Why the FA tribunal against John Terry was no more than a show trial.
The problems with FA tribunals.
The separation of power was good enough for the Ancient Greeks and The Roman Empire and has been recognised as the fairest way of ensuring a fair trial in democracies ever since. I have just read the FA tribunal’s 63 page report into the John Terry case and found some of the procedural processes and abuses of power very disturbing. The normal division of power is into a separate legislature, executive, and a judiciary, but the FA don't believe in the separation of power and consequently they are the lawmakers; the policemen; the judge and the jury which is not a healthy state of affairs. The FA argue that their disciplinary commissions are independent, but how can a panel be independent when two of the three "Judges" are FA representatives.
Following the not guilty verdict in the John Terry court case the FA had to decide whether to Charge John Terry and Anton Ferdinand or let the matter drop. Their own rule 6.8 states that if a case has already been to court then the result of the trial and the facts shall be presumed to be correct “Unless it is shown, by clear and convincing evidence, that this is not the case.” Effectively this meant that the FA could not charge John Terry under section E3 (2) which included a reference to ethnic origin and colour and it looked like both players would be charged under section E3 (1) “No participant …..Shall use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.” Both players were blatantly guilty under section E3 (1), but without separation of powers the FA are able to implement whatever charges they choose. To the surprise of many they chose to not charge Ferdinand, but to charge Terry under E3 (2), despite the fact that this was apparently a contravention of their own rules. Here’s where the problem of total autonomy rears its ugly head again, the FA had obviously decided to make an example of John Terry and would be circumventing their own rule 6.8, unless they could introduce new clear and convincing evidence.
A month before the disciplinary meeting the FA changed the rules for their disciplinary meetings making it easier to obtain a guilty verdict, a quite staggering move in the lead up to such a controversial case.
The previous regulation included the sentence: “The more serious the allegation, taking into account the nature of the Misconduct alleged and the context of the case, the greater the burden of evidence required to prove the matter.” This sentence was removed from the new rule effectively making it far easier to for the commission to obtain a guilty verdict. Then again without a balance of power check the FA are able to introduce whatever new rules whenever they wish to, consider the first sentence of Regulation 6.8: “It (the FA) may admit such evidence as it thinks fit.” The FA introduced three new pieces of evidence, none of which could be said to be clear and convincing and even included a piece of hearsay evidence, that a court of law would have regarded as laughable, but that wasn’t the point.
The point was that the FA needed a way to circumvent Rule 6.8 and what the FA says goes and it didn’t matter if the evidence was later shown to be spurious. It allowed the FA to charge Terry under section E3(2) through the back door, which it would appear they were determined to do despite showing a marked reluctance to take any further action against Anton Ferdinand. The FA decides who it charges, what it charges them with, who tries the case and are able to change the degree of culpability in the lead up to the case. Furthermore it is the FA who decide what constitutes “Clear and Convincing evidence” and as the first line of 6.8 declares they can introduce evidence as they think fit.
The first piece of new evidence related to the Barcelona game when a Guardian reporter alleged that Terry had told him that he hadn’t touched Sanchez as he was heading towards the tunnel. As Terry said the opposite to this after the match the FA argued that it wasn’t the first time that Terry had lied, yet the reporter wasn’t called to corroborate his allegation and even the chief magistrate Mr Moore admitted: "The Commission is not satisfied that any aspect of the Barcelona incident can, by itself, properly be regarded as “clear and convincing” evidence. “ However, he still felt compelled to note:”His (Terry’s) actions in a crucial Champions League semi-final show that he is capable of losing his self-control. It was also a significant lapse of judgment for a player and captain which his post-match statement recognises. Those are matters that are relevant to our overall assessment of his disposition, demeanour and conduct during the critical phase of the match against QPR. “
So, the first piece of new evidence revolved around a piece of hearsay evidence and an assessment of his character relating to the sending off. However, if they had wanted to the three wise men could have viewed it in an entirely different light. They could just as easily have argued that it was the first time in almost 700 matches that Terry had been sent off for violent behaviour and that he demonstrated in his after match statement that he is a person who is willing to admit his mistakes and realises when he is in the wrong, the fact that they chose to go down the other route and use this isolated incident to condemn him is interesting to say the least and consistent with the attitude they adopted throughout the procedure.
The 2nd piece of new evidence related to Terry’s press statement on the night of the match and is based on a technicality in the wording. Terry stated “….. I thought Anton was accusing me of using a racist slur against him. I responded aggressively, saying that I never used that term.” The FA argued that Terry used the words and even though it was as a question his statement was untruthful. Sinuous to say the least, especially as Mr Riddle had already commented on the press statement in the original court case, a point recognised by the FA commission:” He (Riddle) submitted that there was nothing inconsistent in the press statement and that, even if there was he regarded such inconsistencies and discrepancies as nothing more than one would normally expect to see in a case like this.”
Even the three wise men who sat in judgement realised that the first two points were spurious at without foundation.
Which left the final piece of new evidence labellled: “The evolution of Ashley Cole’s evidence.” The FA’s argument revolves around the introduction of the word “Black” into Cole’s statement. The first thing to note is that Ashley Cole’s evidence was taken by hand in bullet point notes, whereas Terry’s was videotaped on the same day by Miss Kennedy and Mr Sanhaie of the FA.
Miss Kennedy noted: “Definitely a B word – could have been “Bridge”? But I don’t know for sure.”
Mr Sanhaie noted: “Heard B word but not sure what the word was. Def B word.” When you consider they were all there as a result of the use of the word black it comes as no surprise to find that Cole would not have felt the need to specifically emphasise or even include the word during parts of his statement.
They both only took bullet point notes and their notes were not full ad verbatim statements and the first draft of Cole’s statement contained the following line: “I couldn’t hear what AF was saying although I am pretty sure one of the words began with a B and it could have been the word Bridge.” Cole asked for the statement to be changed to read Black or Bridge, rather than just Bridge, which caused the magistrates to comment: “If Mr. Cole did not mention during his interview the possibility that he had heard Mr. Ferdinand use the crucial word “black” when he insulted Mr. Terry, but spontaneously remembered it a few days later, it would be surprising given the subject-matter lying at the heart of the discussion (i.e. skin colour). If he was sure that the word began with a B, as he appears to have been, it is difficult to see how he thought that it could have been “Bridge” during the interview, but did not think to say that it could have been “black.”
Mr Moore’s comment “It is difficult to see how he thought that it could have been “Bridge” during the interview, but did not think to say that it could have been black.” is at the heart of the matter. Is it not equally as conceivable that Cole never felt the need to expressly mention the word black at the time of the note taking as the word black was the subject matter they were talking about, also the notes on the day were a summary of the main points, rather than a full transcript as mentioned earlier. The whole idea of evolving a statement is to make sure that the statement accurately reflects the words of the witness and Cole obviously thought the word black needed to be included to accurately reflect his statement.
Cole said all along he heard Ferdinand say a word that began with B, he never said it wasn’t black and Mr Moore’s stance is surprisingly confrontational considering this was a first draft taken from hand written incomplete notes, which begs the question why wasn’t the interview videotaped when the equipment was already there for the Terry interview.
Here’s one for the conspiracy theorists. Ms Kennedy testified at the FA meeting, somewhat surprisingly that she was not sure if Mr Sanhaie took notes or not, which seems strange. It seems even stranger still when you consider that Terry's legal teams requests for the transcript of Mr Sanhaie's notes repeatedly fell on deaf ears and Mr Sanhaie notes did not materialise until the eve of the trial. The commision noted that “ The paucity of documentation (from the FA) in connection with certain specific matters was surprising” . Terry’s legal team continually complained about the FA’s tardiness in supplying requested documents and yet Mr Moore was still supportive of the FA in this matter and refused to concede that they had hindered Terry’s case. Mr Moore commented: “Mr. Sanhaie’s notes fell through the net, undermining a categorical assurance that had been given to the Commission. But when they were located, the documents were disclosed despite the inevitable controversy that then ensued. Further, the fact that certain documents were disclosed, and which then caused the FA some difficulty and embarrassment, lends weight to the theory that the exercise led by Mr. Johnson has been undertaken in an honest, fair and transparent manner, in such a way as to facilitate a fair final hearing for Mr. Terry.”
How can it be fair that the body that is prosecuting withholds vital documents from the defendant denying the accused the chance to present their best case. That is not wild speculation, but fact as the Magistrates comments illustrate. The commision placed great emphasis on the fact that they believed Ms Kennedy's testimony that Cole never mentioned the word black, yet this is a witness who couldn't even remember whether her colleague had taken notes on the day or not.Her notes mentioned Bridge whereas Mr Sanhaies notes didn't and they differ on a crucial point, which you could argue is an example of their inconsistency and throws doubt on the accuracy of their note taking. Why wasn't the interview videotaped, why wasn't Mr Sanhaie called as a witness as the prosecution team must have realised that such inaccuracies could be problematical, why did it take the FA so long to disclose his transcript?
The evolution of the Cole Evidence is plausible, he said he thought he heard Ferdinand say a word beginning with B which may have been black or may have been Bridges and the 2nd draft clarified his position. The statement of Mr Barnard, the club secretary is a lot more improbable and he appears to have put words into Cole’s mouth, which reflected poorly on Cole. The commision reported that this reflected badly on Cole's credibility, but is not Cole’s fault unless he was complicit with Barnard and as there is no clear evidence of that, it doesn’t make Cole’s testimony any less valid. Mr Moore and the 2 other FA magistrates failed to agree however and concluded that this was Clear and Convincing evidence: “Mr. Cole’s evidence provides yet further support for the FA’s case that there is plainly more than enough cumulative evidence, both existing and new, to amount to a “clear and convincing” case.” This despite the fact that Mr Riddle had already noted his doubts about the relevance of Cole’s testimony in the court case stating: “Ashley Cole had given corroborating, although far from compelling corroborating, evidence on this point.”
Hardly clear and hardly convincing, just like the first two new pieces of supposed new evidence introduced by the FA to circumvent Regulation 6.8. All three pieces of evidence would almost certainly have been dismissed in a court of law as clear and convincing or offering anything new that was relevant.
There are several instances of the Three wise men sitting in judgement making assumptions as neither Terry or Cole testified and they always appeared to come down on the side of Ferdinand.
For instance Terry testified in the original case that Cole had told him that Ferdinand had accused him of racially abusing him. Moore’s comments are strange to say the least on this matter: “…on the balance of probabilities, that even if such an exchange took place (as to which we have some doubt), it was contrived by Mr. Terry.” This is a serious allegation and one for which there is no proof or even strong circumstantial evidence to back up and even stranger when you consider he prefaces this with: ”It is impossible to follow their respective movements from the film footage to see whether they were ever sufficiently close to have spoken after Mr Terry said the offending words.”
I also found the next paragraph puzzling:
“Mr. Terry made no attempt to confront Mr. Ferdinand when the game ended. Instead, he went to acknowledge the support of the Chelsea fans. If he genuinely believed that he had been the victim of an unjustified accusation of the serious type alleged, it is very surprising that Mr. Terry left it for approximately one hour after the match before he requested a meeting with Mr Ferdinand. The Commission cannot speculate as to what may have transpired during that hour or so, apart from the likely realisation on Mr. Terry’s part that what he said may well have been caught on camera and be a source of trouble for him.”
Firstly, Terry always acknowledges the travelling supporters at an away game and surely Terry would have wanted to speak to Cole in private to find out exactly what Ferdinand had said. Surely it made sense to ascertain the full details before confronting Ferdinand rather than just confronting him and his actions are rational and justifiable in not confronting Ferdinand straight away. I find it very strange that Mr Moore says he cannot speculate what happened, but in his very next sentence does just that in suggesting that Terry’s motives were driven by the fact that he may have been caught on camera.
There are multiple instances of where Mr Moore comments that they felt Terry’s language didn’t seem to fit unless he was lying, despite the fact that three footballers testified that industrial language was common place in a match in the first trial and the language was plausible to fellow players. He also feels the use of the word Knobhead is inconsistent as it is a sexual insult rather than a racial one and is one of several illustrations of how removed he is from the world of industrial language and football.
One of the main reason’s Terry was given a 4 match ban, rather than a 2 match ban was because of the FA’s “Kick it out” campaign, which many people feel is the whole crux of the matter.
Mr Moore commented: “His conduct undermines the FA’s efforts to promote inclusivity, equality and diversity and in combating racism in football through the “Kick it Out” Campaign.“
Contrast this to the comment from the Rio Ferdinand FA report over the Choc ice affair.
“He (Rio Ferdinand) was the Football Association's 'Poster boy' and role model to other professional footballers and has a track record in fronting anti-racism campaigns in football”. Surely that makes the consequences of Rio Ferdinand’s actions even worse and his actions even more hypocritical. Yet Ferdinand got off lightly in comparison, being fined only £40,000 and escaping a ban. The commission argued that Terry’s crime was more high profile and that should be reflected in his punishment, yet compared to the Rio Ferdinand, the punishment seems inordinately harsh.
The FA disciplinary system is in serious need of an overhaul.
Is John Terry guilty? I don’t know.
Is it probable that he was guilty? I don’t know and I’m no nearer to knowing after this mockery of a disciplinary hearing. The only person who can answer that question is John Terry. Bear in mind that if he had been told by Cole that Ferdinand had accused him of calling him black then Terry cannot be found guilty for asking a question even if he used the word black as a paraphrase. Ashley Cole may have mistakenly believed that Ferdinand said the word black and caused the initial confusion. Ferdinand may have said it. Terry, Ferdinand and or Cole could all be lying or it could all be due to a misunderstanding. I don’t know and I don't even know if the three players concerned do.
The enquiry concluded that there is no evidence of terry being a racist due to the overwhelming character witness statements put forward by several black and mixed raced players. Did he just lose it in a moment of weakness only John Terry knows, but what I do know is that we are no nearer the truth after this farce of an inquiry.
I knew nothing about FA disciplinary meetings before I read this report and I was appalled to find that the FA disciplinary system is so open to abuse and if the FA are out to get you then God help you, because they are all powerful with no checks and balances in place, they will do. The tone of the judgement is harsh, with many of its pronouncements apparently laid down by out of touch magistrates who don’t appear to have a grasp of football or industrial language and who assumed a great deal. Is John Terry guilty? I don’t know, but I do feel that he will have to accept the tribunal’s decision whether he is guilty or not because the same body will handle another very expensive appeal under the same Banana republic rules. This case should never have even come before the tribunal unless new clear and convincing evidence was available, which I believe I have illustrated wasn’t the case, but the FA have the final say on that matter and until the FA disciplinary procedure becomes truly independent then its disciplinary hearings can be taken with no more than a pinch of salt.
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