QUOTE
389. We remind ourselves that the test for a breach of Rule E3(1) is an objective test. That
means that it is for us to form our own view as to whether Mr Suarez's words or
behaviour were abusive or insulting. It is not necessary for the FA to prove that Mr Suarez
intended his words or behaviour to be abusive or insulting. We are concerned with
whether the words or behaviour were abusive or insulting when used in a football match
played in England under the FA Rules. Mr McCormick accepted that we should apply
standards that we consider should be applicable to games played under the jurisdiction of
the FA. We are not deciding whether the words or behaviour would have been abusive or
insulting if used in a match in Uruguay. Nevertheless, we have taken account of the fact
that the words were said in Spanish by a Uruguayan player to a French player who speaks
Spanish. We have also had regard to the Spanish language expert evidence about how
particular uses of "negro" and comments using "negro" would or might be understood in
Uruguay. However, ultimately our task is to decide whether in our view the words or
behaviour were abusive or insulting in the circumstances in which they took place in this
match played in England under the FA Rules.
390. Mr Suarez used the word "negro" in his comments to Mr Evra because Mr Evra's skin
colour is black. In our judgment, Mr Suarez's words were insulting when he used the
word "negro" in each of the comments to Mr Evra which we have identified in paragraph
388 above.
QUOTE
Discussion and conclusions on penalty
426. We approached the issue of penalty in the following way.
The entry point
427. In accordance with Rule E3(2), we considered the imposition of an increased sanction.
Rule E3(2) directs us to take into account as an entry point, this being Mr Suarez's first
offence, a sanction that is double that which the Commission would have applied had that
aggravating factor of colour not been present.
428. In considering what sanction the Commission would have applied had the aggravating
factor of colour not been present, we note Paragraph 8(d) of the Disciplinary Procedures
which provides for an automatic two-match suspension if a player is sent off for insulting
language. Thus, a player who used insulting language, which did not include any
reference to ethnic origin, colour or race, would receive an automatic two-match
suspension. 107
429. Rule E3(2) then directs us to consider, as an entry point, a sanction that is double the
automatic two match suspension for insulting behaviour on account of the presence of the
aggravating factor of a reference to colour. Doubling the automatic two-match suspension
would result in a four-match suspension. We decided that an entry point of a four-match
suspension was appropriate in this case in line with the guidance in Rule E3(2).
430. We then considered the factors that supported a greater penalty than the entry point of a
four-match suspension ("aggravating factors").
431. The first aggravating factor was the number of times Mr Suarez used the word "negro" or
"negros". The entry point of a four-match suspension could apply in a case where the
alleged offender had used insulting words including a reference to colour once only
during a match. We have found that Mr Suarez used the word "negro" or "negros" seven
times in his exchanges with Mr Evra. It happened, also, in a number of phases. First, there
were the exchanges in the goalmouth. Secondly, there was the exchange just before the
referee spoke to the players. Thirdly, there was the exchange just after the referee had
spoken to the players. Whilst we recognised that the exchanges occurred over only a twominute spell in the second half of the match, there were multiple uses of the insulting
words by Mr Suarez.
432. The second aggravating factor was what Mr Suarez said when using the insulting words.
He did not simply use the word "negro" to address Mr Evra. He did that, but he also said
that he had kicked Mr Evra because he was black, and that he did not talk to blacks. Even
if Mr Suarez said these things in the heat of the moment without really meaning them,
nevertheless this was more than just calling Mr Evra "negro". According to the Spanish
language experts, the uses would have been regarded as racially offensive in Uruguay.
433. The third aggravating factor was the context in which Mr Suarez used the insulting words.
The context was of an acrimonious exchange, which included Mr Suarez pinching Mr
Evra's skin and putting his hand on the back of his head, both of which we found were an
attempt by Mr Suarez to wind up Mr Evra. Although we have found that the pinching
itself was not insulting behaviour nor did it refer to Mr Evra's colour, such physical 108
contact as part of a confrontation in which the insulting words were used served to
aggravate the misconduct.
434. The fourth aggravating factor was the fact that the FA has promoted campaigns to root
out all forms of unacceptable behaviour related to a person's ethnic origin, colour or race
in football, such as the "Kick It Out" campaign. Mr Suarez knew or ought to have known
that his behaviour was contrary to the message of those campaigns and unacceptable.
435. The fifth aggravating factor was that the insulting words were targeted by Mr Suarez at
one particular black player, Mr Evra, who Mr Suarez intended should hear the words. It
was not a case of a comment or comments directed at no-one in particular. Rather the
words were directed at Mr Evra in the context of an argument in which Mr Suarez was
attempting to wind up Mr Evra. We accept that Mr Evra was angry and upset during the
remainder of the game and at the end of it as a result of Mr Suarez using the insulting
words.
QUOTE
Conclusions on penalty
441. The use by a footballer of insulting words, which include reference to another player's
colour, is wholly unacceptable. It is wrong in principle. It is also wrong because
footballers, such as Mr Suarez, are looked up to and admired by a great many football
fans, especially young fans. If professional footballers use racially insulting language on a
football pitch, this is likely to have a corrosive effect on young football fans, some of
whom are the professional footballers of the future. It also has a potentially damaging
effect on the wider football community and society generally. Every professional
footballer should be able to play competitive football in the knowledge that references to
the colour of his skin will not be tolerated. The same goes for all levels of football. Those
who are victims of misconduct of this nature should know that, if they complain and their
complaint is upheld, the FA will impose an appropriate penalty which reflects the gravity
of this type of misconduct.
442. There is no tariff set down for penalty in such cases. There is the guidance in Rule E3(2) to
which we have referred. Having heard the evidence over several days and made our
detailed findings, we have weighed the aggravating and mitigating factors against each
other. Having done so, in our judgment an appropriate and proportionate penalty is an
eight-match suspension, a fine of £40,000 and a warning as to future conduct.
443. As for the length of the suspension, we concluded that a four-match ban, which was the
entry point under Rule E3(2), would be too low and would not reflect the gravity of the
misconduct. Mr Suarez's behaviour was far more serious than a single use of the word 110
"negro" to address Mr Evra in a way which would be considered inoffensive in Uruguay.
If that was all that Mr Suarez had done, and we had found the Charge proved, the penalty
would have been less than we have imposed.
444. Ultimately, this is not a matter of mathematical calculation, but a matter for the exercise of
our discretion in the light of all the circumstances. We considered a lower suspension; we
considered a greater suspension. We concluded that an eight-match suspension was
appropriate and proportionate, reflecting the seriousness of the misconduct, balanced
against the mitigation that was urged on us.
445. We also fined Mr Suarez £40,000. In doing so, we took account of the information that was
placed before us about his weekly salary. We considered this to be appropriate and
proportionate in the light of Mr Suarez's misconduct.
446. We also warned Mr Suarez as to his future conduct. This is customary where misconduct
charges are upheld, although we did not impose it simply as a matter of course. We
considered it appropriate and proportionate to warn him not to repeat this misconduct.
Stay of the eight-match suspension
447. Regulation 8.9 of the Disciplinary Regulations provides that unless the Commission
determines otherwise, a penalty shall come into effect immediately at the date of the
announcement of the decision.
448. Once we had announced our decision on penalty, Mr McCormick applied for a stay of the
eight-match suspension. He pointed out that Mr Suarez has until 14 days after the date of
the written reasons for the decision in which to appeal. He would not be in a position
properly to decide whether to appeal until he received the Commission's reasons for its
decision. However, if Mr Suarez served his suspension immediately, that would be unfair
in the event of a successful appeal.
449. We could see the force of this submission. Accordingly, we ordered a stay of the eightmatch suspension pursuant to Regulation 8.11 of the Disciplinary Regulations until 111
(1) the expiry of the 14-day period from receipt of our written reasons in which Mr
Suarez has a right of appeal against this decision, if no appeal is lodged during
this period,
(2) the outcome of any appeal lodged by Mr Suarez against this decision, if an
appeal is lodged during the period for appealing, or
(3) written notification to the Football Association of any decision by Mr Suarez not
to appeal, if served prior to the expiry of the period for appealing.
450. We also deemed Mr McCormick's application for a stay of the suspension pending any
appeal following receipt of our reasons to be an application for written reasons pursuant
to Regulation 9.3 of the Disciplinary Regulations. In the absence of a request for written
reasons from either party, written reasons are not required and are not usually provided
to the parties.
FA's been kind enough
QUOTE
Mitigating factors
436. We also considered the mitigating factors. The first mitigating factor was that Mr Suarez
had a clean record in relation to charges of this type.
437. The second mitigating factor was that Mr Evra started the confrontation in the goalmouth
and Mr Suarez reacted to it. It is important to point out that Mr Evra's conduct in starting
the confrontation was in response to being fouled, which involved being kicked on a knee
which had caused him trouble in the past. Mr Evra did not touch Mr Suarez and, whilst he
used an offensive phrase which Mr Suarez did not hear, Mr Evra did not use any words
which referred to Mr Suarez's ethnic origin, colour, race or nationality. Nevertheless, he
was the initiator of the confrontation at this moment.
438. The third mitigating factor concerns Mr Suarez's personal situation in terms of his family,
friends and those who look up to him, especially in Uruguay. We recognise that his
behaviour during the match is likely to become widely known as a result of our decision
with the consequent embarrassment and personal difficulty for him. 109
439. The fourth mitigating factor is Mr Suarez's charitable work, especially through the South
Africa football project. We recognise that Mr Suarez has made a valuable contribution
through that project, although a player who does so should be especially careful not to
undermine the principle underlying such a project by his own behaviour on a football
pitch.
440. The fifth mitigating factor is that we believe that Mr Suarez has learned a lesson through
the experience of these proceedings. He told us that he would not use the word "negro" on
a football pitch in England in the future and it would be highly surprising if he did so.
» Click to show Spoiler - click again to hide... «
QUOTE
115. Mr Kuyt gave a slightly different version from Mr Marriner, Mr Evra and Mr Giggs. He
said that after the goal kick he was close to Mr Evra and said "Come on, let's move on, let's
keep going with the game" and touched Mr Evra just on the arm. According to Mr Kuyt,
Mr Evra reacted aggressively and smashed his arm away and at that point, the referee
having seen the incident, called Mr Evra to him and booked him. Mr Kuyt said that he
was very close to Mr Evra and the referee at this time. He said he was "absolutely certain"
that he heard Mr Evra say that the referee was only booking him because he was black.
116. We found the evidence of Mr Marriner on this point to be credible and plausible. He
recalled Mr Evra telling him that he was being called black. This is consistent with Mr
Evra's evidence of what he told Mr Marriner at that time, and also with Mr Giggs'
evidence of what Mr Evra said to him shortly afterwards. In light of this, we reject Mr
Kuyt's evidence that Mr Evra said that the referee was only booking him because he was
black, however certain Mr Kuyt was that he heard it. Moreover, it would make no sense in
the circumstances for Mr Evra to accuse the referee of only booking him because he was
black. Not only had Mr Evra pushed Mr Kuyt away, which he is likely to have realised
had led to his booking, but his concern at that stage was that he had been called black
(bearing in mind that, at the very least, Mr Suarez admits having called Mr Evra "negro"
by this stage of the game).
Kuyt
Dec 29 2011, 09:03 AM
Quote
. Too good to be true. Guess Duke is spot on the consistency thingy. 
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