What is the Standard of Proof in FA Disciplinary Proceedings?

The standard of proof is the degree to which a party is required to prove its case in order to succeed. In accordance with Part A, Regulation 8 of the FA Disciplinary Regulations, the standard of proof in disciplinary proceedings is the civil standard of the balance of probabilities. The meaning and application of this standard of proof was considered in the recent written decision of the Appeal Board regarding unproved charges brought against Watford FC player, Imran Louza.

What charges were brought against Mr Louza?

During a match between Watford FC and Swansea City AFC on 5 October 2022, Mr Louza received a yellow card following a foul on an opposition player, Ryan Manning. Shortly afterwards, during a stoppage in play, Mr Manning deliberately barged into Mr Louza, causing the two players to engage further. Mr Manning then immediately ran to the referee and accused Mr Louza of spitting at him.

Mr Louza was charged on 10 October 2022 with a breach of FA Rule E1.1, which provides that action may be taken against a Participant in respect of Misconduct arising out of a breach of the Laws of the Game. Law 12 of the FIFA Laws of the Game states that spitting at an opponent is a sending off offence.

What did the Independent Regulatory Commission decide?

Video evidence of the incident was presented to the Independent Regulatory Commission (“Commission”). The footage did not show any actual spitting by Mr Louza, but it did show that, at the point Mr Manning was allegedly spat at, there was no instant reaction of repulsion or shock. The Commission found the absence of such a reaction surprising and potentially supportive of Mr Louza’s case that Mr Manning was seeking a way of getting him dismissed following the earlier foul. The Commission considered that this conclusion was fortified by the footage showing that Mr Manning unnecessarily instigated the physical coming together of the two players. However, the Commission acknowledged that it was possible that Mr Louza may have inadvertently spat at Mr Manning during their verbal exchange.

Both parties agreed that the standard of proof to be applied was the “flexible civil standard” of the balance of probabilities. Mr Louza submitted (and the FA did not disagree) that the correct approach is as set out by Lord Dyson in The FA v Peter Beardsley: “the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. In our view, this flexibility is reflected in the language of Regulation 24. The words “clear and convincing evidence” serve the purpose of requiring evidence to have that quality before the presumption is rebutted on the balance of probabilities”. The Commission therefore stated that there had to be “clear, cogent and convincing evidence” presented before the charge could be considered to be proven.

Ultimately, the Commission was of the view that this was one person’s word against another’s, and there was no independent or corroborative evidence to assist on the competing cases. The Commission decided that the evidence was not sufficiently compelling to conclude that the FA had discharged its burden of proving the case.

What were the FA’s grounds of appeal?

The FA appealed the Commission’s decision on the basis that it “erred in law and misinterpreted or failed to comply with the FA Rules or regulations by implying an incorrect test for the standard of proof of the balance of probabilities and for the quality evidence necessary to establish breach by [Mr Louza]”.

The FA submitted that the seriousness and consequences of an allegation did not affect the standard of proof. The FA argued that the Commission was mistaken in saying that there must be “clear, cogent and convincing evidence presented” by the FA to prove the charge. Further, the FA submitted that by saying “this is a particularly serious allegation and this the strength of the evidence to satisfy the charge is at a much higher threshold”, the Commission adopted a higher standard of proof than the balance of probabilities or required more cogent evidence based upon the seriousness of the allegation.

What did the Appeal Board decide?

The Appeal Board stated in its written decision that “the balance of probabilities is simply whether it is more likely than not that some fact in issue occurred. That civil standard does not vary irrespective of the seriousness of the allegations or the consequences of those allegations being accepted. Talk of a “heightened standard” is simply wrong: the standard neither gains height nor loses height”.

The Appeal Board noted that not only did the FA not take issue with Mr Louza’s submissions in relation to the standard of proof (as above), but it also stated in its reply to Mr Louza’s response to the charge that it had “provided cogent and compelling evidence in this matter that clearly satisfies the requisite burden”. The Appeal Board concluded that the Commission adopted the wording used by the parties and the reference to a “higher threshold” in the Commission’s decision was said by the Appeal Board to have flowed from the description of the standard of proof agreed by both parties.

The Appeal Board’s written decision states that the Commission’s reference to a “higher threshold” was not the same as a “higher standard of proof” but was a reference to the evidence that was required to overcome the improbability of the alleged conduct. The Appeal Board suggested that it may be better if future commissions did not use expressions such as “higher threshold”, but rather identified that they were taking into account the improbability in their overall assessment of the evidence.

The appeal was dismissed and the FA was ordered to pay the costs of the Appeal Board.

How can we help you?

If you need assistance in managing the FA’s disciplinary process, please contact Vikesh Navsaria, Senior Associate, at [email protected]. Alternatively, you can call us on 020 7632 4300 or make an enquiry.