The FA v Louza: One Standard of Proof to Rule Them All

The recent decisions of the FA Regulatory Commission (“RC”) and FA Appeal Board (“AB”) in the matter of The FA v Imran Louza have provided an opportunity to consider the standard of proof required to be satisfied by The FA when seeking to prove a charge of misconduct against a Participant.[1]

This article will not repeat the facts underlying the RC’s and the AB’s decisions, and you are invited to read those decisions for the facts, or alternatively this helpful summary article from Onside Law’s George Cottle. Similarly, Nick De Marco KC’s (who represented Mr Louza) article for LawInSport providing detailed analysis of the AB’s decision should be referred to.

This article will explain the evidential burden and standard of proof applicable to charges of Misconduct brought by The FA against Participants, summarise the AB’s decision on the points of law applicable to satisfying the standard of proof in cases of “serious Misconduct”, and consider whether the AB’s decision has brought about any change that sports lawyers should apply going forward.

The Evidential Burden and Standard of Proof

The FA’s Disciplinary Regulations, or other provisions in The FA Handbook, do not specify who has the evidential burden. Nevertheless, as a course of practice and common sense, when The FA brings a charge of misconduct against a Participant the burden of proof is upon The FA to prove the matters underlying that charge.

Largely, there is no evidential burden upon a Participant charged with Misconduct by The FA.[2] The Participant can simply challenge the evidence relied upon by The FA. Alternatively, the Participant may wish to put a positive, counterfactual case to that presented by The FA when defending a charge of Misconduct. In such circumstances it can be said that there is a burden of proof upon the Participant to prove such matters but ultimately a Regulatory Commission and/or Appeal Board is tasked with determining whether The FA can prove its case.

The FA’s Disciplinary Regulations, Part A – General Provisions (“the General Provisions”), para. 8 states that save where stated otherwise, ‘the applicable standard of proof shall be the civil standard of the balance of probabilities’. In normal terms, this means that to prove a matter before a Regulatory Commission and/or an Appeal Board, as the case may be, the relevant party needs to prove with evidence that it is more likely than not that a matter occurred. This standard of proof is sometimes referred to numerically – but no more helpfully – as “being more than 50% likely to have occurred”.

It should be noted that there is not a binary choice. It is not simply a matter of (i) a matter occurred or (ii) a matter did not occur. Depending on the circumstances, a Regulatory Commission or Appeal Board may have insufficient evidence to make a finding either way, or alternatively the counterfactual has not been pleaded in response. It is open to a Regulatory Commission or an Appeal Board to simply conclude that a matter cannot be proven on the evidence available.

One exception to the above is that where there are criminal, civil, disciplinary, or regulatory proceedings in relation to the same matter upon which The FA brings a charge of Misconduct against a Participant, any findings of facts made in such proceedings are presumed to be correct ‘unless it is shown by, clear and convincing evidence, that this is not the case’.[3] This ordinarily has the effect of placing a burden of proof upon a Participant charged to show that such findings are incorrect. Nonetheless, the standard of proof in proving that incorrectness remains “on the balance of probabilities”.[4]

It should be noted that in cases of serious Misconduct – that is, for example, allegations of spitting, discriminatory language, or assault – it is regularly submitted by counsel or advocates for The FA and Participants that “the more serious the allegation the more cogent the evidence must be to prove the same”. So, while not altering the standard of proof (i.e., on the balance of probabilities) in such cases there is a particular need for cogency in the evidence relied upon to prove the serious allegation (as more fully explained below). Indeed, the chair of the AB in The FA v Imran Louza and The FA have previously accepted this position. In The FA v Conor Hodgson (a case concerning allegations of using discriminatory language) the FA Regulatory Commission stated the following (upon the FA and Mr Hodgson’s representative agreeing to the same):

‘The burden of proof rests upon The Football Association to establish the Aggravated Breach on the balance of probabilities bearing in mind that the more serious the allegation the more cogent the evidence must be to establish the charge’.[5]

‘The burden of proof rests with The Football Association to prove the charge on the balance of probabilities test. Given the serious nature of the allegation cogent evidence is required so as to persuade the Commission that the balance of probabilities test has been made out’.[6]

Finally, it should also be noted that the General Provisions, para. 9.1 states that Regulatory Commissions and Appeal Boards are ‘not… obliged to follow the strict rules of evidence’. Further, there is no doctrine of precedent from one decision of a Regulatory Commission or Appeal Board to another.

The AB’s Decision

In considering the standard of proof in cases of serious Misconduct, the AB stated:

‘The standard of proof in disciplinary proceedings that come before Regulatory Commissions and Appeals Board of The Football Association is, unless The FA Rules and regulations otherwise state, that which is set out in FA Disciplinary Regulations Part A – General Provisions Regulation 8 namely the civil standard of the balance of probabilities. 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’.[7]

The AB stated that the correct position in law was set out by Eder J at paragraphs [84] to [89] in Otkritie International Investment Management Limited & Ors v Urumov & Ors [2014] EWHC 191 (Comm) (“Otkritie”) (a case before the High Court involving claims of fraud), which was summarised by Eder J and by the AB as follows:

‘First, there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not;

Second, the proposition that “the more serious the allegation, the more cogent the evidence needed” to prove it is wrong in law and must be rejected;

Third, while inherent probabilities are relevant in considering whether it was more likely than not that an event had taken place, there is no necessary connection between seriousness and inherent improbability’.[8]

Further, which was emphasised by the AB at paragraph [33] of its written reasons, Eder J’s summary also stated:

‘I am prepared to accept that in a very broad general sense, it may well be true to say that it is inherently improbable that a particular defendant will commit a fraud. But it all depends on a wide range of factors. For example, if the court is satisfied (or it has been admitted) that a defendant has acted fraudulently or reprehensibly on one occasion, it cannot necessarily be considered inherently improbable that such defendant would have done so on another; or if, for example, the court is satisfied (or it has been admitted) that a defendant has created or deployed sham or false documents, the court cannot assume that it is inherently unlikely that such defendant did so on other occasions. For the avoidance of doubt, I should make absolutely plain that this is not to say that inherent probability is irrelevant. On the contrary, as submitted by Mr Casella, I accept, of course, that the court should take into account the inherent probability of an event taking place (or not taking place) as is made abundantly plain by Baroness Hale in the passage from Re S-B quoted above. However, as it seems to me, the court must in each case consider carefully what is – and is not – inherently probable having regard to the particular circumstances – but the standard of proof in civil cases always remains the same i.e. balance of probability’.[9]

Accordingly, the AB concluded on this point of law that:

‘Analysis of the facts of a case may suggest, notwithstanding the seriousness of the allegation, the allegation is not at all improbable and may in fact be probable. Future commissions may find it more helpful to focus on the specific facts and identify, with such reasons as are appropriate, why something is said to be inherently improbable on the particular facts of the case. It is a fact specific exercise. Broad sweeping generalisations should be avoided. The identified improbability, if such exists, and the related evidence is something which a commission is entitled to take into account when deciding if the civil standard of the balance of probabilities has been established’.[10]

Does the AB’s Decision Change Anything?

In this author’s opinion: no, albeit it arguably makes things unclear.

The submission or point that “the more serious the allegation the more cogent the evidence must be to prove the same” or similar does not of itself seek to elevate the civil standard of proof and never has. The submission simply goes to the point of the quality of the evidence and the inherent probabilities or improbabilities of a serious allegation, subject to the specific circumstances potentially demonstrating that the seriousness is in fact irrelevant (e.g., evidence of previous similar Misconduct or that the conduct is commonplace in certain settings). However, one simply would not (or should not) make the submission that “the more serious the allegation the more cogent the evidence must be to prove the same” if the circumstances are, for example, that the Participant charged with serious Misconduct has a previous record of such Misconduct.

This author’s concern is that in circumstances where a Participant is charged with serious Misconduct, it may now be argued by The FA that the AB’s decision demonstrates that the submission “the more serious the allegation the more cogent the evidence must be to prove the same” or similar cannot be made. That is not what was decided by Lady Hale JSC at paragraph [13] of her judgment in Re S-B [2010] 1 AC 678 (reference should be made to the “heightened standard of proof” referred to in [11] of her judgment) (“Re S-B”) or paragraph [35] of her judgment in Re J [2013] 1 AC 680 (“Re J”), and which, in this author’s opinion, Eder J, and therefore the AB, erroneously relied upon to summarise that the proposition that “the more serious the allegation, the more cogent the evidence needed to prove the same” alone is wrong in law and must be rejected.

It is emphasised, the mere use of that submission alone does not seek to elevate the standard of proof but goes to the quality of the evidence and the inherent probabilities or improbabilities of a serious allegation, subject to the specific circumstances potentially demonstrating that the seriousness is in fact irrelevant.

If a further submission were to be made that “consequently there is a heightened standard of proof”, then that is wrong in law, which is what is stated by Lady Hale JSC in Re S-B and Re J.

It is this author’s concern that that important difference is not immediately apparent from the AB’s written reasons.

This author takes support from his understanding based on The FA, previous Regulatory Commissions and Appeal Boards, and many experienced sports lawyers making or accepting the proposition that “the more serious the allegation the more cogent the evidence must be to prove the same”. This is not to suggest that any of those individuals or panels are infallible. Simply, all were of the understanding that the standard of proof was not being heightened but there simply needed to be sufficient cogency in the evidence to meet the standard of proof considering the seriousness of the allegation (in circumstances where there were not circumstances demonstrating that the seriousness was irrelevant).

Further, it is notable that Phipson on Evidence (Sweet & Maxwell 2021, 20th edn.), Chapter 6 – Burden and Standard of Proof, Section 7 – Standard of Proof: Civil Cases, part (b) ‘Serious or criminal allegations and quasi-criminal proceedings’ makes no reference to Eder J’s decision in Otkritie.

The correct legal position as this author has attempted to explain it was succinctly put by Richards LJ in R(N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468:

‘Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, 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. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a high degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities’.

This was approved by Lord Carswell in Re D (Secretary of State for Northern Ireland Intervening) [2008] 1 WLR 1499 (HL) at [27] and [28] (a decision which was cited by Lady Hale JSC in Re S-B at paragraph [14]), who added the following minor clarification:

‘It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place… the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established’.

For this author, this is not new or novel point of law. It has been around for some years. The AB’s decision in The FA v Louza does not provide helpful clarification and guidance but increases the risk of misunderstanding what was in this author’s experience a previously a well-understood and accepted point of law.

Footnotes

[1] The FA Regulatory Commission (Ch. Simon Parry), 26 October 2022; The FA Appeal Board (Ch. David Casement KC), 18 November 2022.

[2] See for example The FA’s Disciplinary Regulations, Part B – Non-Fast Track Regulations, para. 6. and The FA’s Disciplinary Regulations, Part, Part E – Fast Track Regulations, Fast Track 2, para. 14, 16 and 18.

[3] The FA’s Disciplinary Regulations, Part A – General Provisions, para. 24.

[4] The FA v Fernando Forestieri, The FA Appeal Board (Ch. Sir Wyn Williams), 12 September 2019, [29]-[31].

[5] The FA v Conor Hodgson, The FA Regulatory Commission (Ch. David Casement QC), 31 August 2020, [9]-[10]

[6] Ibid, [28].

[7] (n1) The FA Appeal Board (Ch. David Casement KC), 18 November 2022, [30].

[8] Ibid, [32].

[9] Otkritie International Investment Management Limited & Ors v Urumov & Ors [2014] EWHC 191 [89] (Eder J).

[10] (n7), [34].

24 December 2022