Beardsley Suspended in FA Ruling

An FA Regulatory Commission, chaired by Lord Dyson, handed down its decision in the case brought against Mr Peter Beardsley, former high-profile England and Newcastle player and coach on 18 September 2019. Mr Beardsley had been charged with misconduct for three aggravated breaches of FA Rule E3 (as defined by E3(1) read with (2)). It was alleged that he had used language, which was abusive and/or insulting on three occasions:

1. At an under 23 event at Go Ape, stating "you should be used to that" to one or more players of black African origin;
2. Questioning the legitimacy of the age of one or more players of black African origin; and,
3. Referring to a player as a "monkey".

It was further alleged that his conduct brought the game into disrepute contrary to FA Rule E3(1). The Commission upheld all three charges for the reasons provided here. The Panel observed that whilst Mr Beardsley is a "towering figure in football and his footballing reputation is beyond question… he made remarks which were obviously racist and were wholly unacceptable." After considering various aggravating and mitigating factors, the Panel decided to suspend Mr Beardsley from all football and football related activity for 32 weeks from 18 September 2019 (as well as ordering him to attend a FA education course and to pay the costs of the Regulatory Commission).

The decision also raised an interesting question regarding the interpretation of Regulations 23 and 24 of the FA's Disciplinary Regulations, which provide that:

23. The fact that a Participant is liable to face or has pending any other criminal, civil, disciplinary or regulatory proceedings (whether public or private in nature) in relation to the same matter shall not prevent or fetter The Association conducting proceedings under the Rules.
24. The result of those proceedings and findings upon which such result is based shall be presumed to be correct and true unless it is shown, by clear and convincing evidence, that this is not the case

The regulations were relevant to the proceedings, because the managing director of the Club (Mr Charnley) had held a disciplinary meeting to consider the allegations. In a reasoned decision, following consideration of oral and written evidence, Mr Charnley found (inter alia) the allegations before the Commission were proved. The Commission determined that, "It is clear on the face of the regulation that the three charges that Mr Beardsley faces in the current proceedings are proved unless he shows by clear and convincing evidence that the result reached by Mr Charnley and his findings are not correct and true." It was not in dispute that the burden of rebutting the presumption was on Mr Beardsley. There was, however, a disagreement as to the standard of proof, particularly whether it should be the balance of probabilities or a higher standard. Ultimately, the decision did not turn on the standard of proof, but Lord Dyson had ruled, on an earlier date, in favour of Mr Beardsley on that issue:

• "In doing so, he accepted the submissions advanced by Mr De Marco. The civil standard of the balance of probabilities is applied flexibly: see, for example R (N) v Mental Health Review Tribunal (Northern Regions) and Others [2006] QB 468 at paras 62 to 64. Thus as Richards LJ said at para 62, 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. These are ordinary words. If we are not persuaded that the evidence relied on by Mr Beardsley is clear and convincing, then he will not have rebutted the presumption on the balance of probabilities."

The Panel further observed that any flaws in the Club's disciplinary process were insufficient to rebut the presumption in Regulation 24, rather the "findings of the Club are presumed to be correct unless it is shown by clear and convincing evidence that this is not the case." This, the Panel concluded, was clearly a reference to evidence that is placed before the FA Commission. The Panel was not hearing an appeal from or conducting a review of the Club's decision.

This blog has been written by Stephanie David.