Racism - Mod Note on 1st Post - Read before posting.

opr wrote: »

The fact that Suarez admitted to using the word Negro makes Evra inconsistency even worse if he knew what the word meant and actually made it out to be something different after the game.

Oh you mean the explanation in which he talks about how he can't bring himself to even utter the word. That explanation seems so credible in light of the video below.

Opr

Quandary wrote: »

Of course I have no problem with someone supporting their club. I mistakenly thought you were supporting the manner in which Kenny/Suarez were handling the issue.

My mistake.

The Curious Case of Luis Suarez . . . . . . .

It has become an unavoidable cliche that the Suarez/Evra case cannot be viewed as black or white.  Since New Year's Eve, when a 115 page tome landed in our inboxes, many opinions have been expressed as to whether the FA Regulatory Commission has got it right or wrong. Most have jumped to the conclusion that since the report is well written, very long, detailed and presented in nicely worded legalese, that it must be correct.

The truth, like with many tribunal decisions and, indeed most likely the case itself, lies somewhere in-between. There is much to be admired in the manner in which the commission dissected very complex linguistic issues as well as the nuances of what was said and not said.  They have reported the facts in great detail and the result is that many of us are in a position to draw our conclusions.

That said, the report's findings are somewhat flawed and, in particular, the sanction meted out is completely out of line with the evidence and even the commission's own conclusions.

I should say, at this point, I am a Liverpool fan but also the solicitor for the PFAI, the League of Ireland's players' union. Although my allegiances are naturally with Luis Suarez, I'd like to think that I would take a similar view if a League of Ireland player asked me to represent them in similar circumstances. Indeed, I have defended an Irish player, Jason McGuinness, where allegations of insulting behaviour with racial overtones were made. He received a five match ban.

The Suarez case is unique in its complexity but in the end it comes down to some fairly basic questions.

1. What is the burden of proof?

2. Did Suarez use the word "negro" and, if so, how often?

3. If he did use this word, what should the punishment be?

 

The first question has been the subject of much debate and many commentators seem to believe that the "balance of probabilities" burden is too low. The implication is that the criminal standard of "beyond reasonable doubt" should apply.

I don't believe this is correct and instead a hybrid that is often used in tribunals where professional conduct is the subject of review is more appropriate.  It is usually expressed as "highly probable" and it appear that the commission have rather clumsily agreed to this level by stating that this was a serious allegation and the more serious the charge, the greater the burden. It is a great pity that they didn't express this in clearer terms but I think it is fair to say that the test of high probability is what was applied and if so, I believe this was correct.

However, it's one thing to select the right burden of proof and it's quite another to apply it. This is where the commission made its first mistake.  It's patently clear, and admitted by Suarez, that the word "negro" was used at least once. Whether it was used again is a matter of great debate and certainly could not be described as highly probable.

Quite simply, the only evidence that there was more than one use of the word comes from Evra himself and without independent corroboration, in addition to the inevitable linguistic confusion which is central to the whole case, it simply cannot even be described as probable, much less highly probable.

While the commission quite rightly point out inaccuracies in Suarez's evidence, they do not justify their quantum leap from this to believing everything Evra says without a scintilla of independent evidence.

Now, this is not to say Suarez is innocent.  He's not, he deserves a ban for the inappropriate use of the word "negro" that he has admitted but this needs to be proportionate to what can be legitimately proven and not the educated conjecture of the commission.

The range of sanctions available is effectively from two matches upwards. It is clear that he is in breach of regulations and must serve at least a two match ban.  Since there is a racial element, the entry point of four matches seems apposite.  However, the commission have erred by increasing it largely due to the extremely dubious finding that he said the offending word seven times.

However, even if you accept that reasoning, it is very difficult to understand how considering the guidelines recommend a doubling of the sanction for a first offence and trebling for second. The effective quadrupling of the two match standard ban suggests that the Suarez findings were even worse than a standard second offence.  This makes no sense whatsoever unless you reach the obvious conclusion that the commission were seeking to make an example of Suarez rather than employing the usual rules of natural justice.

An interesting example of how the commission glossed over certain inconsistencies while focussing on others is the manner in which it examines the motive for Suarez saying what Evra alleges he said. While agreeing that this upbringing, parentage and friends would militate against such behaviour, they can find no reason why he would engage in such behaviour and instead simply dismiss it as being out of character with no reason provided as to why he should suddenly remove himself from his normal characteristics.

This decision was driven by desire to believe either one party or the other, in the entirety.  This was the fatal mistake that the commission made because there was no need for this. It is perfectly feasible for any tribunal to decide that part of the charge was proven and the balance was not.  And quite simply, this is what they should have done.

So what now? In my humble opinion, Suarez should appeal.  He should admit, on the one occasion which he accepts using the word, that he was wrong to do so. He could argue that he did not use it on other occasions and such instances remain unproven in accordance with the burden of proof, but that he regrets the use of the word at all.  He should apologize for this and agree to assist the anti-racism campaigns.  He can then legitimately argue that the ban is excessive and should be reduced to the entry point of four matches.

In my opinion, if he adopts such an approach, he will succeed in reducing the ban, maybe not to four matches but certainly to no more than six. The question now is whether Suarez is prepared to accept any level of contrition, whether football considerations will hold sway (the plethora of upcoming cup matches might provide an opportunity to see out the current ban) or whether he and Liverpool want to get the best result and help combat racism at the same time.

There is still scope for a sensible conclusion to this fiasco but it needs brave decisions. History to date suggests we shouldn't hold our breath.

 

Stuart Gilhooly is the solicitor for the Professional Footballers Association of Ireland and was also recently named Journalist of Year at the Irish Magazine Awards.


He can be followed on twitter @PFAISolicitor