Comment
Football Shirked its Responsibility in the Bowyer/Woodgate Affair
The F.A. must make its own determinations when footballers are charged with crime

Peter Young
18 January 2002

'JINGLE BELLS, Sarfraz smells, Woodgate got affray. Oh what fun it is to see Bowyer get away.'

This is the chant from Leeds United fans at Elland Road, and they have it about right.

The Football Association need not and should not set down hard and fast rules governing the national team eligibility of footballers who have been hauled into court on criminal charges for off-the-pitch conduct.  Only a case-by-case approach, taking into account the peculiar facts of the case at hand, affords the flexibility required to assure that the ultimate decision at once reflects fair treatment of the footballer and adequate protection of the integrity and reputation of the national team.  

Yes, the integrity and reputation of the national team are at stake.  Insistence that footballers must behave impeccably because they are role models for the young is both unrealistic and absurd.  Far better that the young look to those they know for guidance in their behaviour and that they learn that footballers are not idols to be imitated, but real people with real problems, like the rest of us despite the talent, fame and fortune that are uniquely theirs.  Yet representing England on the field of play remains a great honour, even in an age when values are jaded and cynicism rules.  It should be regarded as just that--a great honour--by the men who play for England and by those who select the men who play for England, indeed, by the football establishment in general and the football-viewing public at large.  It is a matter concerning the reputation, as well as the integrity, of English football if only because the mass media throughout the world exhaustively report the proceedings against footballers charged with crime.

What should be done about footballers pending their trial on criminal charges? 

The claim that the F.A. treated Lee Bowyer and Jonathon Woodgate unfairly because it barred them from playing for England before their trial on charges of thuggery is false.  The presumption of innocence is a legal doctrine that binds only the criminal justice system.  The pendency of criminal charges means that duly appointed law enforcement authorities have determined there is probable cause to believe the accused is guilty of the charged offence, and it always has been sufficient ground for refusing employment or office.  A fortiori it is a legitimate ground for refusal to confer an honour.  Footballers do not have a right to play for England; that is a discretionary privilege conferred on those deserving the honour.  The F.A. was entirely within its rights in refusing to confer the honour of selection for England on two players facing serious criminal charges.  It is the F.A.'s duty to protect the integrity and the reputation of English football.

Whether the F.A. should bar a player charged with crime from playing for England depends on the circumstances of the case.  There are cases and there are cases.  When Bobby Moore was detained in Colombia on a trumped-up shoplifting charge obviously brought to disrupt the England team’s preparations for the World Cup 1970 final tournament in Mexico, it would have been perverse to suspend him pending disposition of the charge.  On the other hand, when serious criminal charges involving violent conduct are brought against footballers, the F.A. should not allow them to represent England on the field of play.  Plainly the F.A. must retain the discretion to look at the legitimacy and the seriousness of the charges before it decides whether suspension is warranted.

Concerns about fair treatment for footballers are easily resolved.  When the F.A. makes a preliminary determination that suspension from national team eligibility is appropriate, it should issue an order commanding the footballer to show cause why he should not be suspended at a hearing presided over by an independent hearing officer of suitable qualifications.  The footballer then has a choice.  If he wishes to contest the suspension ahead of his criminal trial, he may do so.  If he decides not to—and, as we shall see, he may not want to—then the suspension goes into effect.  In either event, fairness is served because the footballer has been given the opportunity to contest the basis for the suspension at a hearing. 

 What should be done about footballers after their acquittal of criminal charges? 

The claim that the criminal jury that acquitted Lee Bowyer found him innocent is false.  The jury decided only that Bowyer's guilt had not been proven beyond a reasonable doubt.  It found him not guilty; it did not find him innocent.  There is a big difference between the two.  That is why the criminal trial verdict of not guilty does not preclude the civil suit the victims and their families are bringing against Bowyer (as well as Woodgate, who was found guilty of affray).  There may be cases in which the F.A. should continue to impose suspension from eligibility for the national team even after acquittal.

Actually the F.A. and Leeds United did Bowyer and Woodgate a huge favour by letting the questions of further suspension from the national side and their standing at the club ride on the outcome of the criminal trial rather than conducting independent inquiries and hearings themselves.  That gave Bowyer and Woodgate huge advantages they would not have enjoyed in a football disciplinary hearing, among them a requirement that their responsibility be shown by proof beyond a reasonable doubt, the most severe standard of proof there is, and the right to trial by a jury drawn from a community that undoubtedly included large numbers of football fans more concerned about protecting popular footballers and a popular football team than seeing justice done. 

When the F.A. banned Woodgate and Bowyer from the England team pending disposition of the criminal charges, they could have demanded that the F.A. give them a hearing.  They did not do so.  The reason is that that course would have had their responsibility for the thuggery decided by a lesser standard of proof, proof by a mere preponderance of the evidence, and by a decision-maker perhaps not as prone to bias.  It is a safe bet their lawyers considered asking for a hearing and decided not to.  No competent lawyer would advise a client to subject himself to that kind of a hearing ahead of a criminal trial if there is any risk of an adverse decision—and there nearly always will be such a risk when law enforcement authorities have decided the evidence warrants institution of criminal charges   Footballers facing criminal charges will rarely ask the F.A. for a hearing.

But the football establishment—both the F.A. and the clubs—shirk their responsibility if they shunt the decision as to whether footballers should be disciplined or banned off to the criminal justice system.  That system is designed to decide whether imprisonment is warranted, and because liberty is at stake, its fact-determination mechanisms are heavily weighted in the accused’s favour.  An acquittal does not indicate that the accused footballer did not in fact commit the conduct with which he was charged. 

If the football establishment truly wishes to ensure that footballers who have committed the vilest sort of conduct do not represent club or country on the field of play, it must not shirk its own responsibility to conduct its own inquiries and to make its own factual determinations.  The F.A. should preserve the option of continuing a ban from national team selection even after acquittal if the circumstances warrant it.  Again, footballers should be given the opportunity to show at a hearing that continued suspension is not warranted.

The football establishment collectively abandoned its responsibility in the Bowyer/Woodgate affair.  It shifted all factual inquiries and determinations to the criminal justice system and let the criminal justice system’s determinations control football decisions.  The haste with which the F.A. reinstated Bowyer’s national team eligibility—within a couple of hours of his acquittal—was unseemly.  And Leeds United’s response—the award of generous new contracts to both Bowyer and Woodgate within days of the jury’s verdict—was so ghastly that one is tempted to conclude that football is too removed from the real world to be capable of recognizing what is right and what is wrong.

What should be done about footballers after their conviction of criminal charges?

Again, it depends on the circumstances.  Conviction on some minor offences may not warrant any sort of suspension from national team eligibility.  And even if some sort of suspension is warranted, there must be room for rehabilitation and forgiveness.  Tony Adams, for one, served time for drink driving and returned to serve his country admirably, as both player and captain.   Even those who have committed much more serious offences might eventually deserve reinstatement.  Of course, rehabilitation and forgiveness require considerably more than lip service to remorse and apology.  There has been nothing more than lip service, if that, in the Bowyer/Woodgate travesty.

The England team may suffer from the continued absence of Bowyer and/or Woodgate.  But that is the cost of the football establishment's failure to take measures that make it plain that it will not tolerate criminal conduct by footballers, and it must be paid to prevent further harm.