By football lawyer, Daniel Geey @FootballLaw. (Not that it should matter in terms of the veracity of the points he makes in terms of the glaring inconsistencies in the FA’s report, but it’s only fair to note upfront that Daniel is Liverpool fan).

Further analysis of the media’s treatment of the case (and racism in general) can be found here: http://newsframes.wordpress.com/2012/01/06/media-on-racism-churnalism/ by @NewsFrames 

Background, Introduction and Points to Note

The aim of this article is to put myself in the position of the LFC lawyers and to dissect a number of the Independent Regulatory Commission’s Report (IRCR) conclusions, had LFC decided to appeal to the FA Appeals Board. Although no appeal is to be pursued it may be helpful to disentangle a number of evidential issues that arose throughout the judgment and that have been commented on in the press in the last week or so.

This is not intended to be a comprehensive description of what the IRCR said. In fact, only the most significant evidential, credibility and consistency aspects of the decision are discussed. It means there will certainly be aspects of the decision that are not touched upon, in part because the judgment is 115 pages long and in part because it is important to get across the most salient and relevant points that LFC may have relied upon. The aim is not to go into every detailed issue but predominantly to pick out a number of key points or omissions in the IRCR and highlight their importance.

The structure of this piece is to (1) briefly set out the basic claims of Patrice Evra and Luis Suarez, (2) describe the legal tests that were used, (3) assess the key IRCR reasoning and conclusions, (4) assess a particularly key IRCR omission, (5) highlight corroborating evidential issues, (6) discuss the inconsistencies the IRCR find with Suarez’s account, and (7) briefly discuss the procedural grounds of any appeal.

Points to note:

• All that follows is based on the public IRCR document and not on the entire body of witness evidence before the Commission. All that is stated below is premised on the precise facts as set out and relied upon in the IRCR.
• Due to the length of this piece, I do not discuss the appropriateness of the eight match sanction. A good appraisal of this can be found here ( http://afootballreport.com/post/15301344153/flaws-and-consequences-the-curious-case-of-luis-suarez.)
• The assessment does quote the exact phrases used by the IRCR and as such may not be suitable for anyone who is easily offended by the use of abusive language.
• In the absence of direct corroborating evidence to back up Evra’s claim, unfortunately no one, including the Commission could conclude that Suarez “definitely” said the things Evra claimed. As such, the Commission believed Suarez “probably” said them. This assessment is to do with the process of how the IRCR came to its conclusion.

The length of this article makes it appropriate to set out an executive summary.

Executive Summary

I believe LFC would have focused on:

1. the fact that Evra only made reference to the precise number of times he claimed Suarez called him a negro four days after the event and did not appear to tell anyone that the abuse happened more than once, points to a basic inconsistency in Evra’s account. As such Evra’s story changes when interviewed by Canal+ and in the FA interviews. I think LFC would question why he did not make any reference to the multiple abuses he subsequently claimed up until that point. This points to numerous inconsistencies in Evra’s account of what happened which goes directly towards his credibility as a witness as well as the underlying substantive nature of his claims;
2. a complete lack of any direct evidence corroborating Evra’s claims that he was abused more than the one time that Suarez admits to;
3. the inconsistencies in Suarez’s account of events not being as serious, substantive and detrimental to his credibility specifically in relation to differences in the accounts between Dirk Kuyt and Damien Comolli; and
4. new evidence that could have been submitted to the Appeals Board to strengthen Suarez’s credibility by clarifying inconsistencies relied upon by the Commission.

Standard and Burden of Proof

This is set out in detail in paragraph 31 where the Commission sets out “on the balance of probabilities, is the account of Mr Era true and reliable?” and paragraph 74 onwards [1]. In effect, the Commission were asking “whose account was more probable” (paragraph 345).

[1]  Burden of proof: “It is not for Mr Suarez to satisfy the Commission that he did not breach the Rules. Rather, it is for the FA to satisfy us to the required standard that Mr Suarez did breach the Rules.” Standard of proof: The applicable standard of proof shall be the flexible civil standard of the balance of probability. The more serious the allegation, taking into account the nature of the Misconduct alleged and the context of the case, the greater the burden of evidencerequired to prove the matter.”

The Basics and Contested Statements

Suarez admitted in his witness statement that in response to Evra saying in Spanish “Don’t touch me South American”, he (Suarez) replied using the phrase “Por que, negro?” (translated as “why, black?”). Suarez explained that the term negro was not intended to be offensive or racially offensive but in fact conciliatory. This is the only time Suarez states that he uses the word “negro”. Evra claims that Suarez used the word seven times in total (six additional times to that which Suarez admits to saying). Paragraph 388 sets out what the IRCR believes probably occurred:

“(1) In response to Mr Evra’s question “Concha de tu hermana, porque me diste in golpe” (“Fucking hell, why did you kick me”), Mr Suarez said “Porque tu eres negro” (“Because you are black”).

(2) In response to Mr Evra’s comment “Habla otra vez asi, te voy a dar una porrada” (“say it to me again, I’m going to punch you”), Mr Suarez said “No hablo con los negros” (“I don’t speak to blacks”).

(3) In response to Mr Evra’s comment “Ahora te voy a dar realmente una porrada” (“okay, now I think I’m going to punch you”), Mr Suarez said “Dale, negro, negro, negro” (“okay, blackie, blackie, blackie).

(4) When the referee blew his whistle to stop the corner being taken, Mr Suarez used the word “negro” to Mr Evra.

(5) After the referee had spoken to the players for a second time, and Mr Evra had said that he did not want Mr Suarez to touch him, Mr Suarez said “Por que, negro?”. 

The disparity between both accounts is stark. Suarez only admits to saying point 5 [with negro meaning ‘black’, not as in ‘a negro’] whilst Evra claims to have been racially abused six additional times. The rest of this assessment will establish how the IRCR concluded that based on the balance of probabilities test there was sufficient evidence to back Evra’s account of the events in part because of the inconsistencies in Suarez’s witness statement.

Evra’s post-match account inconsistency

I believe LFC would point to one overarching inconsistency that the IRCR completely failed to consider. Each step in the process needs to be discussed as it relates to the number of times Evra says Suarez called him a negro. As will be discussed below, Evra does not mention the fact that he was called a negro multiple times. At least nine people appear to confirm in witness statements that this is the case before he says to Canal+ that he was called negro more than 10 times. I believe LFC would argue as a general point before looking into the specific factors below that it would appear strange for Evra (who had purportedly been racially abused seven times) not to tell anyone it happened more than once until a press microphone appeared. Even then, he did not mention the specific instances of the claimed abuse and was inconsistent in the number of times the abuse occurred. It means that the first time Evra claimed and set out that he was abused multiple times by Suarez was at the earliest on the 20th of October in his first FA interview. Precisely four days after the match.

The circumstances begin when Evra states in paragraph 103 that “ref, he just called me a fucking black” (singular). The referee could not however corroborate that Evra said this. However, assuming he did, Evra only makes reference to Suarez “calling him a black” once. If this is a ‘one-off’ phrase because all the other accounts in relation to the abuse make reference to multiple abuse references, then Evra’s contention that there were multiple references to the word “negro” ought to be called into question. The point however is that, this account appears completely consistent with what all other Manchester United and referee/fourth official witness statements appear to say in the IRCR.

Next Evra tells Ryan Giggs that he has been called black (with again no reference to the number of times this occurred).  Giggs in paragraph 114 recounts that Evra said Suarez called him black (singular) and is silent about the number of times said. This suggests Evra did not tell him the number of times.

After coming into the dressing room at the end of the game Evra spoke to a number of United players. Antonio Valencia, Javier Hernandez, Nani and Anderson all provided witness statements and their evidence was accepted in full by LFC. All four players make similar claims that Suarez “would not talk to [Evra] because he was black”. There is no mention in any of the witness statements (as set out in the IRCR) of the number of times or the other types of context where Suarez allegedly abused Evra. In paragraph 125 of the IRCR Evra goes on to say that he also told other players that Suarez had said “I won’t talk to you because you are black” (single reference).

The IRCR raises no issues throughout their analysis about why Evra, after being called a negro numerous times, makes no reference of the fact to Giggs, his four teammates and the wider team in the dressing room.

Evra then tells Alex Ferguson in the dressing room that “Suarez called me a nigger” (single reference). Ferguson in his witness statement told the referee that “Evra has been called a nigger by one of the Liverpool players”. In paragraph 277 the IRCR noted that Ferguson “did not recall having said specifically that it was five times and thinks it unlikely he would have done so. Mr Evra did not mention… any specific number that he told Sir Alex at the time.”  Paragraph 130 clarifies that “Evra told the referee that Suarez called him a nigger” and paragraph 131 sets out in the referees witness statement that “Suarez had said to Evra “I don’t talk to you because you niggers”). There remains no reference to Suarez calling Evra a negro more than once.

The referee’s report sets out in paragraph 153 that when Mr Mariner (the referee) and the fourth official were discussing the issue with Evra and Ferguson, Evra stated Suarez said “I don’t talk to you because you niggers” (single reference).

Next Evra is interviewed on Canal+, which reveals a fundamental inconsistency that adversely affects Evra’s credibility generally. This is because he considers it appropriate to state something that according to the witness statement evidence, as set out in the IRCR, he has not stated to anyone else. He claimed he was abused by Suarez more than once. I believe LFC would be puzzled as to why he uses this opportunity to accuse Suarez of multiple abuses when he has had ample opportunity to voice his concerns to a whole raft of people, with it fresher in his mind, but did not.

I believe LFC would also challenge the “10+ times” inconsistency that was given three sentences worth of assessment (paragraph 281) by the IRCR. Specifically, the IRCR states that Comolli agreed with Evra’s contention that Suarez racially abusing more than ten times was a French ‘figure of speech’ when actually Comolli did not believe that was the case (paragraph 160). I consider LFC would argue strongly against the IRCR’s belief that “there is nothing in the Canal+ interview which materially undermines Evra’s evidence”. Based on the above, I believe LFC would argue that Evra’s account to Canal+ is inconsistent:

1. because it is inconsistent with what he has said (or rather not said) prior to giving the media interview; and
2. if he has been abused numerous times, he certainly needs to be more precise than 10+. LFC would also point out that the Commission came to the wrong conclusion that Comolli supported Evra’s “common figure of speech” explanation.

The only inconsistency in this chronology comes from Ray Haughan, the LFC administration manager who states that he heard Ferguson say “Suarez has called him.. a nigger five times” (paragraph 135). However, the witness statements of Evra, Ferguson, the referee and fourth official do not appear to mention the number of times of any claim. Ferguson explicitly states in paragraph 277 of the IRCR that he does not believe he mentioned the five times point. As such, a panel would on the balance of probabilities probably infer that such a comment was less likely to have occurred because of witness statements of the accusers who do not appear to mention this fact (as set out in the IRCR). This point would then rule out the corroboration conclusion used the IRCR at the end of paragraph 382.

Summary:  Evra claims to speak to the referee on the pitch, to Giggs on the pitch, to Valencia, Hernandez, Nani and Anderson in the changing room, to other United players and Ferguson in the changing room, to the referee and the fourth official in the referee’s room and at no time does he mention the crucial fact that he was abused more than once. He is actually consistent throughout in his single claim that Suarez said he would not talk to him because he was black.

I believe LFC would argue that all of the above is not just one inconsistency. Each time Evra does not make a reference to the number of times the word ‘negro’ was used undermines his later evidence. This makes his subsequent FA witness statements at odds with his statements at the precise time of the events. This is in fact highlighted in the IRCR when it states in paragraph 288 that at least in relation to the referee’s report:

“the referee’s report was made on the day of the match. It should, therefore, be given some weight as a contemporaneous record of what people were told had happened soon after the incident, rather than what they recalled at some later date.”

The Commission ignores its own directions to use the referee’s report as the basis for the number of times Evra said Suarez abused him. I believe LFC would argue that this would cast serious doubts as to the substantive nature of Evra’s claims and the consistency of Evra’s post-match explanations, and as such should lead to the conclusion that material inconsistencies appear in his account which severely damages his credibility.

Corroboration

As a general point which has been made on this site in a recent previous article, I believe LFC would stress, as they have done in their public statements, that Evra’s claims are not backed up with any direct corroborating evidence bar Suarez’s admission of using the word negro once.

The IRCR stresses in paragraphs 214 onwards, for example, that “this is not simply one person’s word against another” and that other evidence such as video footage, the evidence of others on the day and afterwards, documentation from the referee and the transcripts of interviews were all used. The LFC lawyer however stressed that the:

“…case turns very substantially on the evidence of the two main protagonists, that we should think very carefully before reaching a conclusion based solely on the word of the main protagonist for the FA, and that we should look at the other evidence, and see whether there is other evidence that corroborates Mr Evra’s story.”

I think that LFC would argue that the IRCR does not provide any direct corroborating evidence to back up Evra’s claims. Indeed, the IRCR states that in the absence of being able to identify such corroborating evidence they “asked [themselves] which account was more probable”. Based on the above arguments set out, I believe LFC’s aim would have been for the Appeal Board to significantly downgrade Evra’s credibility to demonstrate that his account was less probable.

Suarez Inconsistencies

If LFC had appealed the judgment, among other aspects of the IRCR, the club would have probably focused on at least three main grounds (there are of course others but these appear to be the most significant) that the IRCR used to discredit Suarez’s statements. The Commission believed that Suarez’s account of the incident was “flawed” and “profoundly undermined” the credibility of his evidence. LFC’s aim would be to rebuild Suarez’s credibility by attacking each one of the perceived Commission inconsistencies with the aim of showing that:

1. less weight should be attached to the conclusions reached in the IRCR; and/or
2. the conclusions reached by the Commission did not factor in, or at least discuss, other plausible alternatives.

Suarez and Comolli/Kuyt inconsistent recollections: Kuyt and Comolli provided witness statements based on their interactions with Suarez. Comolli spoke with Suarez in the aftermath of the Evra complaint being made and was the second LFC representative after Kenny Dalglish to speak to the referee about what Suarez had said in Spanish to him. In paragraph 290, he said that Suarez had said “porque tu es negro” and not what Suarez had said in his witness statement i.e. “por que, negro” [2]

In Kuyt’s witness statement, he explained how he spoke to Suarez in Dutch with the translation of their conversation recounting Suarez using the phrase “because you are black” (Paragraph 297). Both Kuyt and Comolli reference in their witness statements that something was ‘lost in translation’ in how the phrase was constructed. The question for the Commission to consider was whether this was a plausible explanation for two individuals who had spoken to Suarez about what was specifically said or whether this contradicted Suarez’s account.

LFC would have highlighted the below points to counter any perceived inconsistency:

• Comolli, who’s mother tongue is French, spoke to Suarez in Spanish, which he then had to retell to the referee in English. He even admits in his witness statement that “he assumed [Suarez] would have used the words”. Comolli may actually have been trying to make sense of Suarez’s statement to the referee rather than quote exactly what was said. This therefore, if anything, should not demonstrate the inconsistency of Suarez’s account but a problem with Comolli’s interpretation of what was said;
• It would be somewhat understandable if something got lost in the translation for Kuyt, having a conversation in Dutch with Suarez, about a specific and highly intricate Spanish phrase, and then trying to retell it in English through a witness statement; and
• That actually the IRCR ultimately backs Suarez account of the incident by setting out in paragraph 388 that “Mr Suarez said “Por que, negro?”. They believed Suarez did use that phrase and not the one that Comolli and Kuyt originally believed was said.

I believe LFC would highlight the fact that Suarez stayed consistent in what he claimed to have said to Evra, (por que, Negro?), yet because Kuyt and Comolli for differing reasons did not verify his precise Spanish phrase, this is held against Suarez as demonstrating inconsistency.

It would appear unfortunate that Spanish speaking players at LFC (Maxi, Lucas or Coates for example) were not asked to give witness statements to explain in Spanish what Suarez may have said to them. This could have given a more consistent and less likely to be ‘lost in translation’ approach. This is because the Spanish speaking players could have added additional precision to either back Suarez or give Kuyt and Comolli’s account further strength [3]

[2] The difference being as explained in the IRCR that “If Mr Suarez had said “Porque tu es negro”, then he would not be using “negro” as a noun to address Mr Evra, but as an adjective, meaning “Because you are black” paragraph 290.

[3]  This is discussed in the last section about new evidence to provide to an Appeals Board.

Acting in a conciliatory manner (paragraphs 253 onwards): For the one occasion that Suarez admitted to using the term “negro” he argued that it was said in a conciliatory context. The IRCR in paragraph 264 stated that “Suarez’s attitude and actions were the very antithesis of conciliation and friendliness”. The IRCR pointed to the video evidence demonstrating both players’ hostility “before, at the moment of, and after” Suarez’s admitted “negro” use. I believe LFC may have elaborated that:

1. within the bounds of how arguments play out there can be, and are, conciliatory moments used by those arguing to defuse acrimonious exchanges. LFC may have claimed that the IRCR’s perception that once an acrimonious exchange had begun, it remained acrimonious throughout is not so cut and dried. This would be of critical importance to Suarez and LFC because if this conciliatory approach was seen as more plausible, the context of Suarez using the word negro (based on the linguistic experts’ opinion) could have been viewed as non-abusive. The IRCR not only dismissed Suarez’s account of his conciliatory intention but used it to demonstrate that Suarez’s evidence was inconsistent and “simply, not credible”.
2. pictures and body language (without actual audible words) would have been difficult to demonstrate continued, complete and total hostility throughout the exchange. Without audible conversation evidence in the TV evidence, alternative scenarios to simple continuous hostility should have been explored by the IRCR. Indeed no body language experts were brought in to examine how the two players acted throughout the exchange. LFC may have considered using such experts to cast doubt over the IRCR insistence that the actions of the two players was only that of continued acrimony.

Pinching (paragraphs 245 onwards): Suarez stated in his witness statement that during the time of him pinching Evra he was trying to defuse the situation. Specifically:

“Evra did not back off and Dirk Kuyt was approaching us to stand between us. At this point I touched PE’s left arm in a pinching type of movement. This all happened very quickly. I was trying to defuse the situation and was trying to intimate to Evra that he was not untouchable by reference to his question about the foul. Under no circumstances was this action intended to be offensive and most certainly not racially offensive. It was not in any way a reference to the colour of PE’s skin.”

Under cross examination Suarez accepted that pinching was probably not defusing the situation.  The lawyer defending Suarez (Peter McCormick) put it down to “bad drafting” in the witness statement and furthermore admitted to the Commission in paragraph 250 that pinching was not the action of someone diffusing the situation. It appears Mr McCormick did not argue that it was not the actual pinch that Suarez’s witness statement was making explicit reference to when saying he was trying to defuse the situation with Evra. The IRCR inferred that this was a material inconsistency (in saying one thing but doing another) on the part of Suarez. I think LFC may have argued in any subsequent appeal that:

1. although the pinch may or may not be seen to rile or aggravate further, Suarez’s statement that he was trying to defuse the situation was more general in nature and was not in specific relation to the pinch; and/or
2. that the IRCR should not have inferred from his remark that this was anything close to a material inconsistency (albeit poor drafting on the part of the lawyer), when a number of apparent Evra inconsistencies are not addressed in any detail (e.g. Canal+ ten times issue above and Evra’s use of the word “nigger” being changed to “black”).

Inconsistency Summary: The reason these three issues are discussed in detail above is because the Commission uses these and other perceived inconsistencies to discredit Suarez’s account of what happened [4]. Specifically they make robust assessments that:

• “we find it remarkable that [Suarez] sought to advance a case that was so clearly inconsistent with any sensible appreciation of what happened” and
• “Mr Suarez’s evidence on these topics, which was shown to be flawed, profoundly undermined our confidence in the reliability of his evidence” (both in paragraph 357)

The way that the above inconsistencies can be countered by alternative arguments (with admittedly, varying degrees of strength) demonstrates that I believe LFC would have very strongly argued that such inconsistencies and conclusions were vastly overplayed by the IRCR in order to discredit Suarez and as a result favour Evra’s account.

^[4] There is one other relevant inconsistency issue relating to Suarez changing his account as to when he used the phrase negro, based on the video evidence he saw after he first made his FA interview statement. In the light of reports that Evra had up to three opportunities to see the video with the FA prior to making his statement, if true, should not therefore be used against Suarez as the basis for further IRCR conclusions of inconsistency.

Appeal Process

Whilst it has been reported that Suarez can only appeal against the level of the sanction and not the actual verdict [5] my initial reading of the FA Appeals Board Regulations is somewhat different [6]. Although the grounds for appeal may be deemed somewhat restrictive [7], regulation 3.3 states that among other things “The Appeal Board shall have power to: (1) allow or dismiss the appeal”. This would suggest that the Appeal Board could find in favour of an LFC appeal, thus rejecting the IRCR findings. Additionally, the regulations allow in exceptional circumstances for new information to be submitted. Such information could have included:

1. new language expert reports questioning the accuracy of Evra’s Spanish language claims [8] and body language experts to counter the continued hostility conclusion reached by the Commission;
2. evidence about Evra’s past credibility as a witness (which was not used by LFC’s lawyers as set out in paragraph 212);
3. witness statements of Maxi, Lucas or Coates as Spanish speaking players testifying about the exact phrase used by Suarez (if he spoke to them about it) to back up his version of what he admitted to saying and to reduce the Kuyt/Comolli IRCR inconsistency finding.

^[5] see http://www.guardian.co.uk/football/2011/dec/21/luis-suarez-liverpool-appeal-options

^[6] (see the document starting on page 425 “In the case of an appeal from a decision of a Regulatory Commission” http://www.thefa.com/thefa/~/media/Files/PDF/TheFA/FA%20Handbook%202010-11/FAHandbook-update-1011.ashx/FAHandbook-update-1011.pdf .

^[7] See regulation1.1.4-1.5  “The grounds of appeal, available to Participants and The Association, shall be that the body whose decision is appealed against: (1) misinterpreted or failed to comply with the rules or regulations relevant to its decision; and/or (2) came to a decision to which no reasonable such body could have come. 1.5 In addition: (1) Participants only, may appeal on the grounds that the penalty, award, order or sanction imposed is excessive;”

^[8] http://www.thisisanfield.com/2012/01/professor-in-hispanic-studies-dissects-the-fas-suarez-report/

Opinion, Speculation and Conclusion

LFC took under four days to consider a 115 page document and decide not to appeal. This suggests that not appealing was either a ‘policy decision’ taken from the top (in apparent conflict with the club’s previous vehement statements to the contrary) or tactical. It is a long shot to suggest however that LFC may not quite have exhausted their appeal grounds. This all depends on whether an appeal to the Court of Arbitration for Sport (CAS) is still a possibility. The rationale being that LFC may take the ban (only four of the games being in the Premier League) but would argue to CAS (perhaps on the grounds of a lack of independence through the FA choosing the panel) that the evidence used in the IRCR needs to be considered afresh in order to partly or completely exonerate Suarez. It would appear however that this is unlikely to happen because:

1. there are explicit prohibitions against going to CAS in relation to regulatory commission procedures (3.2. of the FA Disciplinary Procedures Appeals);
2. the CAS code states that the club should have exhausted all internal remedies (i.e. to go to the FA Appeals Board first) which it appears they have not; and
3. this would embroil the club in an additional regulatory action (something they were presumably keen to avoid when they came to the initial decision not to appeal).

Regardless of whether this may happen or not the above assessment illustrates potential examples of where LFC may have argued against aspects of the IRCR. Although this now appears impossible, the analysis may be useful in demonstrating why Evra’s evidence was perhaps not as watertight as previously thought and that Suarez’s lack of credibility as a witness may have been overplayed.

Thanks to Hal Cohen and my father David for checking the substantive points (though responsibility for all the assessments made above are mine).

Daniel Geey advises clients in the football industry. Such guidance has included advice on the Fit and Proper Person Test, ownership requirements, parachute payments and the football creditors rule, disclosure obligations under the relevant football authority’s rules, conflicts of interest and third party player ownership contracts. Daniel has also provided guidance on UEFA Financial Fair Play Regulations and how the rules may affect the future financial planning of football clubs. He has also given briefings and spoken at workshops and conferences on the interplay between Competition Law, Football and Broadcasting.

Daniel also edits a football law publication called On The Ball which can be accessed here and has a personal website called www.danielgeey.com where you can access for free all his published football law articles. Follow Daniel on twitter at www.twitter.com/footballlaw