Legal Analysis of FIFA Ban Against Luis Suarez For Alleged Biting – Part I.
On Tuesday, June 24, a man from Uruguay wandered onto a football pitch in Brazil and bit an Italian. Allegedly. FIFA is investigating, and OTF contributor James Vlahakis has been investigating FIFA…
[Editor’s note: James Vlahakis is an attorney. Like, a for real attorney: the disclaimers on his emails would make Tolstoy weep at the word count; he uses the word “moot” in in a secret lawyer language know as “legal-ese”; he probably wears soccer-related cufflinks more often than is strictly necessary. OTF’s USMNT editor, Austin Fido, will translate for those readers who think LLC is an acronym for a fried chicken franchise.]
FIFA has initiated disciplinary proceedings against Luis Suarez. In keeping with international publications with vast resources and scores of legal counsel (well, hello there, ESPN – what brings you to this sentence?), we are reporting this as an “alleged” incident. Last evening FIFA disclosed the following:
I predicted as much when I tweeted that FIFA’s Disciplinary Committee Chairman (Claudio Sulser of Switzerland) had the authority to issue a three-game suspension against Suarez.
Surprisingly, the FIFA procedures are simple and would allow the Chairman to look at the tape, make a decision, throw down a suspension and move on.
Section 3 Article 57 of the FIFA Disciplinary Code discusses prohibitions involving “fair play” and “unsporting” behavior, and Section 3 Article 77 allows FIFA to discipline “serious infringements which have escaped the match officials’ attention.”
Notably, Article 78 authorizes the Chairman to punish behavior unfair or unsporting by “suspend[ing] a person for up to three matches or for up to two months.” While unclear, the Disciplinary Code suggests that the Chairman’s ban cannot exceed three matches.
FIFA’s press release cites Articles 48, 57 and 77, but does not cite to the Chairman’s rights under Section 78. Instead, FIFA is utilizing the Disciplinary Committee to review Suarez’s conduct. The committee is comprised of the following officials from both small and large soccer nations according to FIFA’s website:
FIFA’s citation to Article 48 is curious because Article 48 generally relates to red cards, which Suarez did not receive.
Article 48(1) reads: “any recipient of a direct red card shall be suspended as follows…”
However, Article 48(3), like most statutes, contains expansive language which provides that “[t]he right is reserved to punish an infringement in accordance with art. 77 a).”
Section 77(a) provides as follows: “[t]he Disciplinary Committee is responsible for: a) sanctioning serious infringements which have escaped the match officials’ attention…”
It is clear that Suarez’s alleged conduct escaped the attention of the match officials. It is clear the Disciplinary Committee (and the Chairman acting alone) can punish Suarez.
Article 82(1) provides that only three Disciplinary Committee members are needed to convene a proceeding. It also appears the Committee is expected to be on standby as Article 82(3) provides that “[t]he number of members deemed necessary for each committee are called to the meetings held during the final competitions of the FIFA World Cup.”
While we can assume there are three Disciplinary Committee members in Brasil and able to meet (attending the World Cup is a perk after all), Article 135 provides that video or teleconference proceedings are sufficient.
Article 88 provides that proceedings are confidential and that “[o]nly the contents of those decisions already notified to the addressees may be made public.” Of course, that has not prevented some Committee members from already prejudging Suarez to certain members of the press.
Apparently the familiar American concept of innocent until proven guilty is not a part of FIFA’s rules.
[Editor’s Note: Unless we’re talking about rigged World Cup bids, in which case everybody is innocent until…yeah, we’ll get back to you on what exactly FIFA is waiting for there.]
If you are wondering why Suarez has such a short time to respond to FIFA’s charges, Article 90 states that the person charged must respond “on the day after receipt of the document in question.”
We don’t know exactly when FIFA provided Suarez or his legal representatives with a copy of the charges, Suarez is required to respond by 5 p.m. Brasilia time on Wednesday.
Having said that, Article 91 provides that a party responding to a charge may submit a response “to the relevant body or its address with the Swiss post office no later than midnight on the last day of the time limit.” [Editor’s note: you’d think a Swiss organization would know a thing or two about timekeeping…]
The devil is in the details. The shorter time line provided by FIFA could create the basis for a procedural appeal by Suarez. [Editor’s note: that’s the only free legal advice we’re allowing. Luis, you’ve got some spend. Mr. Vlahakis has a very reasonable hourly rate.]
Having said that, Suarez’s lawyers of the Uraguayan Football Association would be wise to comply with the deadline imposed by FIFA via telefax or hand delivery (Section 91 does not allow for email delivery). [Editor’s note: Why can’t I shake the image of Suarez at a cocktail party trying to persuade Sepp showing him a note on his I-Phone over caipirinhas counts as hand delivery?]
This is not a complicated case to prosecute. Article 96(3) provides that video evidence and witness testimony can be used by the Committee.
Article 97 broadly provides that “[t]he bodies will have absolute discretion regarding proof” and Article 99 places the burden of proof on FIFA. The deck is stacked against Luis. [Editor’s note: If I’m following correctly – this is a private meeting in which the attendees get to decide what constitutes proof and only need to convince themselves…Enjoy your time off, Luis.]
Oddly, FIFA seems to be behind the times in terms of technology. Article 103 suggests that a decision will be issued by fax!
Article 114 provides that “[d]ecisions are passed by a simple majority of the members present,” with the Chairman of the Committee having the deciding vote in case of a tie.
Notably, Article 116 states that the Committee’s decision does not need to be laid out in detail. If Suarez is banned from the World Cup, he can appeal the decision, but Article 124 states that an appeal will not operate to postpone any ban.
Suarez’s appeal rights are limited, according to Article 121, he “may object to inaccurate representation of the facts and/or wrong application of the law.”
Any appeal must be lodged within three days of a decision with specific grounds identified in writing within seven days. I will be reporting on his appeal in a future post
Importantly, under Article 118, no appeal can be lodged for “a suspension for fewer than three matches or of up to two months.”
If the Committee bans Suarez for this amount of time, he won’t have any recourse to appeal the decision with FIFA’s rules. In any event, the Disciplinary Rules do not appear to contain a specific time by which an appeal must be decided.
[Editor’s Note: Basically, they could ban the man until the Final, and spare us all the song and dance.]
As noted above, Article 78 authorizes the Chairman to summarily punish behavior unfair or unsporting with a three match ban.
Article 117 states that the same rules apply when the Chairman makes a decision on his or her own. Presumably these rights have been provided to the Chairman to allow him or or her to make rapid decisions when necessary. [Editor’s Note: Like when the eyes of the world are upon you and you need to look like you know what you’re doing?]
To that end, Article 129(1) states that “[i]f an infringement appears to have been committed and a decision on the main issue cannot be taken early enough, the chairman of the judicial body may, in emergencies, provisionally pronounce . . . a sanction.”
Notably, this provision would have allowed for the immediate suspension of Suarez as Article 130 states that “[t]he chairman shall make his decision based on the evidence available at the time” and the Chairman “is not obliged to hear the parties.”
Article 131 identifies the immediate nature of the sanction by stating that “[t]he chairman delivers his decision immediately” and his or her “decision is implemented immediately.” It is unclear why FIFA’s Disciplinary Chairman did not take this approach given the available video footage of the event and images of the alleged bite. [Editor’s Note: I have an idea why he didn’t – it’s very hard to watch a video when you’re gorging yourself on profiteroles.]
To recap: Suarez could have faced an immediate ban from the Chairman. FIFA’s Disciplinary Chairman did not do this. We don’t know why, but I discuss possible reasons below.
What we do know is that Suarez will now face a FIFA Disciplinary Committee, and any appeal won’t operate to postpone any ban that is issued.
Article 19 provides that a ban go as far as 24 matches or two years, and the ban can be issued for “taking part in any football-related activity” as discussed in Article 22.
While some people have suggested that Article 48(1)(d) provides for as little as a two game ban, Article 48 is limited to circumstances where a player has been issued a red card. I pointed out on Twitter exchange that I think FIFA was off base for citing Article 48.
Returning to the facts at issue, it appears that the Committee has sufficient video footage to render a decision. As in any case, Suarez will mount a defense.
Arguably, the evidence speaks for itself. Having said that, the video evidence opens up the discussion for two related issues: what, if any, criminal liability may exist, and what, if any, civil liability may exist?
As to the first issue, there is precedent in hockey-related legal proceedings which suggest that a person biting another player could be subject to criminal proceedings. On the question of civil liability, would Suarez’s lawyers argue “assumption of the risk”?
For now, we know two things: Suarez can and will be prosecuted by FIFA; and the sideshow could have been avoided by an immediate suspension (for three matches or two months) issued by the Chairman of the Disciplinary Committee, but wasn’t.
At the time this piece went to press, FIFA had not discussed the availability of this sanction or why this approach was not utilized. Maybe it’s for the better that Suarez will appear before a Committee, but at the same time FIFA would have been able to make Suarez old news (if that’s possible) and make a statement by issuing a swift and immediate three match ban.
Such as ban would not prohibit the Committee from taking further action, assuming that Uruguay gets into the final match without Suarez.
Of course, it is possible that FIFA did not want a person with a stake in the proceedings to rule on the issue – after all the Disciplinary Chairman and the President of FIFA are from Switzerland and their nation might play Uruguay in the Final.
The deputy chair could have stepped in if the Chairman recused himself. And it is equally possible that FIFA wanted to give Suarez some semblance of due process and avoid a Donald Sterling type defense which would argue that Luis didn’t get his “day in court.”
[Editor’s Note: Or, you know, someone wanted to activate the emergency profiteroles budget – let there be meetings!]
In the end, we may have a Sterling moment anyway where Suarez’s lawyer tries to come up with an outrageous defense or procedural challenge. I can’t wait to see what his lawyer offers in addition to his already bizarre “conspiracy” comments to the press.
Contributor @jvlaha is an attorney. Follow him, judiciously.