The FA v Daniel Podence - Spitting in the Wind
On 5 April 2023, Daniel Podence (“DP”) of Wolverhampton Wanderers FC was charged with a breach of the FA Rules, rule E1.1 for allegedly spitting at Nottingham Forest FC’s Brennan Johnson (“BJ”) when the two teams played in a Premier League fixture at the City Ground on 1 April 2023.
The FA Rules, rule E1.1 states that the FA ‘may act against a Participant in respect of any Misconduct, which is defined as being a breach of the following… the Laws of the Game’. Law 12.3 of the Laws of the Game indicates that spitting is a sending-off offence. The referee during the game, Chris Kavanagh (“the referee”) did not see the alleged spitting offence nor any evidence of spit, and a VAR check could not establish that DP had spat at BJ.[1] Accordingly, the referee did not take any action against DP during the match.
This article provides a case summary of the Regulatory Commission’s decision, which ultimately found that the charge against DP was not proved.[2]
It is noted at the beginning that despite what is stated above, it is unclear on what procedural or jurisdictional basis the FA brought the charge against DP. It should be noted that a referee’s decision is final.[3] The referee reached a decision during the match in respect of the incident (i.e., to not take any disciplinary action following the VAR’s review of the missed incident), and there is no indication in the Regulatory Commission’s written reasons that the alleged Misconduct was dealt with as a Not Seen incident in accordance with the FA Disciplinary Regulations, Part E: Fast Track Regulations, Fast Track 1: Not Seen Incidents and Successful Deception (i.e., which are normally dealt with without a hearing; this case was dealt with by a hearing).
Notwithstanding that analysis, the Regulatory Commission’s decision refers to DP being charged with spitting at BJ ‘contrary to law 12 of the FIFA Laws of the Game’.[4] (It should be noted that the Laws of Game are produced by the IFAB, not FIFA.) Accordingly, and as indicated above, the charge against DP was brought pursuant to the FA Rules, rule E1.1 and, presumably, the FA’s wide power under the FA Rules, rule E2 to ‘bring a charge or such charges as it sees fit’.
The evidence
BJ provided a witness statement explaining that ‘I felt the contact [of the spit] on the side of my face. I put my hand there in response. I went immediately to the referee and told him that [DP] had spat at me’.[5] Morgan Gibbs-White (“MGW”), BJ’s teammate, also provided a witness statement explaining that ‘I saw DP pretend to spit at [BJ]. Very shortly afterwards, I saw DP actually spit at [BJ]. I confirm I saw the spit on the second occasion’.[6]
DP also provided a witness statement. DP denied the charge but admitted pretending to spit towards BJ on two occasions.[7]
The Regulatory Commission also had the benefit of video footage showing the incident from several angles, and BJ’s post-match interview.[8] The video footage of the incident did not show any spit leaving DP’s mouth.
BJ and the referee attended the hearing by video, and DP attended the hearing in-person, with the Regulatory Commission hearing evidence from each.[9] MGW did not attend the hearing.[10] BJ’s live evidence provided detailed evidence of the incident, such as that there was ‘not an unbelievable amount [of spit], but some spit did hit my face’, which was more certain than BJ’s explanation in his post-match interview.[11] DP’s evidence explained that BJ was being provocative to DP, and that he pretended to spit twice because he did not think BJ saw him on the first occasion.[12]
The Regulatory Commission’s decision
The charge against DP was that he spat at BJ. In the absence of any definition of “spit” or similar in the Laws of the Game, the Regulatory Commission applied the plain ordinary meaning when interpreting “spit”/ “spat”, which requires an intentional ejection of saliva from one’s mouth.[13] This was the determinative issues in the Regulatory Commission making its decision.[14]
The burden of proof was upon the FA to prove the charge on the balance of probabilities (i.e., that it was more likely than not that the alleged conduct occurred or being more than 50% likely to have occurred).[15]
The FA submitted that notwithstanding that spit could not be seen in the video footage ‘it is more likely than not it occurred’, and that even if DP did not intend to spit but some spit did leave his mouth through his own recklessness of pretending to spit, and then some of that spit landed on BJ, then this was sufficient to meet the charge against DP.[16]
DP submitted that the charge could only be made out if it was proven that DP deliberately spat at BJ.[17] It was also submitted that the FA failed to present any compelling evidence to disprove the VAR’s completed checks during the match.
The Regulatory Commission did not accept the FA’s submission on recklessness.[18] The charge as drafted required a state of mind, namely that DP intentionally spat at BJ.[19] The Regulatory Commission also noted that the FA had not charged DP in the alternative with feigning to spit at DP or recklessly doing so.[20]
In such circumstances, the Regulatory Commission found the charge to be not proven on the balance of probabilities.[21]
The Regulatory Commission made particular note of the following:
The video footage did not show any saliva leaving DP’s mouth.[22]
DP was a credible witness, with his explanations of feigning to spit being consistent from the immediate aftermath of the incident up to and including his live evidence at the hearing.[23]
There were weaknesses in BJ’s evidence. BJ’s written statement made no mention of seeing saliva leave DP’s mouth, but when giving live evidence he provided ‘surprising detail about how he was able to see the saliva leave DP’s mouth’.[24]
The comments in BJ’s post-match interview were also significant, where BJ stated ‘… but at the end of the day it didn’t happen’.[25]
Little weight was also attached to MGW’s statement in the absence of him being present for questioning.[26] However, the referee’s evidence that during the match MGW indicated that DP had spat on BJ’s shirt, not his face, and that the referee could not see any spit on BJ’s shirt at the time of the incident were significant factors.[27]
Analysis
The Regulatory Commission was correct in its criticism of the FA in not wording the charge against DP widely enough to encompass conduct that amounts to “attempting to spit”, “pretending to spit” or similar, and bringing the same within the meaning of, for example, FA Rule E3.1 as conduct that 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’.
The decision provides a helpful reminder – for the FA and Participants – to carefully consider the wording of the charge against a Participant, and the significance of consistency in evidence when a Regulatory Commissions makes findings of fact.
Footnotes
[1] The FA v Daniel Podence, The FA Regulatory Commission (Ch. Ifeanyi Odogwu), 17 May 2023, [4] and [19].
[2] Ibid, [34].
[3] Laws of the Game, Law 5.2 and VAR Protocol, para. 4.
[4] (n1), [4] and [12].
[5] Ibid, [6].
[6] Ibid, [7].
[7] Ibid, [9]-[10] and [20].
[8] Ibid, [8] and [11].
[9] Ibid, [14] and [17].
[10] Ibid, [15].
[11] Ibid, [18].
[12] Ibid, [20].
[13] Ibid, [25].
[14] Ibid, [26].
[15] The FA’s Disciplinary Regulations, Part A – General Provisions, para. 8; (n1), [23].
[16] (n1), [21].
[17] Ibid, [22].
[18] Ibid, [24].
[19] Ibid, [25].
[20] Ibid.
[21] Ibid, [27].
[22] Ibid, [28].
[23] Ibid, [29].
[24] Ibid, [30].
[25] Ibid, [31].
[26] Ibid, [32].
[26] Ibid, [33].
26 July 2023