Internationally renowned sports law experts gathered this week at the Asser Institute  in The Hague to follow a week-long educational programme on international sports law. The timing is excellent as of course the World Cup in Brazil is going on and in one of the most remarkable sports moments of years to come Uruguayan striker Luis Suárez bit Italian defender Giorgio Chiellini on his shoulder. The incident has provoked outrage across the globe and has led to all kinds of observations in social media, some quite funny. As Mike Gilleran (Executive Director of the Institute of Sports Law and Ethics) notes, “there’s nothing funny about the realization that a deeply troubled man has disgraced himself on his sport’s largest stage. Clearly, Suárez needs help, and soon”. The FIFA Disciplinary Committee has banned Suárez for nine official matches and from taking part in any kind of football-related activity for a period of four months. “Such behaviour cannot be tolerated on any football pitch, and in particular not at a FIFA World Cup when the eyes of millions of people are on the stars on the field. The Disciplinary Committee took into account all the factors of the case and the degree of Mr Suárez’s guilt in accordance with the relevant provisions of the FIFA Disciplinary Code, Claudio Sulser said (chairman of the FIFA Disciplinary Committee).

Let’s look at the FIFA decision and its relevant provisions.

Suárez is regarded as having breached art. 48 par. 1 lit. d of the FIFA Disciplinary Code (FDC) (assault), and art. 57 of the FDC (an act of unsporting behaviour towards another player).

Art. 57:

Anyone who insults someone in any way, especially by using offensive gestures

or language, or who violates the principles of fair play or whose behaviour is

unsporting in any other way may be subject to sanctions in accordance with art. 10 ff.

The subjective  nature  of violating the principles of fair play or unsporting behavior means FIFA have a large amount of room for manoevre when deciding if an individual is in breach of this article. Arjen Robben admitted diving in the World Cup game against Mexico but FIFA decided not to take action. In this case Suárez’s action can be considered unsporting and violating the principles of fair play.

Art. 48 par. 1 lit. d and par. 3:

1. Including the automatic suspension incurred in accordance with art. 18 par.

4, any recipient of a direct red card shall be suspended as follows:

d) at least two matches for assaulting (elbowing, punching, kicking etc.)

an opponent or a person other than a match official;

3. The right is reserved to punish an infringement in accordance with art. 77 a (the disciplinary committee is responsible for sanctioning serious infringements which have escaped the match officials' attention)

There’s no argument that the bite can’t be considered as an assault. Using video technology it was clear for all to see that Suárez bit Chiellini leaving a mark on his shoulder. While his action did generate widespread revulsion and can be considered the lowest of the lows, it was a physical, unlawful assault not causing injury.

Criminal charges

If the conduct of Suárez was that bad, then why is he not criminally charged?

In football players get their legs broken by tackles from behind or with legs extended while the victims are out of football for a long period. In the Netherlands Rachid Bouaouzan reached the Dutch news headlines due to a heavy foul on Niels Kokmeijer. Kokmeijer's leg was broken badly and he was subsequently forced to retire from professional football. His club Sparta Rotterdam suspended Bouaouzan for the rest of the season, which was more than the 10 match ban the Dutch football association awarded him. Besides that he was taken to court by the Dutch government for battery, a unique moment in Dutch football history. Bouaouzan was sentenced to a conditional six months in jail.

There are also numerous incidents where the conduct of NHL hockey players on field has resulted in criminal charges. Most recently, Todd Bertuzzi of the Vancouver Canucks was criminally charged with assault causing bodily harm and faced up to one and a half years in prison. Bertuzzi later pled guilty to the charge and was sentenced to 80 hours of community service and one year’s probation. Former NHL hockey player Kevin Miller was suspended for 8 games by the Swiss hockey league for assault causing bodily harm, but in a civil lawsuit ended up with a judgment in the amount of 1 million Swiss Francs against him.

Some journalists have looked at the Suárez's case from a criminal law angle, where a bite would be considered as an assault violating Chiellini’s physical integrity, leading probably to a sentence of community work or a suspended sentence with in Suárez’s case most likely some kind of treatment. However, in my opinion the disciplinary rules of FIFA or national football associations and civil law offer enough possibilities for punishing someone; only in extreme cases like the ones mentioned above criminal law should be called upon. Looking at article 48 of the FDC violent conduct is seen as serious infringement so the FIFA could suspend Suárez for nine official matches, certainly if you look at his track record (Suarez has twice been banned for biting opponents. In 2013, he was banned for 10 matches for biting Chelsea's Branislav Ivanovic and in 2010 he was given a seven-game ban while playing for Ajax for biting PSV Eindhoven's Otman Bakkal). This FIFA match ban applies only to international matches, not to domestic club matches.

n_liverpool_fc_luis_suarez-5483766Art. 22:

A person may be banned from taking part in any kind of football-related activity (administrative, sports or any other).

FIFA banned Suárez from taking part in any kind of football-related activity for a period of four months which does affect domestic club matches. Although it is not clear if FIFA took into account his previous track record, it is clear FIFA set an example. It is not just a suspension from playing in competitive matches for Liverpool (or if the transfer rumours are correct Barcelona) but also a stadium ban and it prohibits Suárez even from training with his club.

“This is a draconian measure that is used for match-fixing and other integrity/corruption offences”, Kevin Carpenter notes (a sports lawyer, consultant and member of the editorial board for LawinSport). “There has not been a case to date where FIFA has applied article 22 to serious on-field misconduct offences. Indeed, most recently, Croatian player Simunic was banned for 10 games for a racially aggravated gesture after a play-off match for the tournament, but the ban still only applies to international fixtures”.

Appeal

The 4 months sanction however has major repercussions for his club Liverpool, as he will miss a few Champions League group games, one League Cup game and 9 Premier League games. Furthermore the ban and his track record likely means Suárez’s transfer value has fallen, although strangely it does not affect a transfer itself, FIFA later announced.  Interestingly, as sports lawyer Daniel Geey writes, “Only those that were a party to the initial decision and have a legally protected interest in amending or overturning the initial decision may lodge an appeal (art. 119). This would suggest that Liverpool would not have standing to become involved as they were not a party to the initial decision. The Football Association (the FA) has the ability to appeal the Suárez sanction on Liverpool’s behalf (art 119 (2)), but it is unlikely that the FA would ask for a more lenient sanction for a player who scored the goals that effectively sent England home and whose disciplinary body has already banned Suárez for 10 games for his previous bite on Ivanovic”.

In my opinion an assault committed in a World Cup game playing for his country, should not affect domestic club football. The Appeals Commission should on the other hand be allowed to decide that Suárez needs to follow compulsory psychiatric treatment otherwise this bite won’t be his last one.

Update 10 July: The FIFA Appeal Committee has decided to reject the appeals lodged by both the Uruguayan player Luis Suarez and the Uruguayan FA, and to confirm the decision rendered by the FIFA Disciplinary Committee on 25 June 2014 in its entirety. The relevant decision is not yet final and binding, i.e. an appeal to the Court of Arbitration of Sport (CAS) is still possible (cf. art. 67 par. 1 of the FIFA Statutes) by the player and/or the Uruguayan FA, subject to certain conditions.

Update 14 august: The Court of Arbitration for Sport upheld Luis Suarez's four-month ban for biting an opponent at the World Cup, but cleared him Thursday to train with Barcelona

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