Published 25 July 2019
| Authored by: Tiran Gunawardena, Rustam Sethna
15 July 2019 marked the coming into effect of the new FIFA Disciplinary Code (FDC)1, which was notified to all member associations via Circular no. 1681 on 11 July 20192 (Circular).
In replacing the erstwhile 2017 edition of the FDC, FIFA hopes to implement a code that is not only “better structured and clearer”3, but also more accessible and relevant; by addressing topical disciplinary themes that dominate world football, such as the use of social media, match manipulation and racism, among others.
In general, the new FDC is more concise – with less than half as many articles (72) than its predecessor (147). It is divided into five broad categories dealing with:

General Provisions (Title I);

Offences (Title II);

Organisation and Competence (Title III”);

Special Procedures (Title IV); and

Final Provisions (Title V).

This is in contrast with the previous edition which consisted of two broad chapters, but three levels of sub-division thereunder.
It is safe to say that the new FDC is less an amendment and more a new piece of legislation in its own right. Changes are not merely structural, but also substantive. As with the 2017 FDC, the new FDC applies to “every match and competition organised by FIFA”. However, under the new FDC, FIFA goes on to specify that the application of the code also extends to “matches and competitions that do not fall under the jurisdiction of the confederations and/or associations”, unless expressly stated otherwise. Therefore, for the purposes of this article, the authors seek to analyse the salient amendments to the FDC, and how such changes might affect the various stakeholders in world football. Specifically, it will examine the following themes:

Social networks;

Match manipulation;

Racism and discrimination;

Enforcement of financial and non-financial decisions;

Intermediaries;

Standard of proof;

Accessibility and transparency; and

Expediency.

Note: all references to article numbers in this piece shall be to the new FDC, unless otherwise expressly stated.

Social networks

The FDC identifies 11 different offences, or types of misconduct for which players and team officials may be suspended and/or fined. These include, dissent, unsporting behaviour, foul play, provoking spectators and assault, among others (Art. 12.1 (a-k)). Most commonly, such offences are committed on the field of play.
However, under the new FDC, FIFA will also have the power to sanction players and team officials for the following activities “off the field of play”, which includes, by way of example, social networks:

Offence

FDC Art.

Sanction

Unsporting behaviour towards an opponent or a person other than a match official.

12.1(b)

At least 1 match suspension

Provoking spectators at a match by any means.

12.1(f)

At least 2 match suspension

Unsporting behaviour towards a match official.

12.1(i)

At least 4 match suspension

Intimidating or threatening a match official.

12.1(j)

At least 10 match suspension

Publicly inciting others to hatred or violence on social media/ mass media.

12.4

6-month suspension from football-related activity
+
Minimum fine of CHF 20,000

Thus, now more than ever, players ought to “look before they leap” on the likes of Twitter and Instagram, as they could potentially be sanctioned as if they had committed the offence on the pitch.
Given the substantial influence that players are able to exert over the general public through social media, FIFA has cast its net wide—and rightly so—to ensure that players and team officials comply with FIFA’s overriding objectives of respect (for the game and its regulations) and compliance with the principles of fair play, loyalty and integrity.
While the English FA and UEFA have sanctioned “off field” conduct in the past (see for example, the recent cases involving Andre Gray4 and Dejan Lovren5 respectively), this amendment by FIFA aims to set a global standard for the use and abuse of social media by players and team officials.

Match manipulation

The issue of match manipulation has previously been governed by Article 29 of the FIFA Code of Ethics 2018 (Ethics Code)6. As such, the Ethics Committee was competent to investigate and adjudicate all instances of match manipulation off the field of play, with the competence of the Disciplinary Committee otherwise reserved.
However, the Disciplinary Committee, through the amended FDC, has now assumed the competency to deal with cases of match manipulation, both on and off the field (Art. 18.4). FIFA’s intention here, was to allow the independent Ethics Committee to focus solely on instances of ethical misconduct7 (i.e. conflicts of interest, bribery, misappropriation of funds, abuse of position, betting and gambling, among others).
Additionally, the FDC has altered the sanctioning regime for cases of match manipulation. Previously, violations of Art. 29.4 of the Ethics Code resulted in a catch-all fine of CHF 100,000, plus a ban of either five years or two years based on whether such violation resulted from (a) the involvement with ‘manipulation’ or (b) the failure to report an approach in connection with manipulating a match, respectively.
The FDC regime has been trifurcated as follows:
(a) direct or indirect manipulation of matches by persons;
(b) liability for clubs and associations to whom culpable players belong;
(c) not reporting an approach/ information relating to match manipulation activities. For ease of reference the sanctions have been summarised as follows:

Offence

FDC Art.

Sanction

Directly or indirectly (whether by act or omission), unlawfully influencing or manipulating the course, result or any other aspect of a match and/or competition.

Conspiracy to directly or indirectly (whether by act or omission), unlawfully influencing or manipulating the course, result or any other aspect of a match and/or competition.

18.1

CHF 100,000
+
Minimum 5-year ban from football related activities
or
A longer ban, potentially up to lifetime, from football related activities.

Liability of club or association to which a player or official in violation of 18.1 is subject.

18.2

Forfeiture of the match in question (resulting in a minimum 3-0 defeat)
or
ineligibility to participate in a competition
+
Additional disciplinary measures.

Failure to voluntarily report to FIFA, any approach in connection with activities and/ or information directly or indirectly related to the possible manipulation of a football match or competition.

18.3

Fine of CHF 15,000
+
At least 2-year ban from football related activity.

It is unclear whether Article 29 of the Ethics Code now stands revoked. However, with the Circular highlighting that the “Disciplinary Committee is now the only judicial body that deals with cases of match manipulation”, it appears that Article 29 of the Ethics Code will be revoked in due course.

Racism and discrimination

Despite the increasing awareness surrounding the issues, the occurrence of racism and discrimination is all too familiar a problem faced by world football. One only has to look back a few months to recall the shocking abuse of stars Raheem Sterling8 and Moise Kean9; and that would barely be scratching the surface of discrimination in football.
Indeed, these issues have been addressed by FIFA in previous versions of the FDC, with the 2017 version banning a person who engaged in racist or discriminatory behaviour for at least 5 matches plus a fine starting from CHF 20,000 plus a stadium ban. Similarly, clubs or associations were held liable for the discriminatory behaviour of its supporters, by way of fines starting at CHF 30,000, in addition to forfeiting matches, deducting points, disqualification from competition and playing behind closed doors.
While the essence of the sanctioning remains largely the same under the new FDC, FIFA has not only attempted to cement a firm stand against racism and discrimination, but also aims to address the problem through clubs and associations. This is largely in part due to FIFA’s partnership with FARE, a network committed to social inclusion and anti-discrimination in football, around the world.
Important changes to FIFA’s approach on racism and discrimination (Art. 13) are as follows:

The minimum suspension for persons who engage in racist or discriminatory behaviour has been increased from 5 to 10 matches;

While clubs continue to be liable for the conduct of their supporters, a first offence warrants a fine of CHF 20,000, reduced from CHF 30,000 but coupled with playing a match with a limited number of spectators, thus having the potential to harm the club for a financial value that is greater than the CHF 10,000 saved as a result of the new minimum fine;

Notably, in addition to the usual sanctions imposed on clubs/ associations for repeat offences (i.e. fines, points deductions, relegation, expulsion, forfeiting and stadium bans), FIFA can now direct a club or association to implement a prevention plan;

The new FDC also makes a clear stand against homophobia (Art. 13.1, reference to “sexual orientation”), even though FIFA has, in the past, sanctioned associations (particularly from Latin America10) for homophobic chanting by fans.

Individuals who have been the direct addressees of potential discriminatory behaviour now have the ability to make a “victim impact statement”, allowing FIFA to hear directly from the victims. As stated by Piara Powar, Executive Director of the Fare Network, “allowing an impact statement for victims of abuse is a very new and welcome step…In the past some players have felt let down by the action taken, when facing racial abuse from crowds or other players, for example. This regulation clearly recognises their experience and offers them the opportunity to have a direct impact on disciplinary procedures11”; and

Referees now have the ability to abandon (Art. 13.4) a match on account of racist and discriminatory conduct. If abandoned, the match shall be declared forfeited, resulting in a minimum 3-0 loss for the culpable team.

Enforcement of financial and non-financial decisions

Under the 2017 FDC regime (Art. 64), FIFA had the power to enforce financial decisions issued by a FIFA body or the Court of Arbitration for Sport (CAS) upon appeal, against clubs, players or coaches who failed to respect such decision.
Notably, it was only CAS cases upon appeal which could be enforced by FIFA, the intent presumably being to enforce cases that made their way up to CAS through the FIFA judicial process. As such, ordinary cases (i.e. disputes heard by the CAS in the first instance, rather than upon subsequent appeal)—though still enforceable through the New York Convention route—were unenforceable by FIFA, which provided little benefit to CAS litigants from the perspective of sporting sanctions.
With the new FDC, FIFA now has the ability to enforce ordinary CAS awards too; a welcome change for CAS (ordinary) litigants who can obtain sporting sanctions against their debtors for failure to respect an award in full or part (Art. 15.1).
For example, intermediaries (who previously fell outside the scope of the FIFA regime) would now have the ability to request for disciplinary sanctions against debtors (e.g. players or clubs) who fail to respect a CAS award rendered via an ordinary proceeding12 (although, with the imminent re-regulation of intermediaries by FIFA, decisions involving agents would once again be enforceable by FIFA anyway).
Further, under the 2017 FDC, the default sanction for clubs who failed to comply with FIFA or CAS (appeal only) was a deduction of points or relegation to a lower division, with the possibility of a transfer ban in addition (see for example, FIFA disciplinary action commenced against clubs from Qatar, UAE and Iran in 201813).
Under the new FDC, the position is reversed: if clubs fail to obey a decision passed by FIFA or CAS (appeal or ordinary), the default disciplinary measure would be the imposition of a transfer ban, with a points deduction or relegation a possibility, in the event of persistent failure, repeated offences or serious infringements. FIFA has found transfer bans to be the most effective enforcement measure against clubs14.
Finally, under the new FDC, FIFA has the ability to enforce decisions by imposing sanctions against the sporting successor of a non-compliant party. Therefore, for example, if a club, unable to fulfil its payment obligations under previous owners, is taken over, the new owners are required to comply with a decision of FIFA or CAS, else they too would be considered “non-compliant” and hence subject to appropriate sanctions (e.g. a transfer ban) under the FDC (Art. 15.4). As with other provisions in the new FDC, this is essentially a codification of CAS jurisprudence, as established in the case of Darwin Zamir Andrade Marmolejo v. Club Deportivo La Equidad Seguros S.A. & FIFA and Ujpest 1885 FC v. FIFA15.

Intermediaries

Under the new FDC, intermediaries now fall within the category of persons who are subject to the code (Art. 3). This was not the case under the previous regime and is a change that has perhaps been enacted with one eye on the proposed re-regulation of intermediaries, further to the recommendations by FIFA’s Football Stakeholders Committee16.
Particularly, intermediaries ought to be mindful of the fact that they are now subject to FIFA’s disciplinary measures, relating, for example, to forgery and falsification of documents and manipulation of matches. This means that in addition to financial sanctions, intermediaries can potentially be banned from footballing activity for prolonged periods.

Standard of proof

Article 97 of the erstwhile FDC set the standard of proof as the “personal conviction” of the members of the disciplinary panel.
While FIFA had not previously explained what “personal conviction” meant in practice, CAS panels have examined the question and equated this standard to the standard of comfortable satisfaction. This was held by the panel in Mohamed Bin Hammam v. FIFA17, who further applied the reasoning of the panel in Amos Adamu v. FIFA18, which held that:
“in practical terms, this standard of proof of personal conviction coincides with the “comfortable satisfaction” standard widely applied by CAS panels in disciplinary proceedings. According to this standard of proof, the sanctioning authority must establish the disciplinary violation to the comfortable satisfaction of the judging body bearing in mind the seriousness of the allegation. It is a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt”…the Panel will thus give such a meaning to the applicable standard of proof of personal conviction”.
FIFA has codified this CAS jurisprudence through the adoption of Article 35.3 of the new FDC, with the standard of “comfortable satisfaction” explicitly replacing that of “personal conviction”, perhaps with the intent to strike out any room for interpreting the scope and meaning of “personal conviction”.

Accessibility and transparency

In the interests of access to justice and transparency of the FIFA judicial process, FIFA has implemented the following measures:

Launch of FIFA legal aid which may benefit an applicant by:

releasing him/her from having to pay the costs of proceedings;

providing him/her with the opportunity to be represented by legal counsel on a pro-bono basis; or

FIFA covering the costs of his/her travel and accommodation, witnesses called to testify and travel and accommodation costs of pro-bono counsel, if selected (Art. 42.4).

The procedural costs of all cases before the Disciplinary Committee will be free of cost with reduced procedural costs for Appeal Committee cases (Art. 45).

Article 50.7 allows for the possibility of public hearings, at the request of the defendant in anti-doping proceedings, and at the instance of the chairperson of the disciplinary panel in match manipulation matters.

Decisions of the Disciplinary Committee and Appeal Committee have historically not been published. However, with the announcement of legal.fifa.com (not launched at the time of writing), FIFA intends to publish decisions passed by FIFA’s judicial bodies together with other useful legal resources19. This ought to aid parties in their preparation for cases before FIFA judicial bodies, while assisting in providing an understanding of the practicalities of the FIFA judicial process.

Expediency

The new FDC also aims to promote expediency and efficiency of disciplinary proceedings, through the introduction of two important mechanisms:

Ruling at the specific request of the accused party (Art. 50.8): As implemented by Article 67 of the Ethics Code, the new FDC has implemented a mechanism, similar to plea bargains, which allows an accused party to accept responsibility and request FIFA to impose a specific sanction. While FIFA is not bound to accept such sanction, this system, if used by the accused with honesty, ought to be effective in obtaining speedy decisions and shortening resolution timelines.

Proposal of sanctions by FIFA (Art. 54.3): On the flipside, the new FDC provides for the possibility for FIFA (in some instances) to propose sanctions on the basis of information on record but before disciplinary proceedings even commence. The relevant party then has the option to either accept or reject the proposed sanction, in which case disciplinary proceedings will be opened and measures imposed in accordance with the FDC. If this route is followed, the proposed sanction is not intended to influence or have an impact on the final decision arrived at by the Disciplinary Committee.

Conclusion

The new FDC is the latest in a line of sweeping reforms to the FIFA regulatory regime, with amendments to the Regulations on the Status and Transfer of Players (RSTP) effective as of June 2019 and another wave of RSTP amendments to come into effect in October 2019.
While it remains to be seen how this regulatory change will be implemented in practice, FIFA ought to be commended for taking measures to make its regulations more fit for purpose.

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About the Author

Tiran Gunawardena

Tiran Gunawardena is an Associate (Australian Qualified) in the sports law team at Mills & Reeve LLP.
Tiran specialises in international and domestic sports arbitration, with significant experience with proceedings before the Court of Arbitration for Sport (CAS) and regulatory matters in sport. He is dual qualified as an Australian solicitor and chartered accountant, and holds a Master in International Sports Law from ISDE (Madrid). Tiran is also an England Boxing and British Gymnastics Disciplinary Panel member. Prior to working at Mills & Reeve, Tiran spent almost 4 years working in the Corporate Tax and M&A team at PwC Sydney.
Tiran was selected by Who’s Who Legal as a leading sports lawyer in the UK in 2018.

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@Tiran_G

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Rustam Sethna

Rustam is an Indian qualified lawyer and sports law paralegal at Mills & Reeve, Manchester. He has recently completed a Master’s degree in International Sports Law from Instituo Superior de Derecho y Economía (ISDE), Madrid (2018 edition) and has previously gained 3 PQE as an Associate with AZB & Partners, one of India’s leading full-service law firms.



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