Our long-standing legal partner, Foot Anstey has sent us some information as to what is likely to happen if we don’t get our Pitch Protection Plans right.
Today, EFL and VNL clubs involved in the divisional play-offs will hold a webinar to discuss this important issue, and Nathan’s views should be read in conjunction with the webinar content.
You will recall that Foot Anstey were recipients of the inaugural FSOA Service Excellence Award in 2024
Some thoughts on responding to FA investigations.
Introduction
At the November FSOA conference a question was asked about best practice when responding to FA investigations and/or formal FA regulatory charges. I agreed with Peter Houghton we would summarise our thoughts based on our experiences supporting Clubs respond on receipt of an FA investigation letter and/or formal charges. This is reinforced by the themes we have seen in recent FA Independent Commission written reasons in other cases.
Incidents this relates to
We are concerned here with failure to control fan behaviour (dealt with in FA Rule E21) which broadly covers pitch invasions, pyrotechnics, projectiles, and abusive and insulting behaviour.
What are the factors Clubs need to be trying to manage?
Let’s start with the end game. If charged by the FA, the Regulatory Commission will consider 4 factors when deciding on the level of fine. For premiership clubs fines are often in the hundreds of thousands of pounds whilst clubs in the EFL Championship and Leagues 1 & 2 are more likely to receive a fine measured in tens of thousands of pounds.
Clubs need to be thinking about what they can say in relation to all 4 areas from the outset. This is to lay the foundations to argue that no charge is merited. Or, if charged, to ensure the penalty is as low as possible.
Here are the 4 factors:
- Seriousness – how far short did the club fall of the standards the FA would expect of clubs managing the risk of this sort of incident?
- Culpability – was the Club reckless or careless, negligent, or did it only just fall short of establishing a due diligence defence.
- Harm – this doesn’t just include actual harm but considers the risk of harm (1,000 fans on a pitch could easily cause real harm to players and officials for example). The Commission is also concerned when assessing harm with the general reputation of football and of incidents leading to “copycat” behaviour by fans.
- Mitigation – all the good things that the Club did before AND after the incident to prepare for and mitigate the risk of the offence happening and steps taken to avoid it happening again in the future.
The actions we suggest below help support arguments relating to all 4 factors.
Common themes in FA disciplinary commission decisions. (‘We take this very seriously’).
Every response to a FA investigation or FA charge says that the Club takes its responsibilities very seriously. Many add that the incident was an isolated one or was unavoidable. However, the Commission regularly comments that the evidence doesn’t match the claims of seriousness and often there are numerous gaps in the evidence they would expect to see from a club that really is taking things seriously.
In those circumstances, The FA Commission may choose to draw its own conclusions from the gaps. This can be particularly damaging for a Club if they have opted for a paper hearing where they don’t have the opportunity to respond to the Commission panel’s questions about the gaps during the hearing.
In the right case there is merit in considering acknowledging that there were gaps and that lessons have been learned. This is even more compelling if gaps are acknowledged and “lessons learned” are in place before the FA write to the Club. Contemporaneous, proactive and positive responses carry much more weight than those that appear to have been prompted by a FA investigation or charge.
Evidence that the FA Commission expects to see.
- Risk assessments. Specifically, assessments that consider the risks of the particular fixture – they should be bespoke and match specific. The FA and the Commission regularly spot evidence that suggests risk assessments are a copy and paste from an earlier game (dates and names haven’t been changed, previous “history” with the opposition isn’t referenced etc.) Anything that suggests that thought hasn’t been applied to this fixture is particularly unhelpful. This can be the case if the risk assessment is in fact bespoke but on the face of it, it doesn’t look like it.
- A steward plan – what is the explanation for that number of stewards and where they were positioned? Were extra recruited for this fixture in recognition of identified risks? Are the stewards sufficiently trained and competent? To support the plan evidence should be provided of the contents of steward briefings:
- Evidence of what was said.
- Evidence of who attended.
- Evidence each steward attended, acknowledged receipt, and understanding.
- (We recognise this can be a tough ask to deliver every game, but without it, your case is weaker).
- Liaison with opponents, Police (request for SPS), and fan groups. With key points documented contemporaneously.
- If a risk of incursion is identified detail how that is to be dealt with.
- Tabletop exercises and physical run throughs that incorporate learning from previous events are very compelling.
- Plans to protect high risk groups identified.
- Stadium plans
- Club sanctions policy
- Evidence of communications with fans
- Stadium announcements
- Posters and programs
- Advertisements
- Social media messaging
Post incident
As soon as there is any suggestion of an incident e.g. abusive chanting or an incursion, a post-match review should be undertaken. An independent FA regulatory commission will expect to see outputs that include:
- Evidence of a de-brief including interviews with stewards, control room staff etc.
- Have these been used to document what went well, what could have gone better and what lessons have been learned?
- If these learnings are taken into the next match risk assessment and steward briefings (irrespective of any FA investigation) this will carry significant weight, possibly with the FA, certainly with an independent disciplinary commission.
- Public condemnation of the incident including reiteration of the Clubs approach, a reminder of the criminal nature of the activity and of the Club Sanctions Policy.
- Evidence that the CCTV has been reviewed.
- The perpetrators have been identified and/or appeals gone out on social media for perpetrators to be identified.
- Perpetrators who have been identified are reported to the Police and banned in line with the published Club Sanctions Policy.
- Apology to the visiting club if appropriate (e.g. players, staff, physios, directors subject to abuse).
Responding to an FA letter investigating the incident.
This is the opportunity to persuade the FA that a) you have done as much as possible so have a defence that all Due Diligence was exercised to control the fan behaviour complained of or (if that fails) b) sets out your defence (or more usually) mitigation on paper as a dress rehearsal for the Commission hearing.
It is important to note that a Due Diligence defence is difficult, but not an impossible argument to run. If you have any gaps in the evidence referred to above, the backstop is to firmly evidence that you are not only taking it seriously, but you have put in place preventative measures and/or have identified what could have been done better and learned lessons. This may sound like you are making the case for the FA. However, as mentioned above, the FA will fill in the gaps themselves if you do not explain them. This is the opportunity to suggest that you are a responsible Club, you have taken all appropriate measures and/or learnt for next time by reference to as much of the above as possible.
The hearing
If the FA do charge then the question arises how to best present your case to the Independent FA Commission which will usually include a senior barrister (Kings Counsel) supported by subject matter experts – this might for example be an ex-silver commander who knows how operations work (or don’t) from years spent in the matchday control room. The default, in my view, is to invest in a personal hearing unless there are good reasons not to. Cost is not one of them, you will likely save as much as you spend and lower fines in this hearing will also help in the event of future charges.
In the eyes of many Commission members, it is a contradiction to say that the Club is taking the charge seriously if it doesn’t attend the hearing. Investing the time to attend enables the advocate you instruct to say that the presence of senior club officials is testimony to how seriously the club takes the matter.
It also means that you can avoid the Commission filling in gaps because the Club are not there to answer their questions. This is not only relevant to the operational aspects but also the financial. The Commission is not unsympathetic to the financial plight of clubs, particularly outside the Premier League, but accounts don’t always tell the whole story and can have line entries that do not fully explain what they mean. Personal attendance enables any questions about the accounts and finances to be answered.
It will be a judgement call in each case whether to attend in person, taking into account what you can and cannot say and how strong your witnesses may be in a tribunal environment. But is clear from reading previous written reasons from the independent panels that if you can put up witnesses that are knowledgeable and impressive this can persuade the Commission that a significant penalty is not warranted.
Free sense check
If you are faced with dealing with the aftermath of an issue (whether pre-FA letter or post) we offer a free 30-minute sounding board for you to talk through your approach. Please contact Nathan Peacey at nathan.peacey@footanstey.com
