Peter Young
8 October 2003
England Football Online
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Comment: Rush to Judgment:  The Rio Ferdinand Affair

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The Football Association’s Shoddy Conduct Shows It at Its Bumbling Worst
 

Just 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?

The 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 highest level.  

The 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:  to demonstrate 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.

The 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.

The 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. 

There 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 weekend.

What 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.   

Ferdinand 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 process—an 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 decision actually already reached.

The 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 Ferdinand.

The 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 the reason.

One 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.”

Ridding 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 observed, "The history of liberty has largely been the history of observance of procedural safeguards."

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.  

The 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.  

The 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.  

We 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.