what has the Football Association achieved through its peremptory last-minute
suspension of Rio Ferdinand from the critical European Championship 2004
qualifying match against Turkey?
F.A. has deprived England of its best defender and plunged the team into
demoralising and distracting chaos at precisely the time the team should be
focused exclusively on preparation for the do-or-die match just days away.
It has thus severely damaged the team’s prospects of gaining the draw
they need to secure qualification, not least because it has also given aid
and comfort to the Turkey team, reportedly gleeful over the entire mess.
Beyond that, the F.A. has demonstrated a thorough disdain for fairness
in its disciplinary processes and severely impaired the reputation of one of
English football’s leading representatives along the way.
These are self-inflicted wounds, entirely unnecessary, and plain
evidence that bumbling incompetence continues to infect the F.A. at its
one thing the F.A. has not achieved is the apparent objective underlying new
F.A. chief executive Mark Palios’s insistence on making Ferdinand ineligible
for the match:
that the F.A. is seriously committed to ridding the game of drug abuse.
That objective has been entirely lost in the furious debate over the
bona fides of the suspension, and it could not have been achieved in any event
in a case devoid of evidence of actual drug use.
facts thus far reported are few. Ferdinand
was told he had been chosen to undergo a random drug test at the conclusion of
a Manchester United training session on September 23, 2003, some two weeks
before the suspension was announced. The 23-year-old claims he simply forgot about the test
because he was in the middle of moving and rushed home from training for that
reason. His neighbours confirm
there was a moving van outside his home on that day.
He soon realised he had forgotten the test and returned the same
afternoon to the training ground only to find the testing personnel already
had left. He arranged and took a
drug test within 36 hours; it produced negative results.
The actual facts
and the liability, if any, to which they subject Ferdinand are questions for a disciplinary hearing.
Long-established, fundamental principles of fairness—known
collectively as due process of law--require that the actual facts and the
liability to which they give rise must be determined at a hearing and that the
hearing must be held before any sanction may be imposed on a player. In previous cases where players have failed to submit
to drug testing and offered a believable exculpatory explanation for their
failure, the F.A. has imposed only minor sanctions and has not even publicly
revealed the players’ names.
F.A. held no hearing before it suspended Ferdinand from the Turkey match.
Basic principles of fair procedure were ignored.
Instead, the F.A. took its procedure from Lewis Carroll’s The
Adventures of Alice in Wonderland and Franz Kafka’s The Trial—first
the punishment and then the trial.
might have been an urgent need to take action had there been evidence that
Ferdinand was actually using drugs. In
that event, the F.A. could have moved with dispatch and immediately scheduled a hearing. But there was and
is no such evidence in Ferdinand’s case and no need for urgency.
Accordingly, the F.A. in no way moved with dispatch—until last
happened was this. As the time
arrived for England coach Sven-Göran Eriksson’s squad announcement,
originally scheduled for Sunday, October 5, Palios decided it would be
inappropriate for Ferdinand to wear the England shirt against Turkey the
following weekend. Realising that
at that late date—the very weekend of the squad announcement--it would be
impossible to schedule and hold a hearing before the squad omitting Ferdinand
(and thus the sanction of suspension) was announced, the F.A. at the last minute
offered Ferdinand the chance to submit to an F.A. interview on Sunday or
Monday. For that reason, the squad announcement was postponed, first until
Monday and then until Tuesday.
refused the interview offer—and rightly so. In
the first place, the last-minute offer of an interview was a transparent effort to give Ferdinand the semblance of due
opportunity to explain his failure to submit to the test—before the
suspension was announced. But due
process requires that a hearing be conducted at a meaningful time, after advance notice
sufficient to allow the
accused time to prepare his defence, to gather witnesses and other
evidence and to consult counsel and prepare legal argument.
In no sense was the last-minute offer of an interview of Ferdinand
himself even a remotely
adequate substitute for a hearing meeting minimal standards of fairness.
Quite apart from that, the F.A.’s last-minute rush suggests very
strongly that the F.A. already had decided to impose the suspension and that
the offer of an interview was merely a pro forma bow to due process
which the F.A. hoped--in vain-- would give at least some appearance of fairness to a
actually already reached.
formal statement the F.A. issued claims that “[i]n making the policy
decision not to consider Rio Ferdinand for selection for the England squad to
face Turkey,” the F.A. “is not pre-judging the outcome of any possible
future disciplinary hearing.” That
statement is pure deception and reveals the contempt the F.A. has for England
fans, whom it plainly views as a gullible lot.
The fact is that the F.A. already has judged Ferdinand guilty;
otherwise, it would not have suspended him from the Turkey match.
And the sleight-of-hand does not disguise the fact that it surely will
be impossible for the F.A. to reach a decision at the disciplinary hearing
that does not justify the punishment it already has peremptorily imposed on
F.A. lackeys in the press claim the F.A. had no other choice than to suspend
Ferdinand. Of course it did.
It could have chosen to follow fair procedure and let him play on until
after the hearing is held and until suspension, if it is warranted, is fairly
imposed. Due process is not a choice; it is a requirement.
Were the F.A. later criticised—unfairly—for having permitted
Ferdinand to play against Turkey, it could simply point to that requirement as
of those F.A. press toadies, the peripatetic Oliver Holt, whose distortions in the London
Times of Glenn Hoddle’s religious beliefs helped incite the lynch-mob atmosphere that led to the England manager’s
departure, now writes in the London Daily Mirror that invocation of such legal
concepts is sickening, “demeaning a hugely important issue with procedural
objections and legalistic semantics.”
the game of drugs is, of course, an admirable goal of tremendous importance,
but like all other goals, it is not worth the sacrifice of fundamental
fairness. Summing up the thousands
on thousands of judicial opinions in the English-speaking world which together
have established procedural due process as a fundamental right that may not be
ignored on grounds of expediency, the late U.S. Supreme Court Justice Felix Frankfurter
"The history of liberty has largely been the history of observance of
Men and women
much wiser (and fairer) than Holt know that the distinguishing mark of
civilised societies is their recognition that the ends never justify the means.
Holt’s disregard for this basic principle of decency matters little; he has no power to abuse
others apart from his inartful verbal bullying.
But it is deplorable that the F.A. needs to be reminded of it.
decision to suspend Ferdinand without a hearing was at once highly unfair and,
ultimately, foolish. It has set off a player revolt which may result in
a player strike, forfeiture of the Turkey game and disqualification of the
England team from the European Championship competition. At the very
least it has severely damaged the team's chances of qualifying short of the
playoffs. These consequences were predictable to anyone in touch with
reality, and a prudent F.A. leadership would have paid heed to them. The
F.A. evidently still has to learn that it can no longer treat players in an
autocratic and highly unfair manner without serious repercussions.
F.A. is highly unlikely to back down from the suspension. Despite a
history of glaring incompetence and repeated blunders, it has never admitted
it has been wrong until long after the fact, when the officials responsible
for the bungling are no longer around. It is simply appalling that the
England team's continued participation in the competition could be in jeopardy
because the F.A. has not learnt there are limits to its power and because the
pride of its leaders prevents them from admitting their mistakes.
dearly hope that the strike does not occur; indeed, we do not think it
will. Apparently, however, it will take something of that order to make
the F.A. leadership realise it is accountable for its abuses of power.