Punishing Historically Offensive Tweets in Football the Grey Area by Samuel Okoronkwo

It has recently been revealed that Burnley striker Andre Gray posted a number of allegedly sexist, homophobic and derogatory tweets on his Twitter account when he was a non-league player at Hinckley United back in 2012. Having scored his first Premier League goal in Burnley’s 2-0 victory over Liverpool on Saturday 20 August 2016, the limelight has focused more on him and his past, given the undoubtedly greater media coverage he is now attracting, than he did whilst rising the football pyramid in Leicestershire.

However, is Gray guilty of an offence pursuant to the FA Rules, despite his comments being posted over four years ago?

The FA rules and social media

While Samuel Okoronkwo was writing this article Gray was charged by the FA, pursuant to Rule E of the FA’s Rules of the Association. Rule E sets out when the FA may act against a player in respect of any “misconduct”, in other words, breach of the plethora of rules which help govern the beautiful game.

In particular, Rule E3 (1) states that players “shall at all times act in the best interests of the game and shall not act in any manner which 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 content of Gray’s tweets would prima facie appear to satisfy these criteria and also may be considered as an “aggravated breach” pursuant to Rule E3 (2) as his tweets referred to “gender… (and) sexual orientation”.

Possible sanctions

Pursuant to Rule E3 (3), Gray could be punished with an immediate 5 match ban and if the FA find any further aggravating circumstances, may increase the suspension within their discretion. However, since it was on Twitter and not on the field of play or during a Premier League or club commercial event, it is likely that Rule E3 (4) would apply so that a “Regulatory Commission will not be bound to impose an immediate suspension of at least five matches for a first such breach” and “may impose any sanction that it considers appropriate, taking into account any aggravating or mitigating factors present”.

Rule E3 Precedent

• In 2011, former Liverpool striker Luis Suarez was charged pursuant to Rule E3 for racially abusing Manchester United’s Patrice Evra during a Premier League match between their respective teams. An independent Regulatory Commission decided that Suarez was guilty of the majority of the charges. The panel imposed a £40,000 fine, suspension for eight first team matches and warned Suarez as to his future conduct as well as ordering him to pay costs.
• In July 2012, former Arsenal player Emmanuel Frimpong was charged pursuant to Rule E3 for improper conduct in relation to comments made on Twitter in response to abuse from a Tottenham fan. He was fined £6,000 by the FA for bringing the game into disrepute.
• In February 2014, former West Bromwich Albion forward and France international Nicolas Anelka was found in aggravated breach of Rule E3 after performing the controversial “quenelle” gesture during a match against West Ham United in the previous December. The quenelle had been considered by many to be an inverted Nazi salute and was created by Anelka’s friend and controversial French comedian Dieudonne M’bala M’bala. Dieudonne had maintained at the time that the quenelle was not anti-Semitic. When banning Anelka for 5 matches and fining him £80,000 it was interesting to note that the Commission “did not find that Nicolas Anelka is an anti-Semite or that he intended to express or promote anti-Semitism by his use of the quenelle”.

The gray area

It is unlikely that Gray will be punished as onerously as Anelka and Suarez due to the nature and timing of his tweets. His offence was on social media alone and pursuant to Rule E3 (4) (iii), a Regulatory Commission has discretion to derogate from the recommended sanction. Further, he has since publically and formally apologised for them and assured the footballing community that he no longer holds such views. His club, Burnley has supported Gray’s apology and rejected such behaviour. Gray has also attempted to delete the offending tweets. It appears therefore that Gray is making an effort to mitigate, rather than aggravate his predicament. But is it enough? Is Gray too late?

This depends on whether the FA seeks to set an example and how Gray chooses to respond to the charges, given the usual nature of this case. If Gray accepts the charge immediately he may be punished with a 1 match ban and a fine of up to £10,000. Alternatively, if he denies the charge, requests a personal hearing and is then found culpable, he may be punished with a ban of up to two matches and a fine of up to £15,000.

The lesson

Consequently, all professional football players, especially those in the Premier League, quite apart from tweeting prudently ought now to be revisiting their historic unguarded tweets, just to ensure that any comments that are likely to prove embarrassing in future are removed.

Samuel Okoronkwo is a practicing Barrister. He specialises in Sports Law with particular emphasis in Professional Football and can be contacted through his Clerk at clerks@mercantilebarristers.com