The Luis Suarez biting affair: appeal process & wider legal implications

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

The story so far

At the time of writing (29 June 2014), this is the current state of play:

• On Tuesday 24 June 2014, during Uruguay’s last group match against Italy, Luis Suarez was involved in an incident with Italian defender Giorgio Chiellini which led to immediate allegations that Suarez had bitten Chiellini on his shoulder.
• Incidents of biting on the pitch by Suarez are not new. He was found guilty of biting an opponent whilst playing for Ajax in the Dutch league in 2010 and also more recently of biting Chelsea defender Branislav Ivanovic whilst playing for Liverpool in 2013.
• The FIFA Disciplinary Committee promptly charged Suarez with misconduct and Suarez had a limited window to respond in writing to the charges. The need to move quickly was to ensure the panel reached a decision before Uruguay’s next World Cup match so that any suspension took effect in the current competition.
• On the evening of Wednesday 25 June 2014 a 7 man FIFA Disciplinary Committee panel met and they issued their decision on Thursday 26 June 2014 by way of press release (with a fuller written decision to follow). They ruled as follows:

1. Suarez was banned for the next 9 competitive international matches. In practice this means, he would be banned for the rest of the World Cup and, depending on how far Uruguay progressed in various competitions was likely to miss most of the Copa America in 2015 and possibly some of the Copa America in 2016.
2. Suarez was banned from “all football related activity” for 4 months and also given a stadium ban for the same period. This means he was unable to be around the Uruguay squad in the World Cup and will not be able to train with his club team (or even watch them in their stadium) until after the end of October. For his current club Liverpool FC, this would mean missing 13 games and not playing until 1 November 2014. However, this part of the ruling does not, in principle, prevent a transfer to another club taking place. Further, once the 4 months has expired, Suarez would be able to play friendly matches for Uruguay and train with them pending expiry of his 9 game competitive match ban.
3. Finally, Suarez was fined 100,000 CHF (around £65,000).

• Under FIFA rules, parties have 3 days from a decision to notify their intention to appeal. Suarez and the Uruguayan FA notified their intention to appeal on Friday 27 June 2014 and have until Sunday 6 July 2014 to submit written reasons for the appeal.
• On Saturday 28 June 2014, Uruguay were eliminated from the World Cup (losing 2-0 to Columbia in the last 16 round).
• In due course, the FIFA Appeal Committee will issue its ruling and it is likely that Suarez will also have the right to make a final appeal to the Court of Arbitration for Sport (“CAS”).

This article looks at the likely prospects for any appeal and some of the wider legal implications for all affected parties.

The charges and the decision

Suarez was charged by FIFA with the following:

1. Assaulting an opponent (Article 48.1.d of the FIFA Disciplinary Code). 2. An act of unsporting behaviour towards another player (Article 57 of the FIFA Disciplinary Code).

The decision of the FIFA Disciplinary Committee was set out in a short press release. To date, we do not have access to the full written decision. However, it appears that copies have been made available to certain parts of the press. Based on reports, it seems as follows:

• Suarez denied the charges in full, claiming that there was no deliberate intention to bite Chiellini and instead Suarez simply lost his balance causing a coming together between his mouth and Chiellini’s shoulder. Anyone who has seen the footage of the incident is likely to agree that this defence strategy was always doomed and it has potential ramifications for the punishment (and the prospects for reducing the punishment) as we will see below.
• The disciplinary panel are reported to have concluded that the Suarez bite was “deliberate, intentional and without provocation”. It is likely that, in deciding on the punishment, the panel took into account Suarez’s past biting offences, the high profile nature of the game, and the fact that Suarez has denied responsibility throughout.

The maximum punishment available to the disciplinary committee would have been a 2 year worldwide ban and/or up to 24 matches. Therefore, the ruling of a 4 month ban and 9 competitive international matches is a serious punishment but not close to the maximum available.

The appeal process

There are potentially two levels of appeal: first, to the FIFA Appeal Committee and then from there to the CAS.

FIFA appeal committee

The FIFA Appeal Committee is a separate body to the FIFA Disciplinary Committee. Given the impact of the ban on Liverpool (see below) there have been suggestions that Liverpool may seek to join in any appeal process. However, it does not appear that under FIFA rules Liverpool has any standing to join the FIFA appeals process as a party. Under Article 119 of the FIFA Disciplinary Code, only the following parties have a right of appeal:

• “Anyone who has been a party to the proceedings before the first instance and has a legally protected interest in justifying amendment or cancellation of the decision.” Liverpool FC may be able to demonstrate a legally protected interest in justifying amendment to the decision but as they were not a party to the initial charge they have no automatic right to join as a party to any appeal.
• Football associations affected by the decision may appeal. Here the Uruguayan FA has appealed on Suarez’s behalf to show their support. It is arguable whether the English FA (being the country where Suarez plays his club football) would have a similar right to join in (perhaps on behalf of Liverpool) but this has not happened and in the circumstances it seems highly unlikely the English FA would attempt to intervene.

It has been well reported that the filing of an appeal does not suspend the punishment (save for the payment of a fine). For this reason, the Uruguayan FA were unable to free up Suarez to play against Columbia on Saturday by filing their notice of appeal on Friday and all of the football related sanctions remained in place.

The most important consideration is the grounds of appeal. The FIFA Code provides (Article 121) that an appellant may object to inaccurate representations of the facts and/or the wrong application of the law. Taking each of these in turn:

• It seems highly unlikely that any appeal committee is going to disagree with the disciplinary committee and find that the alleged bite was not deliberate. The footage is available to all and in that sense the factual background should be pretty clear-cut. Indeed it will be interesting to see whether the Uruguayan FA makes any attempt to challenge the disciplinary committee’s findings on the facts and instead focuses its submissions on the severity of the punishment.
• In relation to the second limb of challenge (wrong application of the law), this is unlikely to offer Suarez and the Uruguayan FA an easier route to change the decision of first instance. Whilst we await the full written decision, it is unlikely that in a case such as this the disciplinary committee will have wrongly applied the law. Suarez and the Uruguayan FA may take issue with the severity of the punishment but ultimately that is a discretionary ruling within the parameters of FIFA’s rules (which provide for a maximum ban of 2 years and/or 24 matches). The problem that the Suarez team faces it that this is such a unique situation there is no comparable precedent by which the punishment can be benchmarked as being overly severe or otherwise (still less wrong in law). Perhaps the best the Uruguayan FA can do is rely on Chiellini’s comments that he felt the punishment was “excessive” but this provides no firm basis for a successful appeal.

Notwithstanding the above, the FIFA Appeal Committee does have the power to reduce the punishment and it may be that a small reduction will be made in an attempt to draw a line under matters and discourage a further appeal to CAS (and there is a reduced ruling that could be made that would prevent an appeal to CAS – see below). We shall have to wait and see.

There is no time limit on the Appeal Committee making its decision and now that Uruguay have been eliminated from the competition, we may see FIFA seeking to draw things out to try and ensure attention is firmly focused on the ongoing competition rather than disciplinary appeal rulings.

Court of Arbitration for Sport

As the final potential appeal destination it is worth commenting briefly on CAS.

CAS is a private international arbitral institution based in Switzerland that was originally established by the International Olympic Committee in 1984 and now decides final appeals from many different sports. CAS awards are final and binding (subject to the right to have very limited, mainly procedural issues, judicially reviewed before the Swiss Courts). The CAS tribunal undertakes a fresh review of the case and has the freedom to issue a new decision. For the purposes of the World Cup, CAS has set up an ad hoc division and has published “Arbitration Rules For The FIFA 2014 World Cup Final Round”.

Article 67(3) of the FIFA Statute says that CAS does not deal with:

• Violations of the “Laws of the Games”
• Suspensions of up to 4 matches or up to 3 months.

The “Laws of the Game” are essentially the rules of football and this provision appears to be aimed at ensuring that red card offences are not routinely capable of being appealed to CAS. However, it may at least give FIFA the option if it were so minded of arguing that the Suarez incident is in substance a violation of the Laws of the Game and should not be capable of being appealed to CAS.

Further, the threshold in relation to the level of punishment means that if the FIFA Appeal Committee wanted to draw a line under matters they could reduce the Suarez ban to 3 months and 4 matches and Suarez would have no right to appeal to CAS.

Wider legal implications

Outside of the ongoing FIFA appeal process, there are a number of other wider legal issues at play.

Liverpool FC

For reasons explained above, Liverpool FC have found themselves in a very difficult position having to react to an unprecedented event with limited legal rights to become involved. Given the very short timeframes within which Suarez had to respond to the charges and the fact that the incident occurred on national team duty it appears unlikely that Liverpool will have had any meaningful input into the process. However, they are now stuck with the decision.

Whilst hindsight is a wonderful thing it has to be questioned whether the Uruguayan FA tactic of an “all or nothing” defence (the incident being an accident) ever had any realistic prospect of success. Surely a much better approach - as followed by Suarez/Liverpool in relation to the Ivanovic incident - would have been to apologise unreservedly to all concerned and to agree to seek professional help for his problems. This would almost certainly have resulted in a lesser punishment (in circumstances where some form of punishment was inevitable).

However, Liverpool are saddled with the result of the Uruguayan FA’s tactics and they are the disproportionate losers in the end. Whereas Suarez misses 9 competitive matches for Uruguay, he misses 13 for Liverpool and is unable to even carry out any training with his team mates until the end of October. No doubt some form of written submission from Liverpool will accompany the Suarez appeal to the above effect (even if Liverpool are not a formal party to any appeal).

Liverpool’s relationship with Suarez is a delicate one. As Liverpool’s best player and the Premier League player of the year last season he is a very valuable asset (potentially upwards of £80m). However, there are ongoing rumours of both Real Madrid and Barcelona circling and a transfer could have been in the offing this Summer regardless of the present incident. The eventual make up of any ban will likely impact on Suarez’s market value and whether a transfer takes place at all. As things currently stand, having a player that cannot play club football (or even train) until the end of October will reduce his market value – and may well put off would-be suitors. However, if the ban is reduced such that it reduces the impact on club football but remains a 9 match ban for Uruguayan international games, the effect may be that Suarez’s value is not reduced (and could be increased – on the basis that any domestic club would have a player available to them but without the added pressures and risks associated with Suarez playing competitive international games across the world for a year or so).

Other options available to Liverpool would be to fine Suarez for his behaviour to try and recoup some of the money they would otherwise be paying him in wages notwithstanding his ban. Following the Ivanovic incident Suarez was fined by Liverpool with the fine donated to charity.

An even more extreme step would be to sack Suarez as Chelsea did with Adrian Mutu following his cocaine use – eventually suing Mutu for damages in his individual capacity for the financial damage incurred by Chelsea in losing such an expensive asset. However, given Suarez’s value to Liverpool and the uncertainties associated with them ever recovering a substantial amount from bringing a claim against Suarez in his individual capacity this extreme step is very unlikely.

Whilst there are many moving parts to this situation, it seems Liverpool’s likely strategy will be to play a supporting role in any appeal stressing the disproportionate impact that the ban has on Liverpool FC with a view to getting the current ban reduced. The end result will then likely have a direct impact on Suarez’s future as a Liverpool player and any decision as to whether Suarez stays or goes. This turns on how long FIFA will take to decide the appeal and whether a further appeal is made to CAS – all during the months when transfer activity will be taking place. The longer this process takes, the more likely it is Suarez will remain at Liverpool.

Suarez

The incident will have an immediate financial impact on Suarez. He has already been dropped by one sponsor (888poker) and other corporate sponsors will be reviewing their position.

He may face some kind of fine by Liverpool and he will miss out on associated match bonuses until November.

It looks unlikely Suarez will be favoured for lucrative sponsorship deals into the future (save perhaps for specialist teeth related products once the dust has settled).

Comment & Conclusions

The Suarez incident is unprecedented. FIFA have acted quickly to issue a punishment that is severe but could have been worse.

In all likelihood the punishment would have been less onerous had Suarez admitted responsibility and made a full apology. However, that was not the course pursued by Suarez and the Uruguayan FA who instead decided on an “all or nothing” defence of denying that a deliberate bite had taken place notwithstanding the pretty damning video evidence. Having pursued this high stakes gamble, Suarez, the Uruguay FA (and Liverpool FC) are now stuck with the consequences. Those consequences are that at the appeal stage there are no obvious grounds on which the disciplinary committee’s discretionary punishment can be successfully challenged or should be softened. Suarez (and particularly Liverpool FC) would have been better served by admitting the incident and focusing on mitigating the original punishment. It remains open to the FIFA Appeal Committee to amend the punishment. However, if it is eventually reduced it is likely that this will owe more to a political desire to draw a line under the incident in the hope Suarez will not pursue the matter to CAS rather than the overall legal merits of any challenge by the Suarez team.

The timing of the appeal process (both at a FIFA level and before CAS) is uncertain and this will have an important impact on Suarez’s future as a Liverpool player since it is unlikely Liverpool will want to sell (or a future club acquire) Suarez until the length of the ban is finally settled. In the meantime, the Suarez team will be dealing with the fall out from sponsors’ concerns and the Liverpool team will be considering potential action against Suarez to avoid paying his full wages during the length of any ban – although this will be a particularly delicate topic and much will depend on Liverpool’s overall desire to maintain relations with their best player and ensure he stays at the club.

Quite how all of these different moving parts will play out will be revealed over the coming weeks and months.

An update on the case can be found here: Suarez incident legal postscript: apology constitutes second bite of the cherry