In December 2018, Jose Mourinho’s departure from Manchester United made headlines across the world. However, a decision of the FA Regulatory Commission (“the Commission”) – published a matter of days previously – dismissing a charge of Misconduct in breach of FA Rule E3 brought against Mourinho by the FA (“the Charge”) on the basis of a ‘Legitimate Expectation’ defence is likely to have a significant impact on governance in the National Game in its own right. Ashley Cukier considers the ramifications of the decision.
Background to the Charge
On 6 October 2018, in a home game against Newcastle at Old Trafford, Manchester United recovered from a 2-0 deficit to win 3-2. Jose Mourinho, who had been the subject of considerable media criticism in the run-up to the match, left the field of play followed by broadcast cameras. The cameras captured Mourinho gesturing with a clenched fist, and muttering words under his breath. He subsequently glanced towards the camera, mouthing words (also inaudible) which, the Commission held, “would have struck the viewer as being mouthed in an angry or possibly aggressive manner”. It was subsequently established that the words used by Mourinho were the portuguese: “Vão levar no cu, filhos da puta”.
Whilst the literal meaning of the words used was largely agreed, there was a considerable issue between the parties as to their idiomatic meaning in context. This became the subject of differences of expert opinion, examined at an original hearing in front of a (differently constituted) Commission (“the Original Commission”) and subsequently at an FA Appeal Board hearing. There was, however, little doubt that the words used constitute swearing/the use of a profanity; in the euphemistic view of the Commission “an ordinary viewer would almost certainly have realised… that Mr Mourinho was not mouthing terms of endearment”.
The Regulatory Process
On 16 October 2018, the FA charged Mourinho with Misconduct in breach of FA Rule E3. Rule E3(1) provides:
The FA alleged that Mourinho, in the behaviour captured by the broadcast cameras after the final whistle, had been “abusive and/or insulting and/or improper”. It accordingly initiated proceedings under the Fast Track Regulations set out in Part E of the FA Disciplinary Regulations. Mourinho – represented throughout by Paul Gilroy QC (instructed by Centrefield LLP, Manchest United FC and the League Managers Association) – and denied the Charge.
The Charge was considered by the Original Commission on 31 October 2018. It made various findings of fact, inter alia preferring the opinion of Mourinho’s expert, that the contextual translation of the Portuguese words used by Mourinho at the end of the match was that of ‘fuck yeah’ or ‘hell yeah’, spoken in a celebratory manner. The Original Commission dismissed the Charge, holding that Mourinho’s behaviour did not constitute an abusive or insulting or improper act so as to breach FA Rule E3.
The FA appealed. The appeal, heard by an FA Appeal Board (chaired by Graeme McPherson QC) on 14 November 2018 allowed the appeal on what it called “a narrow ground”, namely that the Original Commission had incorrectly applied the ‘reasonable bystander’ test to the facts of the case (with which the FA Appeal Board was not going to interfere). Per paragraph 11 of the FA Appeal Board’s Written Reasons:
At paragraph 86 of its Written Reasons, the FA Appeal Board analysed the competing interpretations and idiomatic meaning attached to the words used by Mourinho. It took the view that the ‘reasonable bystander’ would have considered that the words were “abusive, insulting and improper” and allowed the appeal.
However, in doing so, the FA Appeal Board made clear that it considered it inappropriate to deal with the ‘Legitimate Expectation’ defence that Mourinho had maintained throughout the proceedings (and which the Original Commission had failed to address) – namely that, in charging him, the FA had departed from existing practice and that he was in effect being treated unfairly by the FA, who had on separate occasions made a practice of not charging Participants in the game for similar or equivalent behaviour. Instead, it remitted Mourinho’s Legitimate Expectation defence for consideration by a fresh Regulatory Commission, stating categorically (at para 85) that “nothing in this Decision and Written Reasons is intended to fetter how the fresh Regulatory Commission undertakes the task of determining the Legitimate Expectation Defence”.
The doctrine of Legitimate Expectation and its application to Sporting Bodies
In the context of FA Regulatory Commission decision-making under FA Rule E3, the Commission’s Written Reasons are thus notable – and unusual – for the detailed consideration necessarily given to the doctrine of Legitimate Expectation by the Commission.
Having established (and both parties accepting) that a sporting body such as the FA must abide by principles of public law, and that the doctrine of legitimate expectation (having originally developed in the field of administrative and public law) was capable of applying to the conduct of governing bodies of sports, the Commission (at paras 35-44) then summarised some of the relevant jurisprudence on Legitimate Expectation (including R v North and East Devon Ha, ex p Coughlan  QB 2013; R (on the application of Jefferies) v Secretary of State  EWHC 3239 (Admin)); and R (o/a Niazi) v Secretary of State for the Home Department  EWCA Civ 755).
As identified by Laws LJ in Niazi, the Commission noted, the “central feature” of legitimate expectation was “that of fundamental fairness in public administration”, namely that “a change of policy which would otherwise be legally unexceptional may be held to be unfair by reason of that authority’s prior action, or inaction”. In this regard, the Commission explained (at para 50): “the key question we must answer is whether it would be fair for the FA to proceed against Mr Mourinho if the same or similar behaviour had not previously resulted in disciplinary action”. This in turn depended on “there being a reasonable measure of clarity and consistency” in any practice governing the application of rules by a sporting body such as the FA, even where the FA as regulator “has a wide discretion in the application of its rules” (para 54).
The FA advanced a series of arguments to the Commission in response to Mourinho’s assertion of legitimate expectation.
First, it asserted that Mourinho did not rely on such practice as the FA may have had. This was dismissed by the Commission, citing the Jefferies case and Lord Hoffmann’s judgment in R (o/a Bancoult) v Secretary of State for Foreign & Commonwealth Affairs  UKHL, in which reliance was held to be “not essential” but, rather, a “relevant consideration” in the overall consideration of whether it is fair for a public body to depart from an existing practice or policy.
Second, the FA argued that the combination of Rule E 3(1) and the Fast Track Procedure itself had explicitly put Mourinho on notice that he might be charged for such conduct. The Commission disagreed, considering that neither went as far as to constitute proper notice.
Third, the FA sought to remind the Commission that it retained a broad discretion in respect of such matters. This was acknowledged by the Commission and was not controversial; the “real issue”, the Commission noted, was whether such approach was “proportionate and sensible” in the circumstances of the instant case.
Finally, and most significantly, the FA argued that it has “no clear and established policy” on matters falling under Rule E3, nor had it made any unequivocal undertaking or expression of that policy (such that could give rise to a legitimate expectation if departed from). The FA’s written submissions to the Commission set out the point more particularly:
“The FA’s approach is not to take action for swearing alone in respect of incidents that take place on or around the field of play and which might inadvertently be picked up by live broadcast cameras. Achieving absolute consistency with this approach, bearing in mind the sheer number of incidents and the myriad of circumstances in which it might be suggested the behaviour falls outside that which is tolerated, would be quite impossible for any decision-maker.”
This approach, which Leading Counsel for the FA argued could not properly be characterised as a ‘promise’ or a ‘policy’, or as an ‘unequivocal representation’ was further explained at paragraphs 19 to 20 of the FA’s written submissions to the Commission. The effect, the FA contended, was that its approach ordinarily left what happened on the pitch to the referee except in some exceptional cases such as in the use of discriminatory language. Otherwise, it explained “participants caught, inadvertently, on camera swearing on or around the field of play will not, ordinarily, find themselves the subject of retrospective action”. The FA however drew a distinction between such incidents and the separate category of “instances of swearing addressed into live broadcast cameras, to swearing at Match Officials and to Participants swearing at or gesturing towards crowds” in respect of which it is anticipated retrospective action would be taken.
The Commission had “no hesitation” in accepting that such an approach was a reasonable practice to follow. What remained in issue was “whether charging Mr Mourinho in the circumstances of the case is consistent with that practice or whether it represents a material departure from it”
Analysing the FA’s historic “approach” or “practice” in respect of Rule E3
Paragraphs 70-82 of the Written Reasons give only a glimpse into what appears to have been a thorough – and perhaps unprecedented in its context – in-hearing analysis of reels of video footage of the English Game, as both parties sought to establish what in fact the FA’s approach and practice, under E3(1) had been.
In its written submissions, the FA had said that its approach had been not to take action “for swearing alone” in respect of incidents “on or around the field of play which might be picked up by live broadcast cameras”. The Commission noted that such formulation on its own came
The FA therefore adduced other examples in order to substantiate its submission to the effect that it was acting in accordance with its usual approach when charging Mourinho. It identified two examples which, it submitted, were reasonably close to the behaviour of Mr Mourinho on the instant occasion, and which resulted in a charge. Both involved players swearing whilst beside the pitch after matches had ended. The first involved Wayne Rooney who, in April 2011, approached a broadcast camera at the end of the match and swore aggressively into it and used the “F” word. For that he was disciplined by way of a two match suspension. The second example involved Pontus Jansson, who was interviewed after a match in October 2018 and said that he felt “shit” and went on to be critical of the referee. For that he received a suspension of one match and a £1,000 fine.
The Commission held that the Pontus Jansson case bore “no material similarity” to that involving Mourinho not least because Jansson’s strong words, apart saying that he felt “shit”, “were directly critical of the referee”. The Rooney case could also be distinguished: in that instance Rooney sought out and deliberately and aggressively approached the camera, swearing into it using the “F” word audibly “in a manner that was consciously directed at least towards the viewers”. By contrast, the Original Commission had already found that in no sense were Mr Mourinho’s words, spoken under his breath, directed towards the camera nor did they (nor would the Commission) find that they were directed towards any particular person or people. It appears that the FA then adduced “a number of other examples of the application of its practice” to the Commission, none of which were deemed to provide a useful parallel with the case brought against Mourinho.
Conversely – and significantly – paras 80 and 81 of the Written Reasons record the fact that the Commission was shown footage by Mourinho’s lawyers of “very many instances in which the FA did not take action…in circumstances which some might regard as bas or, possibly far worse than those which arose here”. Indeed – and not without a hint of irony, the Commission noted (at para 81):
In fact, the video footage adduced on behalf of Mr Mourinho appears to have been more persuasive – and overwhelming. Per the Commission, at para 82:
It accordingly fell to the Commission to decide
The reader will doubtless note the choice language used by the Commission.
In the circumstances, it held that whereas the FA maintained a wide discretion, this discretion has been “unfairly exercised” in respect of Mourinho, constituting a “material departure from previous practice for which no good justification has been provided”. This was itself “a breach of his legitimate expectation that the disciplinary rules would be fairly and consistently applied”.
The Charge was dismissed, with the FA ordered to pay the costs of the Commission.
A decision with far-reaching ramifications for governance of the English Game
Whereas Mourinho’s departure from Manchester United unsurprisingly garnered worldwide headlines, the Decision of the Commission – released in the same week – is significant in its own right and is likely to have a serious impact upon the way in which the FA attempts to police the national game.
First, the Decision of the Commission states expressly – quite possibly for the first time in the context of FA Regulatory Commission proceedings, and almost certainly with the greatest degree of clarity seen in such context – the applicability of public law principles, including that of legitimate expectation, to the FA’s practices and procedures. The FA can now expect to have its previous practices and procedures analysed in detail for inconsistency, disproportionality and unfairness by respondents to charges brought by the FA under its Rules and Disciplinary Regulations. In the age of ‘VAR’, the FA now finds itself subject to a (perhaps unwanted) video review system of its own.
Second – absent changes to the current rules – the Decision provides what surely must now constitute a complete answer to a charge brought by the FA under Rule E3 for swearing and/or “abusive, insulting or improper” language, if such language is not directed at another and/or is not directed down the camera lens at viewers.
One must wonder whether this is what the FA had in mind when charging Mourinho. It is to be expected that, in light of the Decision, the FA will now wish to issue revised guidance to Participants in the game as to what conduct might or might not attract sanction. As the Commission noted, in its concluding remarks, “if the FA wishes to put players, managers and all other Participants on notice that in future it intends to treat words heard in such circumstances […] as a breach of the rules, then it could easily do so”. Whether such prospective guidance will suffice to obviate the consequences of historical decisions made by the FA remains to be seen – it may be that the FA will now deem wholesale changes to the Rules necessary in order to clarify its practices once and for all.
Ashley is a member of the Littleton Sports Law Group and advises regularly on football and other sporting matters. Littleton has particular expertise in sports law and is ranked as a leading sports law set. For enquiries, contact one of the clerks on 020 7797 8600 or firstname.lastname@example.org.