By Jonathan Copping, Sports Lawyer, Bolt Burdon Law Firm, London, United Kingdom
The English Football Association (FA) has handed down two lifetime bans to supporters, who made Nazi salutes during an England versus Germany football match, which recently took place in Dortmund, Germany. The so-called ‘English disease’ of football hooliganism has once again reared its ugly head!
The bans issued by the FA are the first lifetime bans to be handed out. Previous racist incidents involving England supporters have led to bans of shorter varying lengths.
FIFA’s rules and regulations provide that the event organiser must guarantee that, in the stadium and its immediate vicinity, supporters do not act in a provocative or aggressive manner, which includes any racist behaviour. The rules also state “that all associations and clubs shall observe the relevant FIFA regulations and implement all available measures to prevent such conduct”.
In accordance with Article 67 of the FIFA Disciplinary Code, the FA is liable for the conduct of England supporters at games in which the England team participates. If the conduct of England supporters is provocative or aggressive, FIFA has a full range of sanctions, including the ability to fine the FA and ban England from competing in competitions.
Additionally, the FA has been concerned that England travel club membership levels are dwindling. There are presently 8,000 members of the travel club, down from 57,000 a decade ago. It has been reported that the FA are worried that the behaviour of some England fans abroad is putting off families from travelling to matches. This is likely to be one of the reasons for the decline in membership numbers; however, one must also take the view that the poor performances of the England team, over the last few years, has also contributed to this decline in numbers.
There has been sparse comment on the proportionality of the lifetime bans. The FA retains the right to sell tickets to games in which England are participating and control who enters the stadium when the England team are playing at home. There is no doubt that making a Nazi salute is an extremely offensive and racist action and should be punished severely. The FA has deemed that making such an action deserves a lifetime ban, as it no doubt wants to send a strong message that such behaviour has no place within football or society in general.
It is unlikely that the individuals, who have received the lifetime bans, could use the UK Human Rights Act of 1998 to challenge them.
The Courts in England, generally speaking, are unwilling to deal with legal challenges to the rules and regulations of sports governing bodies, on the basis that, if the governing body was not in place, a public authority would not take its place. This has previously been confirmed in relation to a challenge for a judicial review of a sports governing body. Even if it were possible to use the Human Rights Act to challenge the lifetime bans, it is almost certain that any such challenge would fail. The most appropriate basis for such challenge would be article 10 of the European Convention on Human Rights of 1950: freedom of expression. However, that challenge would probably fail, because such a right is restricted to protect the prevention of disorder or crime, in the interests of national security and for the protection of the reputation or the rights of others, among other things.
The FA, in the view of the author, has dealt with this matter with an appropriate punishment. There is absolutely no place in football or society as a whole for the behaviour that took place in Dortmund on 22 March 2017!
Jonathan Copping can be contacted by e-mail at ‘JonathanCopping@boltburdon.co.uk’