Peter Young
18 November 2003
England Football Online
Contact Us Page Last Updated 19 November 2003
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Comment: Banning the Uncharged

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The F.A. Went Too Far in Sending Home Alan Smith

See also:

Football Shirked its Responsibility in the Bowyer/Woodgate Affair
The F.A. must make its own determinations when footballers are charged with crime

Rush to Judgment:  The Rio Ferdinand Affair
The Football Association’s Shoddy Conduct Shows It at Its Bumbling Worst 

The Aftermath of the Rio Ferdinand Affair
The Football Community’s Response is Not Promising  

The Rio Ferdinand Affair - Time to Move on?
Yes, but the Football Association and Mark Palios Must Take Some Lessons With Them

The Rio Ferdinand Affair:  An Exchange with a Reader

Palios’ Bureaucratic Bungling Must Stop
The Palios-Led  Football Association is Unfit to Run the National Team


Last year, following the disposition of criminal charges against former Leeds United players Lee Bowyer and Jonathan Woodgate, we addressed what the F.A. should do when criminal charges are pending against footballers, when footballers are acquitted of criminal charges and when footballers are convicted of criminal charges.  We did not address the question the Alan Smith case presents:  what should be done when footballers are under criminal investigation but no criminal charges have yet been brought.

We did not do so because the Bowyer/Woodgate case did not present that question, but also because it never dawned on us that the F.A. would impose a ban on a player for alleged criminal conduct even before criminal charges are brought.  We thought our view that the F.A. would never go that far was confirmed when Manchester United's Nicky Butt was allowed to play for England earlier this year although he was under investigation for criminal assault.  Charges were never brought against Butt, and the matter was forgotten until Smith was banned because criminal assault charges might be brought against him for tossing a plastic bottle back into the crowd.  

In the meantime, however, the F.A. banned Ferdinand in the absence of a formal F.A. charge because he was under F.A. investigation for failing to take a drug test.  The writing was on the wall, and in the wake of Smith's ban, the F.A. claims the pending criminal investigation against Butt had escaped its notice when he was allowed to take his place in an England squad.

We think the F.A. has no business banning players before criminal charges are brought unless it conducts its own investigation and satisfies itself there is probable cause to believe the player is guilty and unless it affords the player the opportunity to clear his name at a hearing.  

A formal criminal charge carries built-in credibility because it represents the judgment of duly appointed law enforcement officials that there is probable cause to believe the accused is guilty of the charge.  A complaint about a player's conduct which has not yet resulted in a formal criminal charge carries no such credibility.  

Moreover, complaints from the public against footballers which are under law enforcement investigation are peculiarly likely to be unfounded.  First, footballers, because of their fame, are peculiarly likely to be subjected to false accusation.  Second, because of the media attention footballers attract in every part of their lives, the police are much more likely to protect their own reputation by opening a criminal investigation against footballers in circumstances which would prompt no police action at all were the accused not cursed with fame.  Such may be the case with Alan Smith, whose conduct was a minor affront at worst and hardly the stuff of which criminal prosecutions are made.

Hence the F.A. should not  impose a ban automatically whenever a criminal investigation is opened against a footballer.  If the offence under investigation is serious--involving,  for example, violence resulting in injury--the F.A. may feel it has to act prior to a  formal criminal charge.  In that case, it should conduct its own investigation, and if it is satisfied there is  probable cause to believe the player is guilty of such a serious offence, it should order the player to show cause at a hearing why he should not be banned.  That course both protects football's integrity and reputation and affords fairness to the player involved.  It is, in fact, the same course we believe should be followed when formal charges are brought against footballers.

We wonder what the F.A.'s response will be the next time an England player is arrested abroad, as Bobby Moore was on trumped-up theft allegations in Colombia during England's final preparations for World Cup 1970 in Mexico.  If the F.A. automatically suspends such a player, it becomes an easy matter to get rid of one or more key England players as a big tournament approaches.  If the F.A. disregards the foreign arrest--while at the same time following a policy of automatically suspending players arrested in the U.K.--it insults the foreign country's criminal justice system and risks setting off a diplomatic furore.  Best avoid that nasty scenario and do what is right in all cases, wherever they originate--conduct an F.A. investigation if the alleged crime is serious enough and, if it is believed suspension is warranted, give the player a chance to clear his name at a hearing before the suspension is imposed.


As we expected, the criminal case against Alan Smith has been dropped, the Crown Prosecution Service advising the police that bringing formal charges was not in the public interest.  The Football Association has responded by launching its own investigation into Smith's conduct.

There lies one of the problems of imposing bans before any charges are brought, indeed, of imposing any kind of punishment before a hearing is conducted.  Undeniably the F.A. will now be under considerable pressure to justify itself--to justify the ban it already has imposed on Smith without charge and without hearing.  Otherwise, it will look foolish, having ruled out Smith from the Denmark match without cause, having made much ado about nothing.  Given this pressure, Smith can hardly expect to receive from the F.A. the impartial review of the case to which he is entitled.  

This is one of the dangers of acting peremptorily without any deference to fair play.  Unfairness is compounded by further unfairness to avoid the appearance of unfairness.  Surely the F.A. should be more concerned with treating its constituents--the players--in a fair manner throughout.  Every time it acts unfairly, as it did in this case, it also denigrates its own reputation.   We suggest it now assign the Smith case to an independent adjudicator who has no vested interest in justifying actions already taken.