UEFA has recently charged Celtic with ‘illicit chanting’ for allegedly singing sectarian songs during a Europa League game. Dr. Gregory Ioannidis, a Senior Lecturer in Law at the University of Buckingham, examines UEFA’s lack of a clear definition of ‘illicit chanting’ and whether strict liability can be applied without such a definition. Today we publish Part 2 of the Report.
Illicit chanting and the law
It is well established law (9) that the regulatory framework of sporting bodies must be based on clarity and certainty, as those who use it must ensure that they understand their rights and
obligations, as well as the normative environment in which they apply their trade. UEFA’s relevant Regulation that led to the application of the charge against Celtic
FC is Article 11.2 (e) of UEFA’s Disciplinary Regulations 2011. This states that disciplinary measures may be taken against member associations and clubs in case of inappropriate behaviour on the part of their supporters including ‘the use of gestures, words, objects or any other means to transmit any message that is not fit for a sports event, in particular if it is of a political, offensive or provocative nature’.
Article 2 of UEFA’s Statutes sets out this legitimate aim pursued, which includes the promotion of football in Europe in a spirit of peace, understanding and fair play, without any discrimination on account of politics, gender, religion, race or any other reason. To that extent, the Statutes empower UEFA to implement any measures it deems appropriate to achieve the objectives and, subsequently, the legitimate aim pursued. In this instance, although not defined, the legitimate aim pursued is the separation of the sport of football from politics.
Given our argument that clarity and certainty must accompany any application of the relevant charge[s] against a club, we are left to wonder as to the legal definition, if any, of the charge of ‘illicit chanting’. UEFA Regulations do not define what illicit chanting is; as a matter of fact, they do not even include such a term as part of the relevant and possible offences. Although the song used by Celtic
FC fans may fall foul of Art. 11.2 (e), given its perceived unacceptable nature, we would have to question the validity of the term ‘illicit chanting’, as it is not prescribed in the relevant regulations. The literal interpretation of the word ‘illicit’ incorporates the explanation of something being ‘unlawful’. If ‘unlawful’ was what UEFA had in mind, we fail to discover – with respect - the words ‘illicit’ and/or ‘unlawful’ in the relevant Regulations. This poses a danger and it indeed creates unrest and a feeling of injustice amongst those who believe that without a clear definition of what is ‘illicit’, no such charge could ever acquire the necessary legal certainty.
UEFA of course may argue that no such definition is necessary given that a song that glorifies a terrorist organisation may potentially be offensive and give to a political message that UEFA tries to stop from entering into the sporting arena. We respectfully disagree. UEFA does not define ‘illicit chanting’ nor does it incorporate it into its Regulations. This puts an unnecessary and unfair burden on the club, who at all material times has taken all necessary steps to ensure that its fans had understood and followed the regulatory framework and also appreciated the consequences for not following such framework (10).
We submit that this lack of a clear definition and understanding of what is ‘illicit’ and what it incorporates in terms of ‘illicit’ offends against several well established principles of law. UEFA may argue that, with the application of the fine, the aim has been achieved, but we would respectfully disagree. If societies were to apply sanctions based on common sense or the public interest only, then we would have no need to draft and apply laws and regulations. The requirement to describe the offence and clearly define the sanctions for such offence is essential and necessary, if the offender is to appreciate what the normative environment is and what behaviour he should follow (11). In our example, Celtic
FC is not even the offender and despite its efforts to eliminate the unacceptable conduct, it was held liable by the governing body. Is, therefore, the application of strict liability appropriate in this situation regarding the fine?
Strict liability & proportionality
As argued above, UEFA cannot achieve the aim pursued without the application of strict liability rules. For the lay person, such a rule demonstrates its harsh nature, as it can be applied in a very arbitrary and capricious way (12). For us, it represents an anachronistic form of ‘panic law’ which does not take into consideration the good intentions of the club towards elimination of the problem. The current jurisprudence of the Court of Arbitration for Sport clearly accepts that strict liability is a necessary ingredient towards achieving the legitimate aim pursued (13). There is no doubt in our minds that the rule does not leave any room for manoeuvre and that the member associations and the clubs have to bear strict liability for the actions of their supporters, even if the clubs are not at fault themselves.
The application of such a rule, therefore, is not primarily aimed at prevention and deterrence, but rather on curing the symptoms. UEFA could argue that without strict liability rules, it would never be able to sanction the perpetrators. We understand and accept this submission, as we understand the rationale that the fans are considered to be members of the club and hence, by imposing fines on the club itself it is hoped that the fans (as members of the club) would be encouraged the fans to abandon such behaviour. However, we find ourselves at pains to accept that such a contention
would work in practice. The fact that inappropriate chanting occurs regardless of the fines imposed on the club is indicative of a failing effort, though not in its entirety, as it may be true that the existence of such liability reduces the amount of times such conduct would occur if it were not for the existing penalties. Therefore, is a strict liability approach reasonable?
We could not identify any reports clarifying whether or not Celtic
FC had erred in its efforts to discourage such behaviour. What measures are clubs expected to take and what measures can they reasonably pursue? We are of the view that when such conduct does occur, the actions of the club in discouraging such behaviour should serve as the primary basis for valid defence before being faulted, and that the perpetrators themselves in these situations should carry the full consequence of their own actions. A reason for this view is that there are stakeholders involved (sponsors, players and fans themselves) whose interests in the club and game need be protected. When the club itself is fined, it renders the club as being at fault in the occurrence of such behaviour and if such behaviour remains rampant regardless of the consequences imposed on the club, the economic business of the club itself may be adversely affected. Given that Celtic
FC did everything practicably reasonable (14), in terms of ensuring order and security in the ground, it is our submission that Celtic
FC did – as a matter of fact - follow the normative environment created by the regulator and applied the standards laid by the regulator. UEFA has failed, with respect, to demonstrate that Celtic
FC should have adopted additional measures and as such, we consider the application of the sanction disproportionate to the seriousness of the offence committed.
In addition, if proportionality is to be interpreted in the light of reasonableness (15), it is submitted that the sanction imposed for the benefit of the legitimate aim pursued must also take into consideration the severity and the impact of such sanction on the defendant, as argued above. In the long term, such a sanction may affect the club in many ways. When there are other sanctions available - such as a warning, or a reprimand, or a suspension of the sentence or, perhaps, a combination of all – a Tribunal would have no difficulty in identifying the governing body’s rather improper diversion (16) from the reasonable sanctions available to it. It follows that the fine imposed is superfluous, as UEFA did not consider the lack of previous offences on behalf of Celtic
FC in determining the club’s culpability in the present case. Celtic
FC is not involved in continuous breaches or, at least, UEFA has failed to demonstrate that this is the case. In view of the above, it is our respectful submission that, for a first offence, the sanction must not be evidently and grossly disproportionate (17).
Continues in Part 3
Dr. Gregory Ioannidis
20 August 2012
(9). In the jurisprudence of the Court of Arbitration for Sport.
(10). See the Scottish Premier League’s statement on 5 December 2011.
(11). See ‘USOC v IOC & IAAF 2004/A/725’ and ‘Arbitration CAS 94/129, USA Shooting and Quigley v ISU’.
(12). Although FA Panels in England may take a different approach, see ‘Wimbledon Football Club v Football League’, 29 January 2002.
(13). See ‘CAS 2002/A/423 PSV Eindhoven v UEFA’, ‘CAS 2007/A/1217 Feyenoord Rotterdam v UEFA’.
(14). Immediate public condemnation by the manager and Chief Executive, use of stewards, assistance to the police, use of video/audio equipment, bans to the perpetrators.
(15). See ‘Bradley v Jockey Club  EWCA Civ 56 CA’ and ‘R v Chief Constable of Sussex, ex p International Trader’s Ferry  2 AC 418’.
(16). ‘Fallon v Horseracing Regulatory Authority  EWHC 1898 QB’, ‘Re Duncan Ferguson [Ferguson v SFA] (1996) Outer House Cases’. See also the CAS jurisprudence: ‘Puerta v ITF CAS 2006/A/1025’, ‘Chagnaud v FINA CAS 95/141’, ‘Baxter v IOC CAS 2002/A/376’.
(17). ‘Hipperdinger v ATP Tour, Inc. CAS 2004/A/690’, ‘Squizatto v FINA CAS 2005/A/830’, ‘CAS 2005/C/976 & 986 FIFA & WADA’.