By Daniel Geey and Kieran Bennett
West Ham United’s Andy Carroll was sent off by referee Howard Webb in the 59th minute against Swansea City on 1st February after appearing to swing an arm at Swansea’s defender Chico Flores. This blog briefly explains the novel avenue that West Ham took to appeal against the red card and the three game ban once the initial FA panel had dismissed West Ham’s case.
West Ham challenged the wrongful dismissal charge before the FA’s Independent Regulatory Commission (IRC). A three-man IRC rejected the claim of wrongful dismissal by a margin of 2-1, ruling that no “obvious error” had been made by Howard Webb. FA Disciplinary Procedures regulation A5 (I) states that there are no further grounds for appeal. As such, the only other option available to West Ham was to be found in the FA Rule K1 (d) arbitration provision. The rule is set out as follows:
“Rule K1(a) shall not operate to provide an appeal against the decision of a Regulatory Commission or an Appeal Board under the Rules and shall operate only as the forum and procedure for a challenge to the validity of such decision under English law on the grounds of ultra vires (including error of law), irrationality or procedural unfairness, with the Tribunal exercising a supervisory jurisdiction.”
As such the arbitration that West Ham brought could only determine whether as West Ham believed there was an error of law (the IRC had applied the wrong test) and procedural unfairness (the IRC had not held an oral hearing).
It is important to stress that the arbitration:
1. could not examine the merits of the initial IRC majority decision and as such was not a ‘full merits’ appeal; and
2. that took place on the Friday before the Saturday West Ham game against Aston Villa was to decide whether to suspend the three match ban until a final decision of the full Arbitration Tribunal could be made (i.e. this was an interim application).
The test that the sole Arbitrator (Nicholas Stewart QC) used to decide whether to suspend the three match ban was whether the club had any serious prospect of success before the full three man Tribunal i.e. if there was no serious prospect of persuading the full arbitration that the initial IRC decision was invalid, then the single Arbitrator would dismiss West Ham’s application.
The single Arbitrator decided that there was no serious prospect of persuading the full Tribunal that the initial decision was invalid. In rejecting West Ham’s grounds of appeal, the following points were made:
1. Error of law: The club claimed that the wrong test was applied when making the decision. Specifically, they argued that there was no mention of ‘obvious error’ in the rule itself within Section A of the FA’s Disciplinary Procedures. Although the Arbitrator did note that the ‘obvious error’ test was not expressly mentioned as the test to be used by the IRC, the IRC had concluded that the player had struck out intentionally which “was the essential point on whether the dismissal was wrongful or not”. Even though the Arbitrator asked for the obvious error test to be clarified for future cases, he believed the IRC used a ‘lower threshold’ and was clear that the “referee was right and not merely that he was not obviously wrong”.
2. Procedural unfairness: There had not been an oral hearing at which the player could have given oral evidence. It was argued that it was only by hearing and testing that evidence orally that the IRC could fairly reach a conclusion on the matter. The Arbitrator believed that although there may be cases where a lack of an oral hearing “may amount to procedural unfairness invalidating the decision, this is nowhere near such a case” primarily because the matter involved one player being banned for three matches. In addition, the Arbitrator did not see “any serious likelihood that the oral evidence from the player would have affected” the IRC decision. The DVD evidence was more likely to form the basis for the ultimate IRC decision.
Clubs may believe that there is now an additional appeal avenue possible for wrongful dismissal decisions for on-field straight red card offences. The current state of play is that arbitration under FA Rule K cannot look at the merits of an initial IRC decision but will only investigate into whether the decision taken was an error of law, irrational or procedurally unfair. This limited the scope of West Ham’s subsequent appeal.
The pressing issues for the FA will now be to redraft their rules to expressly include the correct test (obvious error) that the IRC needs to apply for wrongful dismissal cases.