SCOTTISH FOOTBALL ASSOCIATION
JUDICIAL PANEL APPELLATE TRIBUNAL
Appellant:
Respondent:
Aleksandar Tonev
SFA Compliance Officer
APPEAL HEARING 4 DECEMBER 2014
HAMPDEN PARK, GLASGOW
Tribunal Members:
The Right Honourable Lord Bonomy (Chairman), James Hastie,
Alan Dick
Counsel for appellant: Richard Keen QC
In attendance:
Aleksandar Tonev
Liam O’Donnell Solicitor
Michael Nicholson
Company Secretary of Celtic Football Club
John Collins
Assistant Manager Celtic FC
Bulgarian Interpreter
Counsel for respondent: Aidan O’Neill QC
In attendance:
Tony McGlennan
SFA Compliance Officer
Neeraj Thomas Solicitor, Burness Paull LLP
Andrew McKinlay
SFA Director of Football Governance and Regulation
Also in attendance:
Secretary of Appellate Tribunal
Background
[1]
A notice of complaint was issued by the Compliance Officer to Aleksandar Tonev, the
appellant, arising out of a match which took place at Celtic Park between Celtic FC and
Aberdeen FC on 13 September 2014. The complaint alleged that the appellant had breached
Rule 202 of the Disciplinary Rules of the Scottish Football Association (SFA) set out at
Annex A of the Judicial Panel Protocol, by committing “Excessive Misconduct by the use of
offensive, insulting and abusive language of a racist nature”. The notice set 9 October as the
date for the Principal Hearing. On 26 September 2014 Liam O’Donnell, solicitor, wrote to
the Compliance Officer on behalf of the appellant to state that he “strongly denies” the
alleged breach of Rule 202 and that he would be representing him at the hearing.
Thereafter the hearing was rearranged for 30 October.
[2]
Mr O’Donnell duly appeared with the appellant at the hearing on 30 October which
we understand lasted seven hours. The crucial question for the three-man Judicial Panel
was whether, following a heavy challenge by the black Aberdeen player, Shaleum Logan, and
further contact with him by Logan’s arm, the appellant abused Logan by calling him a “black
c***”. Evidence was given by these two players, the referee, the Aberdeen captain,
Mark Reynolds, the Aberdeen manager, Derek McInnes, and the Celtic assistant manager,
John Collins. The panel also had before them the referee’s report of having the matter
drawn to his attention, the statements of Logan, Reynolds and McInnes, and the statement
of the Aberdeen Football Operations Manager, Steven Gunn. In addition they viewed
four video clips reflecting events in the match.
[3]
The Judicial Panel issued their determination and the Written Reasons therefor on
6 November 2014. They held it established that the appellant did direct the expression
“black c***” at Logan and decided to impose a sanction of a seven-match suspension.
[4]
The appellant now challenges both the finding that he breached Rule 202 and the
length of the suspension. In his Notice of Appeal the appellant relies on two of the
Permitted Grounds of Appeal provided for in paragraph 14.8 of the Judicial Panel Protocol in
challenging the determination that he breached the rule: firstly, that the Tribunal failed to
give him a fair hearing; and secondly, that the Tribunal issued a determination which it could
not properly have issued on the facts of the case. The Ground of Appeal stated in relation to
the period of suspension imposed is that it is excessive.
[5]
All three grounds raise points of law. While it is necessary to review the whole facts
of the case to decide upon each of these grounds, that review has been based on the factual
findings made by the Disciplinary Tribunal. They observed the witnesses, heard their
evidence, reviewed certain documents and video clips and deliberated before making their
findings and the ultimate determination. This appeal is not a rehearing of the case where
the evidence is led again or additional evidence is presented. As is standard practice in such
cases, the appeal has been conducted throughout on the basis of the findings made by the
Disciplinary Tribunal.
[6]
Rule 202 is in the following terms: “No player shall commit Excessive Misconduct at
a match, including committing offences in the Schedule of Offences in Annex C, in respect of
which there is aggravation by any factor, (including but not limited to prolongation of the
incident; combination of different offences; continued use of offensive, abusing and/or
insulting language and/or behaviour; calling a match official a cheat and/or calling a match
official’s integrity into question; failure to comply with a match official’s requests; adoption
of aggressive behaviour towards a match official; any racist, sexual, sectarian and/or
otherwise discriminatory element; and the degree of any physical violence); and/or by
committing Unacceptable Conduct”. In this case the offence in Annex C was “offensive,
insulting or abusive language” and it was allegedly aggravated by a “racist element”.
Submissions of the parties
[7]
Richard Keen QC presented his submissions in support of both grounds challenging
the determination together because, he said, they turn upon the same factual matrix and
both relate to the way in which the Disciplinary Tribunal addressed the standard of proof. It
is well recognised that sporting disciplinary procedures are not criminal proceedings where
guilt has to be established. Determinations do not fall to be made on the basis of proof
beyond reasonable doubt, but rather on the basis of proof on the balance of probabilities.
However, it was Mr Keen’s submission that the more serious the allegation or its
consequences, the greater is the burden of evidence required to prove it on the balance of
probabilities. The issue, therefore, came to be whether the Disciplinary Tribunal had failed
to recognise that and assess the evidence to the proper standard. In his submission, the
Tribunal had failed to recognise and apply the weight of the burden of evidence required to
prove the complaint on the balance of probabilities where the appellant’s contention was
that Logan had been mistaken.
[8]
In Mr Keen’s submission reference was made to the opinions of Lords Prosser
and Penrose in Mullan v Anderson 1993 SLT 835 at 846/847 and 851 and the opinion of
Lord Hamilton in First Indian Cavalry Club Limited v HM Commissioners for Customs and
Excise 1998 SC 126 at 138. Mullan involves a claim for damages in which an allegation that
the defender had committed murder had to be proved on the balance of probabilities. In
both that and First Indian Cavalry Club¸ relating to action taken for the purpose of evading
VAT, it was recognised that the nature of the matter to be proved is a material circumstance
to be taken into account in considering whether it has been proved on a balance of
probabilities. Mr Keen contended that in this case, in which the only witnesses who could
hear what had been said were the appellant and Logan, it was not sufficient for the
Disciplinary Tribunal to simply accept Mr Logan’s account and on that basis hold the
complaint proved. They required to go further. In light of the unusual nature and the
gravity of the allegation and the consequences for the appellant, they were bound to then
give specific consideration to whether in all the circumstances the evidence was sufficiently
cogent to establish the complaint to the required standard.
[9]
Mr Keen further submitted that the written submissions of the Compliance Officer in
opposition to the appeal demonstrated the same error at paragraph 5.9, where it was
submitted that, the Disciplinary Tribunal having found unequivocally in favour of the
credibility and reliability of Mr Logan as against the appellant, that was an end of the matter.
The fact that the Disciplinary Tribunal had approached the matter in that perfunctory way
was also illustrated by paragraph 35 of their Written Reasons where they said that the
Tribunal preferred the evidence of Mr Logan on what was said to him by Mr Tonev during
the match, and followed that by beginning the next sentence with the word “Accordingly”.
There was nothing to indicate that the Disciplinary Tribunal had done any more than simply
decide that, because they believed the evidence of Logan, the complaint was adequately
proved.
[10]
He explained that, even after the Tribunal had found Logan to be a credible and
reliable witness, a number of questions remained to be addressed, such as how the weather
conditions may have affected Logan’s ability to hear what was said, the fact that the
appellant is Bulgarian and that English is not his first language, and the unusual and
improbable nature of the complaint. If they found no further assistance in addressing these
questions, then they should have asked themselves whether the evidence they had accepted
from Logan was sufficient on its own to establish such a serious allegation on the balance of
probabilities. In so far as they did have regard to other evidence, it was evidence relating to
Logan’s subsequent actions and had no bearing on the question whether his account on its
own sufficiently proved the complaint.
[11]
Mr Keen’s submission in relation to the period of suspension had two aspects. He
initially contended that the aggravating factor that the offensive language was of a racist
nature appeared to have been taken into account twice by the Tribunal. He further
submitted that, having regard to the whole circumstances, including the words used, the
player who used them, the context in which they were used and the fact that they were
uttered only once and not repeated, the appellant’s conduct fell to be regarded as falling at
the Lower End of gravity of breaches of Rule 202 for which a suspension of up to
four matches was appropriate. In this case that should be reduced by two matches on
account of the mitigating factors to which the Tribunal had regard, in particular the short
duration of the incident, the lack of premeditation, and the appellant’s good disciplinary
record.
[12]
In response Mr O’Neill submitted that the case was simple and straightforward and
invited the Appellate Tribunal to apply common sense and their experience of football (in
the case of two members of the Tribunal) in deciding whether the Disciplinary Tribunal had
erred. The only challenge to Logan’s account had been that he was mistaken as to the words
used. The Disciplinary Tribunal had the opportunity to observe how he responded to the
challenge of his account by cross-examination and he had clearly stood up to that test. No
reason why he may have been mistaken had been put to him. Logan’s immediate reaction
to the incident and his conduct thereafter in bringing the matter to the attention of his
captain, the referee, club staff and other players had been consistent and provided support
for the credibility and reliability of his account. The only basis on which he could have been
held to be mistaken was the evidence of the appellant which had been rejected by the
Tribunal.
[13]
Much had been made in the course of the appellant’s evidence about whether the
appellant understood the meaning of the word “c***”. What really mattered was the
element of racism reflected in the use of the word “black” with which, as could be seen from
paragraph 28 of the Written Reasons, he was plainly familiar. The circumstances of this
complaint did not bear comparison with a case where murder had to be proved.
[14]
Mr O’Neill invited the Appellate Tribunal to conclude that the core question for the
Disciplinary Tribunal was whether they believed and were prepared to rely upon the
evidence of Logan. The circumstances of the case were not such as to require some
unspecific additional burden of evidence to establish the complaint. Under reference to the
opinion expressed by Lord Brown in In re D (Secretary of State for Northern Ireland
intervening) [2008] UK HL 33 [2008] 1 WLR 1399 at paragraphs 45 to 47, he submitted that
the seriousness of the consequences of being found in breach of Rule 202 were irrelevant to
the Disciplinary Tribunal’s assessment of the balance of probabilities.
[15]
In relation to the sanction imposed, Mr O’Neill simply submitted that it fell within
the range of penalties that the Disciplinary Tribunal were entitled to consider and impose in
the exercise of their discretion.
Decision on Finding of Misconduct
[16]
To make a proper assessment of competing cases and reach a determination in
favour of one on the balance of probabilities requires that all factors relevant to that
exercise are taken into account, considered and weighed in the balance, and a
determination made for which intelligible, rational and adequate reasons are given. In a
situation such as the present, where there are two inconsistent accounts, it is not a question
of deciding which on balance is the more likely version. Before a determination can be made
that a complaint of misconduct has been proved, the body making the determination must
be satisfied that it is more likely than not that the subject of the complaint committed the
act of misconduct alleged. That is what proving an allegation on the balance of probabilities
means. It is both a matter of common sense, as suggested by Mr O’Neill, and consistent
with the Scottish case law referred to by Mr Keen, that the burden of evidence required to
determine the issue to that standard depends on the circumstances of the case.
[17]
In paragraphs 33 to 35 of their Written Reasons the Disciplinary Tribunal set out in
clear terms their reasons for finding the complaint proved. They stated that they believed
Logan. Of much greater significance, however, are the fact that they also found him to be a
reliable witness, and that they gave cogent reasons for doing so. They explained that he
impressed them by the careful and measured manner in which he gave his evidence and by
the clear and unequivocal terms in which he recounted what had happened. They were also
favourably impressed by the consistency between his account of his immediate reaction and
his subsequent actions in reporting what was said on the one hand and the accounts of
these events given by the other witnesses and seen in the video evidence on the other.
Their view of the evidence of Logan contrasted rather starkly with their view of the evidence
of the appellant. Having made allowance for the impact of anxiety upon him, the Tribunal
were unable to accept him as either credible or reliable. They have explained that he gave
his evidence in a guarded and hesitant manner and that his evidence on the understanding
of the language that had been used was particularly unsatisfactory. Their impression was of
a witness giving a less than full account of his actual understanding of the language used.
Surprisingly, in leading the appellant’s evidence relating to his understanding of language,
his solicitor appears to have concentrated on his lack of understanding of the meaning of the
word “c***” which, it later emerged, he nevertheless knew to be a term of abuse. However,
he did acknowledge, as recorded at paragraph 28 of the Written Reasons, that he was aware
of the significance of using the adjective “black” in abuse directed at a black player. The
Tribunal regarded his version of events as “an inherently improbable account”.
[18]
Although a Bulgarian interpreter was present at the Disciplinary Tribunal hearing
and at the appeal hearing, the appellant gave his evidence in English before the Disciplinary
Tribunal. That was consistent with the submission made by Mr O’Donnell to the Disciplinary
Tribunal that the appellant spoke good English and would fully understand the proceedings.
In the end, as can be seen from the preceding paragraph, the Tribunal took account of the
evidence that was presented about the appellant’s comprehension of the language in issue.
[19]
Following their analysis of the competing accounts of events given by Logan and the
appellant, the Disciplinary Tribunal stated that they preferred the evidence of Logan and
introduced the remainder of their explanation of their determination with the word
“Accordingly”. The Appellate Tribunal do not consider that that formulation indicates that
the Disciplinary Tribunal simply formed a view on the credibility and reliability of the
evidence of Logan and took nothing else into account. It is plain throughout the record of
the evidence in the Written Reasons that the Disciplinary Tribunal had the nature and gravity
of the allegation in mind. Indeed in challenging the Tribunal’s specific reference to the
“seriousness of the offence” in explaining the sanction, Mr Keen’s submission was that the
misconduct alleged fell at the Lower End of the catalogue of possible contraventions of Rule
202. It is also clear from the Disciplinary Tribunal’s account of the cross-examination of
Logan that they proceeded on the basis that the appellant’s case was that Logan was
mistaken.
[20]
The Appellate Tribunal also consider that the Disciplinary Tribunal took account of
the other evidence in the case in an appropriate way as supportive of the credibility and
reliability of Logan. They specifically make reference to doing so following the use of the
word “Accordingly” in paragraph 35. His reaction at the time and the consistency between
his account of events in the immediate aftermath of the incident and other evidence in the
case were features that the Disciplinary Tribunal were entitled to regard as providing
support for the credibility and reliability of his account of the incident.
[21]
They had regard to the content of the evidence of both the appellant and Logan, the
impression each made on them, Logan’s reaction to the incident as observed by others, the
degree of consistency between Logan’s account of his reaction to the comment and his
subsequent action in reporting it and that of other witnesses and what the video clips
showed, and the nature of the incident. It is clear that the Disciplinary Tribunal took account
of all relevant evidence, and left out of account irrelevant considerations (such as the
weather conditions), in deciding whether the case had been made out on the balance of
probabilities and were particularly conscious that a determination of excessive misconduct
could only be made if that standard was satisfied. But in the end the crucial finding in the
case was the finding that Logan was not only a credible witness but more particularly that he
was also a reliable witness. Clear and entirely adequate reasons for making that finding and
for concluding on the balance of probabilities that the appellant committed the alleged
misconduct are set out in the Written Reasons. The Appellate Tribunal accordingly affirm
the determination of the Disciplinary Tribunal that the appellant used offensive, insulting
and abusive language of a racist nature in breach of Rule 202.
Decision on Sanction
[22]
The Appellate Tribunal read paragraph 37 of the Written Reasons as stating that the
racist nature of an abusive remark is, in the context of the whole catalogue of aggravating
factors listed in Rule 202, a significant aggravating factor. There is nothing in that paragraph
to suggest that the Disciplinary Tribunal were viewing the racist nature of the abuse as a yet
further aggravation of excessive misconduct which itself consisted of abuse already
aggravated by the racist nature of the remark. The sole issue in relation to sanction is,
therefore, whether the punishment imposed was excessive having regard to the misconduct
involved.
[23]
The appellant’s own statement in evidence that he would not use language of the
kind in issue and his acceptance that there is no place for racism in football are eloquent
testament to the seriousness of such an offence. In Scotland, as in countries throughout
Europe, domestic football is an international sport, played and coached by personnel from
all over the world. Racism in football is condemned worldwide and should be met with a
penalty that is designed to impose appropriate punishment and to deter the abuser and all
in the game from committing misconduct of this nature. Against that background the
Appellate Tribunal are in no doubt that the Disciplinary Tribunal were entitled to regard the
case as falling somewhere between Mid Range and Top End. In the event, and applying the
reduction of two weeks for mitigating circumstances, the sanction imposed fell into the Mid
Range. The Appellate Tribunal do not consider that to be excessive and affirm the decision
of the Disciplinary Tribunal to impose a seven match suspension.
Postscript
[24]
The Appellate Tribunal note that in accordance with normal practice the identities of
the Disciplinary Tribunal members remain confidential. However the Appellate Tribunal also
note that to date the terms of the Written Reasons of the Disciplinary Tribunal have
remained confidential. The Appellate Tribunal are not aware of any particular reason why
that should be so in this case. There has inevitably been ill-informed speculation about the
reasons for the Disciplinary Tribunal deciding to uphold the complaint and impose a sevenmatch suspension. Against that background the Appellate Tribunal consider that it would be
in the interests of the parties, in the interests of the wider football community, and in the
general public interest to publish this decision and the terms of the original Disciplinary
Tribunal decision, thus ensuring that any ensuing debate is well-informed. The Appellate
Tribunal, therefore, suggest to the SFA that they should exercise their discretion in terms of
paragraph 17.5.2 of the Judicial Panel Protocol to disclose both decisions and the reasons
therefor.
Iain Bonomy,
Chairman, Judicial Panel Appellate Tribunal,
16 December 2014