Seamus McCann, Co. Fermanagh, N. Ireland, 17 October 2003:

Peter, I feel obliged to put finger to keyboard on the above affair. 

The last two weeks have shown that football in general and the English FA in particular is still way behind most other sports in its willingness to tackle the problem of drug abuse in sport.  As was pointed out in the Guardian, the World Chess Federation is a signatory to the World Anti-Doping Agency's Code of Practice whereas FIFA is not.  It is as much this ambivalent attitude to the issue of drugs that leads people like Rio Ferdinand, Gordon Taylor, Man Utd and many of your contributors to believe that it is perfectly reasonable for Rio Ferdinand to go shopping while he should be taking a drugs test.  Sure many's the person forgets to tax their car.  And there's the problem.  While the failure to comply with drug testing procedures is put on the same level as forgetting to pack your daughter's lunch in her school bag then we can begin to understand the outrage from Ferdinand, Taylor et al. 

What we really have here is a failure to tell your neighbour that his house is on fire.  Ferdinand was informed twice that he would have to be tested after the training session.  In the space of less than two hours he "forgot" (unlike Messrs Giggs and Butt) that this was to take place.  He was allowed to go home (or shopping) and apparently was uncontactable until after the drug testers had left Carrington.  One wonders had his agent been trying to contact him to arrange a lucrative commercial endorsement would he have had as much interest in shopping for household goods? 

A lot has been said and written about the concept of fairness and the presumption of innocence.  But Ferdinand is not innocent.  He is guilty of a failure to comply with drug testing procedures and he has admitted his guilt, the only question is did he deliberately break the rules of was it simply absent-mindedness.  Absent-mindedness is not usually a water tight defence.  How then can we presume he is innocent?  Only Gordon Taylor can do this.  Taylor's media performances were nothing short of grotesque and can be summed up thus "PFA members, it doesn't matter what you do we'll back you all the way (particularly if you're in the wrong)".  Rio supporters may have a case in complaining as to how his punishment was meted out.  But the FA was between a rock and a hard place. 

Consider this scenario.  Ferdinand plays, England qualify, then today we hear the news that Rio Ferdinand admits committing a doping offence and that he, the PFA, the FA, and Manchester Utd all knew about it before the match.  Cue the Turkish FA, UEFA and FIFA down on the FA like a ton of used sample bottles...bye-bye Euro 2004?...possibly, lengthy ban for Ferdinand?.. almost certainly.  The only person in the clear would probably be Gordon Taylor. 

Response from PY:  

You put the case well for harsh discipline when a player has refused to take a drug test.  What you do not do is put the case well for the imposition of discipline without regard to fundamental fairness or due process, as it is called. 

It has nothing to do with the presumption of innocence.  It is true some who believe Ferdinand was treated unfairly have invoked that presumption, but they are incorrect.    As we pointed out in a comment piece we wrote last year about the Lee Bowyer-Jonathon Woodgate affair, the presumption of innocence has no application outside criminal proceedings and particularly not in administrative disciplinary proceedings.  You will not find a word about the presumption of innocence in any of our comments on the Ferdinand affair.

Due process entitles a player to 1.) advance notice of the conduct that is proscribed and the penalties for commission of that conduct, and 2.) a hearing before any of those penalties are imposed.  The F.A. violated both these principles of fairness in Ferdinand’s case.

These rights belong to the guilty as well as the innocent.  One of the reasons this is so is because the appropriate level of the discipline to be imposed hinges on the particular circumstances of the breach of rules.  In previous cases involving failure to take a drug test where the players offered a believable exculpatory reason, the F.A. imposed only a fine and did not even reveal the players’ identity.  On the other hand, if Ferdinand deliberately sought to avoid the drug test, a suspension would be in order.  But the facts must be developed at a hearing before punishment is imposed. 

Expediency is no ground for violating due process, and the courts have been unyielding on this.   Granted, the procedures need wholesale revision.  But that revision should be accomplished fairly.

If players treat drug tests cavalierly―and we are not sure they do; Ferdinand himself knew the seriousness of his failure, as evidenced by his frantic call to the F.A. in an effort to arrange another test that same day--that is because the F.A., through neglect, has allowed them to do so.  That the F.A. has been lax in the past is not sufficient reason to ignore principles of fairness in bringing in, virtually overnight, without any consultation with the players’ organisation and  without any advance warning, a new ex post facto disciplinary regime to deal retroactively with the offence of one Rio Ferdinand. 

It is not a cavalier attitude to drug testing which informs our outrage at the manner in which the F.A. treated Ferdinand, but solely the unfairness of the manner in which it proceeded against him.   And we believe the same is true of the England players and Gordon Taylor. 

Ferdinand should have been treated according to the rules that were in place at the time of his offence.  Why this most basic principle of decency and fairness is beyond the ken of the F.A. and most of the media and fans who have commented on the Ferdinand affair is mystifying.  If the rules need changing―and it appears they do―let it be done openly, with advance notice and warning to all affected.  Let it not be done overnight, in secrecy, without consultation and with retroactive effect.

Adherence to fairness sometimes carries a price, particularly if the rules in place are grossly inadequate to deal with the problem.  Civilised societies are willing to bear that price,  which sometimes involves looking bad, as in the purely hypothetical scenario you posit.   Even so, the F.A. had ample time to schedule and hold an expedited hearing before suspending Ferdinand from the Turkey match.  But it did not move on the matter until the week before the match, when it changed normal procedure and imposed a ban without a hearing for the first time in modern history.  Next time, we trust,  it will do much better.

The fact is that no one but the F.A. had any objection to Ferdinand playing against Turkey, and that includes UEFA and the Turkish Football Association, both of which said so days before the match.  The F.A. would not have paid any price for adhering to fundamental fairness in Ferdinand’s case. 

Gary Neville is right in at least one respect; the reason the F.A. acted so peremptorily in Rio’s case was to protect its image.  In our view, the F.A.’s willingness to sacrifice principles of fairness for the sake of its own image is disgraceful and in fact undermines that image.