originate--conduct an
F.A. investigation if the alleged crime is serious enough and, if it is believed suspension is warranted, give the
player a chance to clear his name at a hearing before the suspension is imposed.
Addendum
Peter Young
19 November 2003
As
we expected, the criminal case against Alan Smith has been dropped, the Crown
Prosecution Service advising the police that bringing formal charges was not in
the public interest. The Football Association has responded by launching
its own investigation into Smith's conduct.
There
lies one of the problems of imposing bans before any charges are brought,
indeed, of imposing any kind of punishment before a hearing is conducted.
Undeniably the F.A. will now be under considerable pressure to justify
itself--to justify the ban it already has imposed on Smith without charge and
without hearing. Otherwise, it will look foolish, having ruled out Smith
from the Denmark match without cause, having made much ado about nothing.
Given this pressure, Smith can hardly expect to receive from the F.A. the
impartial review of the case to which he is entitled.
This
is one of the dangers of acting peremptorily without any deference to fair
play. Unfairness is compounded by further unfairness to avoid the
appearance of unfairness. Surely the F.A. should be more concerned with
treating its constituents--the players--in a fair manner throughout. Every
time it acts unfairly, as it did in this case, it also denigrates its own
reputation. We suggest it now assign the Smith case to an
independent adjudicator who has no vested interest in justifying actions already
taken.
England
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