Last week FIFA banned the Uruguayan footballer Luis Suarez for four months and nine internationals for biting Italy defender Giorgio Chiellini. However, we have heard little on its legal consequences- especially at Liverpool - say Drs Hannah Quirk and Elaine Dewhurst, from The University of Manchester’s School of Law.
Luis Suarez, banned by FIFA for biting an opponent
Even those without the slightest interest in football will probably be aware that Uruguay striker Luis Suarez has (for the third time) bitten an opponent during a game. Biting someone at work would normally have far-reaching consequences in terms of employment law, personal injury claims and criminal law. Most people would expect their employers, and perhaps even the police, to take action. Professional sport tends to play by its own rules, however.
In the UK, an employee who bit a colleague would normally face immediate dismissal for gross misconduct. Even though Suarez committed the assault while playing for his national team, his main employers, Liverpool FC, could dismiss him for bringing the company into disrepute. Of course, this is not simply a question of law; Liverpool is also a business. Having spent over £20 million acquiring Suarez, the club would lose a potential £70 million transfer fee if it dismissed him.
Though unlikely, Liverpool might be able to mitigate some of the loss by suing Suarez for breach of his employment contract. His inability to play for Liverpool during the 4-month ban imposed on him by FIFA could constitute frustration of his employment contract. Liverpool could sue Suarez for damages relating to the wasted cost of acquiring him, replacing him and damage to their commercial brand. Previous breach of contract cases against players have generally yielded only small damage awards for football clubs. The highest award was in 2008 when Adrian Mutu was ordered to pay Chelsea £14 million following his 7-month ban for failing a drugs test.
If the incident had occurred in the UK, Chiellini (the bitten Italy defender) might have had an action against Suarez for battery (a trespass to the person for which it is not necessary to show damage) or a more general personal injury claim based on negligence against both Suarez and the Uruguayan Federation (AUF). A personal injury claim against Suarez would be fairly straightforward - he clearly acted negligently and recklessly - but any damages would be minimal as the injury was not severe. A claim for vicarious liability against the AUF would be more difficult. The AUF is technically Suarez’s employer during the tournament, but it is questionable whether Suarez was acting in the course of employment. While tackles and fouls are considered to be part of the game, biting is not.
It is unusual for criminal action to follow incidents that take place on the sports field. Manchester United’s Roy Keane was interviewed by the police following his infamous “take that you c***” tackle on Alf-Inge Haaland, but no charges followed. Tackles that cause serious injury are rarely dealt with through the courts, in part because it is thought that fear of prosecution would destroy the essence of the game. A Sunday League player was the first footballer to be jailed for a tackle in 2010. While contact sport players take to the field accepting the risk of injury, this does not mean that they consent to any physical challenge. Players are expected to abide by the rules of the game. Those tackles that have resulted in prosecutions have been clearly intentionally violent or have had additional aggravating features.
Chris Kamara was the first player to be convicted of a violent on-field offence (grievous bodily harm) in 1988 for breaking his opponent’s cheek with his elbow. Even conduct that falls clearly outside the rules such as Marouane Fellaini’s head butt on an opponent is rarely pursued. Duncan Ferguson was the exception when he was sentenced to three months imprisonment for headbutting an opponent in 1995.
The test for a prosecution is whether there is sufficient evidence to provide a realistic prospect of conviction and whether a prosecution would be in the public interest. Merseyside Police decided not to pursue Luis Suarez’s bite on Chelsea's Branislav Ivanovic in 2013 because the injured player did not wish to make a complaint. A prosecution could have been brought without this. There was clear television footage of the incident (which Suarez had admitted) that could have been used as evidence. The public interest seems clear in discouraging such behaviour and there were anecdotal reports from parents of copycat incidents in schools.
The onus should not be on the player to make a complaint. There is a culture in sport that it is inappropriate to involve the authorities – the nadir of this being FIFA President, Sepp Blatter’s 2011 suggestion that racism should be settled with a handshake. England captain John Terry was acquitted of racially abusing Anton Ferdinand in 2012 but for years racist or homophobic abuse has been dismissed as ‘banter’. Graeme Le Saux has detailed the damaging effects such abuse had on him and the lack of support he received in challenging it. In any other workplace, an employer has a duty to act to stop this and often the police would be involved.
Certain types of crime have historically been dismissed as ‘not real crime’ – domestic violence; bullying in schools or the armed forces; or ‘white collar’ crime. In employment law, certain groups of workers have never been adequately protected. Gradually these no-go areas are being challenged. There comes a point where the public interest in punishing such actions outweighs any potential damage to the sport. The latest Suarez incident highlights a need to deal more robustly with errant behaviour. The law provides numerous mechanisms to do this. Not everything should be left on the field.
Notes for editors
Drs Hannah Quirk and Elaine Dewhurst are available for comment
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