Mourinho: an unfair target?

José Mourinho, now the former Manchester United manager, has certainly been in the spotlight over the last couple of days. Amidst the media furore, anyone with a keen interest in sports law might have noticed that a rather fascinating development has emerged: a legitimate expectation defence in the context of The FA's regulatory action.

On 16 October 2018, The FA had charged Mr Mourinho with misconduct in breach of FA Rule E3, following a match between Manchester United and Newcastle United at Old Trafford on 6 October 2018. Newcastle took the lead and then Manchester recovered to win 3-2. As Mr Mourinho left the field of play, he was followed by broadcast cameras and was caught inaudibly swearing in Portuguese.

There was some debate as to the idiomatic meaning of the words mouthed. On 31 October 2018, a regulatory commission determined, however, that The FA had not proven their case. The decision was appealed, and on 14 November 2018, the appeal board took the view that the reasonable bystander would have considered the words "abusive, insulting (and) improper." Mr Mourinho's legitimate expectation defence that swearing alone would not be considered or charged by The FA as a breach of FA Rule E3 was remitted to a fresh regulatory panel for determination.

The fresh panel was bound by the original findings of fact, including that Mr Mourinho glanced briefly towards a camera before uttering the same or similar words again. The burden was on Mr Mourinho to establish a legitimate expectation. The panel considered three questions:

1. Did The FA have an existing practice, policy or approach as to what conduct would be the subject of a charge and what would not?
2. When acting as he did on 6 October 2018, was Mr Mourinho aware, at least in general terms, of that practice?
3. Was charging him in the circumstances of this case a departure from that practice?

The panel determined that The FA's practice had been not to take action for swearing alone in respect of incidents on or around the field of play, which might inadvertently be picked up by live broadcast cameras. It took the view that the Mr Mourinho's conduct fell within the category of behaviour in relation to which The FA does not normally take action. The panel considered whether charging Mr Mourinho was a material and unjustified departure from that practice and acknowledged The FA's wide discretion. The conclusion was that he was unfairly singled out for disciplinary action. There was no comparable example of a player or manager having been disciplined for similar conduct, but there were several examples of more serious conduct where no action was taken.

The decision ultimately came down to the matter of fairness: was it fair for the FA to proceed against Mr Mourinho if the same or similar behaviour had not resulted in such regulatory action?

It is clear that the decision is likely to have wide-reaching consequences for all sports governing bodies - participants will need to have fair warning of any significant change of regulatory approach (not just the black letter rules) to ensure that disciplinary action is fairly and consistently taken.

This blog is based upon the published decision dated 17 December 2018, which is available online at: http://www.thefa.com/news/2018/dec/17/mourinho-update

William Norris QC of 39 Essex Chambers was the chair of the fresh regulatory commission. Udo Onwere of Bray & Krais solicitors and Aisling Byrnes of 25 Bedford Row sat as the panel members.

Stephanie David assisted William Norris QC in his role.