What sanctions can the FA impose for social media comments?

The first social media charge by the FA was brought in 2011 against former Liverpool FC player Ryan Babel in respect of comments he had posted on Twitter about a referee, Howard Webb. The FA’s essential information for players makes it clear that players are responsible for all comments posted on their social media, no matter how long ago the comments were posted and whether or not they knew that the words used could cause offence.

Players may face sanctions if anything posted by them on social media is deemed to be a breach of the FA rules. FA Rule E3.1 states “a Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour”.

FA Rule E3.2 states that a breach of Rule E3.1 is an “aggravated breach” if it includes a reference, whether expressed or implied, to ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability.

For more information on how a breach of FA Rule E3 is determined, click here.

Historical Posts

Players are responsible for all of their social media posts, including historic postings that they may not even remember are still on their account.

In 2016, Andre Gray was charged by the FA for 6 aggravated breaches of rule E3.1 in respect of comments posted on his Twitter account in 2012 and 2014. It was alleged that the tweets in question included reference to gender, colour and / or race, contrary to Rule E3.2. The 2012 tweets also included reference to sexual orientation, contrary to rule E3.2.

Mr Gray submitted that when the tweets were originally posted, they did not attract comment and were published to a small group of only 50 followers who were friends and family – it was the subsequent retweeting of the comments in 2016 that caused widespread circulation. However, this was not considered to be a mitigating factor by the FA’s Regulatory Commission (“the Commission”), which stated that “those who publish statements on the internet must be taken to knowingly run the risk that their comments may be read by a very large number of people”. In relation to Mr Gray’s submission that the tweets had been unearthed by someone intent upon finding anything that might conceivably sustain a charge, the Commission was of the view that “the motivation or standing of the person who reported the comments to the FA is nothing to the point”.

The Commission regarded the comments to be of a serious nature, given that they referenced a number of protected characteristics, and the length of time that they remained accessible to anyone who chose to search the internet. In considering the appropriate sanction, the Commission stated that it was concerned that Mr Gray had contested liability in respect of some of the comments to a full hearing, and that “the comments made in 2014 do not provide evidence of a significant improvement in [Mr Gray’s] insight nor do they show a more mature approach from that demonstrated in 2012”. Mr Gray was subsequently suspended for 4 matches, fined the sum of £25,000 and ordered to pay £2,000 as a contribution to the costs of the proceedings and attend a one-to-one education course.

Unintentionally Discriminatory and / or Offensive Posts

In December 2020, former Manchester United FC player Edinson Cavani was charged by the FA for an aggravated breach of FA Rule E3.1 in respect of a post on the player’s Instagram account in November 2020. Mr Cavani was born in Uruguay, is a native Spanish speaker, and did not know that a term used in his post could have offensive connotations. When Mr Cavani became aware that the post may be construed as offensive in England, he deleted the material and made a public apology on his Instagram account.

In the 2020/2021 season, a revised sanctioning regime was implemented (which is still in place to date), and this was the first case concerning a player that was decided pursuant to the new provisions. Appendix 1 of the FA’s Disciplinary Regulations provides that:

“A finding of an Aggravated Breach against a Player…will attract an immediate suspension of between 6 Matches and 12 Matches (“Sanction Range”).”

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“The lowest end of the Sanction Range (i.e. 6 Matches) shall operate as a standard minimum punishment (“the Standard Minimum”).”

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“A Regulatory Commission may impose an immediate suspension in excess of 12 Matches in circumstances where aggravating factors of significant number or weight are present.

Exceptions to the Standard Minimum

A Regulatory Commission may only consider imposing a suspension below the Standard Minimum where…the Regulatory Commission is satisfied that there was no genuine intent on the part of the Participant Charged to be discriminatory or offensive in any way and could not reasonably have known that any such offence would be caused.”

In accordance with the above regulations, the starting point for the Commission’s consideration was that this offence would ordinarily attract a suspension of between 6 to 12 matches. Whilst the Commission was satisfied that the post was not designed or intended to be racist or offensive, this was not sufficient in itself to depart from the Standard Minimum – the Commission also had to be satisfied that Mr Cavani could not reasonably have known that any such offence would be caused. In considering this, the Commission took into account the following factors:

1. Mr Cavani had only been in England for 2 months (having signed for Manchester United FC in October 2020), did not speak any English at the time of the charge, and had not previously lived in an English-speaking country. Therefore, the Commission could not infer that Mr Cavani had been sufficiently exposed to the language and culture of this country so as to allow him to have understood that words that were affectionate and unoffensive in his native language were unquestionably offensive in this country.
2. Mr Cavani had received no media training upon his arrival in England to assist him in understanding the cultural differences that might give rise to issues with a foreign player posting on a social media platform. The Commission commented that the lack of media training was surprising, given the player’s high profile in the game, his inability to speak English and that he was approaching 8 million Instagram followers.

The Commission concluded that Mr Cavani could not reasonably have known that offence would be caused by his post, and that it was right and proper to depart from the Standard Minimum suspension. Mr Cavani was suspended for 3 matches, fined the sum of £100,000 and ordered to attend a one-to-one education course.

Conclusions

Players are responsible for all of their social media posts – including “retweets” and “likes”. It is clear from the above cases that the Commission will hold players accountable for comments made on social media that are deemed to be a breach of the FA rules, no matter how long ago the comments were posted or whether they intended to cause offence.

The FA Rules apply to all Participants, which also includes clubs, club officials, managers, intermediaries, match officials and employees of clubs.

For advice on alleged breaches of the FA Rules and how to manage the disciplinary process, please contact Vikesh Navsaria, Senior Associate, at [email protected], or call us on 020 7632 4300.