Following a lengthy period of investigation, The Football Association have today announced that they have charged the West Bromwich Albion player Nicolas Anelka following his much publicised ‘quenelle’ goal celebration during their fixture against West Ham on 28 December 2013. FrontRow Legal’s Alan Darfi, who prior to joining the practice spent 6 years at The FA, 2 of which in the Regulatory Legal team who have issued the charges against Anelka, takes us through the ins and outs of the process.
Anelka has been charged under FA Rule E3(1) for making a gesture which was abusive and/or indecent and/or insulting and/or improper. In addition, it has been alleged that this was an aggravated breach in that it included a reference to ethnic origin and/or race and/or religion or belief, in accordance with FA Rule E3(2). Anelka has until 6pm on 23 January 2014 to respond to the charge. Although there are various options available to the player, it is almost certain that he will deny the charge and request that a personal hearing be convened.
When a player is charged under FA Rule E3(1) and it is alleged that an aggravating factor is present, the hearing takes part in 2 stages. During the first stage the commission members will consider the first part of the charge. In this case, this will be whether they feel that the gesture performed by Anelka was indeed abusive and/or indecent and/or insulting and/or improper. Although Anelka has stated that this gesture was simply a reference to his friend Dieudonne M’Bala M’Bala, an anti-establishment comedian who first performed the gesture 4 years ago, it is widely accepted to have an anti-Semitic and/or racist meaning in France, which is where Anelka is from. The FA have announced that they consulted an independent expert during their investigation process, therefore it is certain that they will have a report which sets out that this gesture is clearly of a racist nature and that, importantly, Anelka would have been aware of this. Although Anelka is likely to claim that (1) the gesture is simply anti-establishment and not racist in any way; or (2) if the gesture does have racist undertones then he was not aware of them, in light of this report it will be an uphill battle to prove, on the balance of probabilities (which is the standard of proof adopted by FA commissions), that the gesture was not abusive and/or indecent and/or insulting and/or improper.
If the first part of the charge is found proven, the commission members will then consider the second part of the charge, namely whether the breach should be seen as being aggravated by reference to ethnic origin and/or race and/or religion or belief. The arguments above are likely to be repeated if this point is arrived at. Again, it is likely to be an uphill battle for the player, in light of the evidence which has almost certainly been obtained from the independent expert. It is this section that West Brom’s lawyers will be most concerned with however, as a guilty verdict will have serious connotations for their player and club. This season The FA have brought in new regulations, in line with guidance from FIFA, which state that ‘where a Participant commits an Aggravated Breach of Rule E3(1) for the first time, a Regulatory Commission shall impose a suspension of at least 5 matches … The Regulatory Commission may increase this suspension depending on any additional aggravating factors present’ Therefore, if Anelka is also found guilty under E3(2) the minimum sanction he will face will be a 5 match suspension, which may rise to more. When you consider the similar high-profile cases of John Terry (4 matches) and Luis Suarez (8 matches), both of which took place before the new regulations came into force, there is an argument to say that Anelka will be looking at the minimum sanction rather than anything higher, due to the fact that his offence was singular, therefore more in line with the John Terry incident. However obviously this will depend entirely on the facts of the case as they come out. Due to the fact that the quenelle has been likened to a nazi salute, there is also an argument to say that this suspension may be higher.
If a guilty verdict is delivered, West Brom will then consider whether to appeal against the decision. Obviously the club will have more to take into consideration than just whether they feel the decision is correct or not however. As has been evidenced by Zoopla’s announcement that, in light of these events, they will not be renewing their sponsorship of the club, a deal which was the largest in the club’s history, there is more than just football at stake here. Although Chelsea and Liverpool both famously stood by their players following similar findings, we are talking about a player who is arguably less important to West Brom than the club captain was to Chelsea or star striker was to Liverpool. It will certainly be interesting to see what action the club do decide to take if the player is handed a lengthy ban, particularly in light of how much his actions have already cost them.