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Ched Evans: A Regulatory Perspective

Sarah Ellson
Following the furore over footballer and convicted rapist Ched Evans's attempts to return to the professional game, the Football Association ('the FA') has announced that it will continue to look at Following the furore over footballer and convicted rapist Ched Evans's attempts to return to the professional game, the Football Association ('the FA') has announced that it will continue to look at the issue of behaviour and attitudes within football. Others have called for the introduction of a code of conduct. We consider below how (and why) such a code would differ from the statutory schemes that apply to the likes of doctors and solicitors, whether the matter requires formal intervention by the FA, and what options are open to the FA as a self-regulating organisation.

Evans, who started his career with Manchester City and played for Sheffield United, was convicted of rape in 2012 and served half of a five-year sentence. Sheffield United retracted an offer to let Evans train following criticism from fans and sponsors; similarly a contract with Oldham Athletic fell through following a high profile campaign by those opposed to any such contract. Evans has already had an appeal against conviction rejected by the Court of Appeal. In December 2013 his legal team asked the Criminal Cases Review Commission to consider an application for his case to be heard by the Court of Appeal. According to the Commission’s annual report, even as a priority case, this could take 45 weeks to be allocated and another 18 for a provisional decision.

On 9 January 2014 Greg Dyke, the Chairman of the FA (the not for profit, governing body of English football) issued a public statement saying that the FA presently has no legal or regulatory basis to intervene in Evans's attempts to join a club. Dyke's statement followed calls from members of the public, press and politicians for the FA to take action.

Can the FA prevent Evans's return?

As a self-regulating (non-statutory) private members organisation, the FA sets its own rules (the Laws of the Game, the Rules of the Association ('the Rules') and the Regulations for Football Association Disciplinary Action ('the Regulations')). It has no inherent authority over players beyond the contracts or implied agreement it has with them. The FA's Strategic Plan sets out a commitment to protecting football's values and integrity and its website advises clubs to adopt Codes of Conduct, although it candidly notes: 'Some are successful; some are forgotten and not acted upon'. Since October 2012 senior England squad players have been issued with a players' code of conduct which places special emphasis on the "privileged position" of the office of national captain and formally grants the Club England board power of veto to strip any individual of the honour.

The FA's Rules provide that all players (widely defined, including a non-contracted player like Evans) are subject to standards of general behaviour requiring them to 'not act in any manner which is improper or brings the game into disrepute or use any…. violent conduct… threatening, abusive, indecent or insulting… behaviour' [Rule E3]. Committing rape would appear to satisfy this prohibition (particularly in circumstances where a number of players have been disciplined for off the pitch indiscretions on social media). The Regulations also grant a Regulatory Commission the power to impose, inter alia, a fine, permanent suspension or such further penalty as it considers appropriate. As stated above, though there have been calls to suspend Evans under this provision, the FA has said that having examined the legal requirements, there is currently no basis for it to take action.

It is also noteworthy that the FA's purpose and jurisdiction are not on the same footing (nor do they exist for the same reasons) as statutory regulators. Statutory regulators usually establish standards of proficiency governing entry into the profession, maintain a register of those who meet the required standard, set standards of conduct, ethics and competence with which members must comply and investigate and take action in relation to concerns around fitness or suitability for membership of the profession.

Should the FA intervene or develop an all player Code of Conduct?

One of the key functions of disciplinary proceedings in professional regulation is to maintain the reputation of the profession but at the core of this function is the absolute need to be able to trust certain professionals, solicitors, accountants and healthcare professionals for example. Clients, service users and patients have to be able to trust these professionals, to be candid and open with them, in order to receive the right advice or treatment. Disciplinary powers focus on risk and trust, rather than censure.

In his statement, Dyke acknowledged the unique privileges and responsibilities that come with being a participating member of the national game. A professional footballer's (financial) privileges are clear. The footballer's responsibilities are more opaque. It may be argued that as a figure in the media spotlight, footballers have responsibilities to other players, to fans and even to the public at large. Much mention has been made of the role model status of today's senior league footballers. However a distinction can be drawn between professionals in whom the public must place their trust and whose 'good character' is fundamental to this trust, and the influential status of high profile sports men and women.

In professional regulation a criminal conviction often guarantees rejection or suspension from the profession, at least 'until [the professional] has satisfactorily completed his sentence' (Dr Obukofe v General Medical Council [2014] EWHC 408 (Admin).) A conviction is very often viewed as directly relevant to this professional's suitability and trustworthiness in performing his or her job, notwithstanding that it may have arisen from conduct in the professional's private life. Those on the sex offenders register are also barred from doing particular jobs known as "regulated activity" and typically jobs such as teaching, social work or health care that would involve working with children or vulnerable adults. In the absence of any pressing public interest in footballers being trustworthy, or automatically having any role with youth teams, it is perhaps harder to argue that a footballer's conviction is relevant to his or her suitability as a footballer.

Many will feel that 'it cannot be right' that footballers, often characterised as role models for young people, can continue to enjoy high wages and adoration on the pitch, even when they have received a criminal conviction. However, there are many who feel that this is a moral argument that is less suitably dealt with under a regulatory framework than in the 'court of public opinion'. To date, public pressure, the voice of some fans, the concerns of certain Board members and a number of key sponsors have scuppered Evans's attempts to re-join the professional game, causing clubs to back down and retract their offers to him. In this way, market forces fulfil a quasi-regulatory role and give effect to more 'moral' arguments that professional regulatory frameworks tend to avoid.

Perhaps the main disadvantage of relying on public opinion is its inconsistency. The public treatment of celebrities convicted of criminal offences could be described as fickle. Public opinion did not prevent Oldham Athletic from signing Lee Hughes in August 2007 after he served half of a six-year sentence for causing death by dangerous driving. Whereas Evans has offered a tepid apology for the 'effects' of events, Hughes' full and unreserved apology was a clearer act of public contrition which may have swayed public opinion, supporting suggestions that Hughes had been rehabilitated, At the same time, it could be argued that the difference in treatment stems in part from the fact that Hughes was convicted of a less emotive crime, rather than because he offered a more heartfelt apology. Other role models such as actors and musicians (and even sportsmen such as boxers) frequently continue to enjoy success and popularity following convictions for criminal offences.

As the FA continues to consider and discuss guidance or a code of conduct to govern players' behaviour off the pitch, the wider topic will be whether footballer should be considered "professionals", and what (and who) should be at the heart of determining their suitability to play the 'beautiful game'.

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