As has been well documented the FA found Suarez guilty as charged. The report containing its written reasons for doing so includes sections that make uncomfortable reading for anyone who wants to believe categorically that Suarez is entirely innocent of using “abusive and/or insulting words and/or behaviour towards an opponent that included a reference to the ethnic origin and/or colour and/or race of Mr Patrice Evra.”
However, its conclusion and justification of its verdict leaves a far stronger feeling of unease. The UK press would have you believe otherwise, falling over themselves to laud an organization that it normally derides. The case brought by Evra was an opportunity for both the FA and the press to address the issue of racism and further the cause of eradicating it from sport and society at large. Instead both those institutions have used it as an occasion to appear tough on racism while spectacularly missing the point.
Since the charges were first levied the press have vilified Suarez and this has been amplified since the verdict and written reasons were released. It is in this febrile atmosphere that the club and Suarez have been forced to either accept a finding they vehemently dispute or stand for what they believe to be the truth.
Liverpool FC and Luis Suarez have issued statements this week and, in Suarez’s case, an apology, but neither has accepted the findings of the FA Commission as true. The club statement says that the FA commission "chose to consistently and methodically accept and embrace arguments leading to a set of conclusions that found Mr Suarez to 'probably' be guilty." and decried the report as “subjective.”
I for one applaud this stance even though it is generating further negative publicity for club and player. That negative publicity is coming from a press that has uniformly declared the report as exhaustive and offering incontrovertible evidence of Suarez’s guilt.
Perhaps that is unfair and somewhere in the national press is a consideration that the options for appeal in such cases are so unsatisfactory that they are not worth pursuing but I can’t find it. I am sure likewise there is, buried somewhere, a discussion of how the process that “convicted” Suarez would be completely unacceptable to any of the journalists were they to face a similar charge.
Instead what you find is James Lawton, writing on Wednesday this week, in an article questioning Liverpool's credibility after they announced they would not appeal:
"The opportunity was for a little grace and the concession that in a difficult, and often hate-filled world, perfect solutions are not always available. That chance was blown, along with any suggestion of the courage that comes with the truest conviction."
This is the same man who had written on Monday,
"You cannot do what Suarez did – as proved by video evidence and confirmed by linguistic expertise, including a knowledge of the nuances of references to race in the player's native Uruguay – and get away with some implausible argument that you were innocent of the charges against you. Not when you have been found, irrefutably, to have said, without the interruption of any other word, "black, black, black..." "
Irrefutable except that there is no evidence on video or otherwise that he said this other than Evra's testimony. That is not to say Evra is lying. It does, however, beggar belief that a respected journalist writing for a major broadsheet can be so cavalier with the notion of truth. The fact that the Commission decided that it was "probable" that this is what was said does not in any reasonable mind equal an irrefutable truth. Lawton in writing the second article on the Wednesday was goading Liverpool that in not appealing they were lacking the courage of their convictions. Absolute drivel, of course, juvenile "gotcha" journalism at its worst but typical of the kind of commentary surrounding this story. It has left the club in a 'damned if you do, damned if you don't' position. No wonder Dalglish cannot disguise his contempt for the profession.
This is not to single out Lawton. Many of his colleagues have repeated this mantra that the report is exhaustive and fair and when they stop helpfully suggesting Liverpool should issue white pointy hats (nothing like a comedic reference to the KKK to show how serious you are; take a bow Mr Samuel) they have condemned Suarez and the club for not accepting it in its entirety.
So what are Liverpool being asked to accept with grace?
A report that is reminiscent of a government review of it own actions with a patina of independence that, when disturbed, exposes an exercise in self-justification. I read it with increasing anger and frustration.
The sheer hubris of the FA and its appointed Commission is apparent in the report. The charge was serious; it would constitute a criminal offence outside of a football pitch. The cps define a hate crime as "Any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person's race or perceived race" and that includes verbal abuse. Presumably Evra given all the descriptions of how upset he was would perceive himself as a victim of such a crime.
So the FA were confronted with a situation and an accusation that at best stretches, and I would say breaks, the limit of its rule’s suitability to encompass the charge. When considering the rule E3 (1) and E3(2) such was the nature of the accusation that the Commission should have referred the matter to the police if they were convinced there was a case to answer. Short of this they could have adjudicated that their rules are insufficiently drafted to allow for proper consideration of a case where there is a lack of independent evidence. Instead they pressed forward within the existing rules, pausing to give justification to their rejection of McCormick’s (Suarez’s legal representative) argument that the rule does not reflect the reality.
(Sections 48-80, pages 17-25 of the report)
The issue: objective or subjective test?
50. In deciding whether there has been a breach of Rule E3, it is necessary to ask what has to be proved in order to establish a breach. In particular, is it sufficient to prove that in a case such as this, the words or behaviour are objectively speaking abusive or insulting in the judgment of the Commission (the objective test)? Or is it necessary to go further and prove that, in addition to the words or behaviour being abusive or insulting, the alleged offender subjectively intended them to be abusive or insulting (the subjective test)?
61. In our judgment, if would be an odd conclusion to reach that the drafters of Rule E3(1)intended a different test to apply to different parts of the same Rule. All the more so if they left it up to those responsible for complying with, and those applying, the Rules to decide which test applied to which parts without any guidance. These problems are avoided if the objective test applies to Rule E3(1) as a whole.
It would seem to me that to think that the drafters of E3 (1) were capable of seeing into a future where a goalmouth argument in Spanish, witnessed by no-one other than the participants, that centered around the intent of a word that has different cultural usages, would be decided under its wording is a far odder conclusion to draw. Rules are written with the intention of covering most cases but they are adapted when they are seen to be inadequate for a specific situation otherwise in the most general sense we would be living under laws that had been static for centuries.
Had the accusation centered around Suarez’s one admitted use of the word “negro” then the FA could have had its discussion of subjective and objective judgments and served the cause of anti-racism, if that was in fact its intention. It could have found Suarez guilty of abuse with an unintentional racial element and the discussion could have centered around the issue of what constitutes racial abuse and its destructive nature. Suarez could then have apologised without an admission of guilt and used his celebrity to explain how he had learnt and others could learn from it too. By expanding the charge to embrace all of Evra's accusations that chance was gone. Instead the lesson it has handed out is that a guilty verdict can be delivered when no independent evidence exists. It seems the FA decided that Suarez's character was expendable in the cause of protecting itself from charges of being out of touch or soft on racism. One can speculate what the motivation for doing so was but nonetheless that is an inescapable conclusion despite what the press would have you believe.
Having reached this conclusion the Commission was now committed to adjudicating in a case that would have carried serious criminal sanction for a guilty party had it occurred between two fans standing a few feet away. To do this the standard of proof was merely what was in their view “probable”. Clearly the rules require this but again one would expect a QC of Greany’s experience and reputation to advise the FA that it fails in a test of adequacy when someone is accused of committing a sustained verbal attack with racially charged invective.
They manner in which the Commission arrived at this assessment of probability was primarily the consideration of inconsistencies in Suarez’s evidence. It is clear that the Uruguayan’s statements as reported by Damien Comolli and Dirk Kuyt, that he had told them he said “because you are black” when asked by Evra why he had kicked him are troubling, particularly as they were translated from two different languages. The withdrawing of these statements and Suarez's explanation that they both misunderstood him are not easy to reconcile. However, part of the potency of this inconsistency was in the comparison that the Commission drew with Evra’s presentation of his evidence and ultimately the inference of character that could be drawn in either case; specifically what the presentation of their witness statements said about their willingness to lie or at least embellish their respective memories of the events. Given this reliance on consistency, serious concerns should surround the manner in which Evra was allowed to draw up an early witness statement while watching video of the game, an obvious advantage if your goal is to match testimony to footage that contains no evidence of the words being used. The tape of this interview was not included in the original submission of evidence materials to the Commission, make of that what you will.
That aside, the central issue was whether Evra was less likely to have invented the charge and the specificity of it than Suarez was to have suddenly decided to racially insult an opponent. The Commission judged that to be the case and the press have leapt on any suggestion that it is even possible, let alone probable, that Evra could have even exaggerated the charge. Questioning the reputation of the United fullback, in their considered opinion, is a sign that Liverpool are acting in self-interest, sheltering a racist in their midst and harming the campaign against racism itself. Meanwhile Suarez is left languishing in the stocks of public opinion. Yet Evra had aggressively disputed the coin toss, had suggested that Suarez deliberately kicked him on a previously damaged knee when video shows no such kick took place, was supposedly in "shock" at the maliciousness of this non foul five minutes later (a state of shock that had presumably left him so dazed he had no recollection of provocatively kissing his badge in front of the Paddock).
Video (from Canal+) has now emerged of him using the word "nigger", a word that he claimed he couldn’t bring himself to say, the explanation of why he didn't tell the referee that's what he had been called at the time. That reluctance in fact did not even extend to the moments after the game when he used that word to describe what he had been called to Alex Ferguson and subsequently the referee. The fact that he "downgraded" his accusation from this most inflammatory of racial slurs to merely "black" was deemed inconsequential and none of these factors was considered to diminish his credibility. Conversely Suarez’s previous work in anti-racism campaigns, the fact that his Grandfather was black or that there were no previous indications that he harbored racist sentiments were ultimately discounted.
Again this is not to say that Evra is lying or that Suarez is definitely telling the truth. Nobody outside of the two of them can ever know. And that is the point. However, when what is "probable" is the only proof required, the willingness of the Commission to rule on each occasion of inconsistency regarding Evra's testimony that he had only the most benign of intentions smacks of a desire to find Suarez guilty.
None of this is getting any proper consideration in the press. Kenny Dalglish, in particular, is coming under attack for his refusal to swallow the assumptions of Suarez's guilt. Instead of buckling he is challenging the press to stop playing the chorus in a production where, against all tenets of a balanced inquiry, the FA acted as prosecutor, judge, and jury. The press, inevitably, are responding with feigned outrage that the Scot dare to do so.
It is because racial abuse and discrimination is so pernicious (the conviction this week in the Stephen Lawrence case was a reminder of its ultimate consequence) that the charge and subsequent guilty verdict is so heavily weighted. The remit of the Commission was to consider whether the FA could provide sufficient evidence to back up their charge. In the event, short of Evra’s testimony, they provided exactly none.
It is hard not to conclude that in order to avoid being deemed racist themselves the FA and Commission found an indirect way to pass that particular label onto Luis Suarez. Within this context the FA and Evra's insistence that despite the charge and verdict they do not consider Suarez a racist can be interpreted as a disclaimer designed to prevent a law suit for defamation of character rather than a conciliatory gesture.
They FA have declared Suarez guilty of using a word seven times, a verdict that they could not possibly prove in a court of law. If that advances the anti-racism cause then it does so completely at the expense of justice and that should give a serious pause for thought.