Tonev: the appeal panel's verdict in full

A Scottish Football Association appeal tribunal threw out the appeal after the on-loan Aston Villa winger was earlier banned over an incident involving Aberdeen full-back Shay Logan.

The SFA has published the report of both panels who examined the case.

Scottish Football Association

Judicial Panel Appellate Tribunal

Appellant: Aleksandar Tonev

Respondent: SFA Compliance Officer

Appeal Hearing 4 December 2014

Hampden Park, Glasgow

Tribunal Members: The Right Honourable Lord Bonomy (Chairman), James Hastie, Alan Dick

Counsel for appellant: Richard Keen QC

In attendance:

Aleksandar Tonev

Liam O'Donnell Solicitor

Michael Nicholson Company Secretary of Celtic Football Club

John Collins Assistant Manager Celtic FC

Bulgarian Interpreter

Counsel for respondent: Aidan O'Neill QC

In attendance:

Tony McGlennan SFA Compliance Officer

Neeraj Thomas Solicitor, Burness Paull LLP

Andrew McKinlay SFA Director of Football Governance and Regulation

Also in attendance:

Secretary of Appellate Tribunal

Background

[1] A notice of complaint was issued by the Compliance Officer to Aleksandar Tonev, the appellant, arising out of a match which took place at Celtic Park between Celtic FC and Aberdeen FC on 13 September 2014.

The complaint alleged that the appellant had breached Rule 202 of the Disciplinary Rules of the Scottish Football Association (SFA) set out at Annex A of the Judicial Panel Protocol, by committing "Excessive Misconduct by the use of offensive, insulting and abusive language of a racist nature". The notice set 9 October as the date for the Principal Hearing. On 26 September 2014 Liam O'Donnell, solicitor, wrote to the Compliance Officer on behalf of the appellant to state that he "strongly denies" the alleged breach of Rule 202 and that he would be representing him at the hearing. Thereafter the hearing was rearranged for 30 October.

[2] Mr O'Donnell duly appeared with the appellant at the hearing on 30 October which we understand lasted seven hours. The crucial question for the three-man Judicial Panel was whether, following a heavy challenge by the black Aberdeen player, Shaleum Logan, and further contact with him by Logan's arm, the appellant abused Logan by calling him a "black c***". Evidence was given by these two players, the referee, the Aberdeen captain, Mark Reynolds, the Aberdeen manager, Derek McInnes, and the Celtic assistant manager, John Collins. The panel also had before them the referee's report of having the matter drawn to his attention, the statements of Logan, Reynolds and McInnes, and the statement of the Aberdeen Football Operations Manager, Steven Gunn. In addition they viewed four video clips reflecting events in the match.

[3] The Judicial Panel issued their determination and the Written Reasons therefor on 6 November 2014. They held it established that the appellant did direct the expression "black c***" at Logan and decided to impose a sanction of a seven-match suspension.

[4] The appellant now challenges both the finding that he breached Rule 202 and the length of the suspension. In his Notice of Appeal the appellant relies on two of the Permitted Grounds of Appeal provided for in paragraph 14.8 of the Judicial Panel Protocol in challenging the determination that he breached the rule: firstly, that the Tribunal failed to give him a fair hearing; and secondly, that the Tribunal issued a determination which it could not properly have issued on the facts of the case. The Ground of Appeal stated in relation to the period of suspension imposed is that it is excessive.

[5] All three grounds raise points of law. While it is necessary to review the whole facts of the case to decide upon each of these grounds, that review has been based on the factual findings made by the Disciplinary Tribunal. They observed the witnesses, heard their evidence, reviewed certain documents and video clips and deliberated before making their findings and the ultimate determination. This appeal is not a rehearing of the case where the evidence is led again or additional evidence is presented. As is standard practice in such cases, the appeal has been conducted throughout on the basis of the findings made by the Disciplinary Tribunal.

[6] Rule 202 is in the following terms: "No player shall commit Excessive Misconduct at a match, including committing offences in the Schedule of Offences in Annex C, in respect of which there is aggravation by any factor, (including but not limited to prolongation of the incident; combination of different offences; continued use of offensive, abusing and/or insulting language and/or behaviour; calling a match official a cheat and/or calling a match official's integrity into question; failure to comply with a match official's requests; adoption of aggressive behaviour towards a match official; any racist, sexual, sectarian and/or otherwise discriminatory element; and the degree of any physical violence); and/or by committing Unacceptable Conduct". In this case the offence in Annex C was "offensive, insulting or abusive language" and it was allegedly aggravated by a "racist element".

Submissions of the parties

[7] Richard Keen QC presented his submissions in support of both grounds challenging the determination together because, he said, they turn upon the same factual matrix and both relate to the way in which the Disciplinary Tribunal addressed the standard of proof. It is well recognised that sporting disciplinary procedures are not criminal proceedings where guilt has to be established. Determinations do not fall to be made on the basis of proof beyond reasonable doubt, but rather on the basis of proof on the balance of probabilities. However, it was Mr Keen's submission that the more serious the allegation or its consequences, the greater is the burden of evidence required to prove it on the balance of probabilities. The issue, therefore, came to be whether the Disciplinary Tribunal had failed to recognise that and assess the evidence to the proper standard. In his submission, the Tribunal had failed to recognise and apply the weight of the burden of evidence required to prove the complaint on the balance of probabilities where the appellant's contention was that Logan had been mistaken.

[8] In Mr Keen's submission reference was made to the opinions of Lords Prosser and Penrose in Mullan v Anderson 1993 SLT 835 at 846/847 and 851 and the opinion of Lord Hamilton in First Indian Cavalry Club Limited v HM Commissioners for Customs and Excise 1998 SC 126 at 138. Mullan involves a claim for damages in which an allegation that the defender had committed murder had to be proved on the balance of probabilities. In both that and First Indian Cavalry Club¸ relating to action taken for the purpose of evading VAT, it was recognised that the nature of the matter to be proved is a material circumstance to be taken into account in considering whether it has been proved on a balance of probabilities. Mr Keen contended that in this case, in which the only witnesses who could hear what had been said were the appellant and Logan, it was not sufficient for the Disciplinary Tribunal to simply accept Mr Logan's account and on that basis hold the complaint proved. They required to go further. In light of the unusual nature and the gravity of the allegation and the consequences for the appellant, they were bound to then give specific consideration to whether in all the circumstances the evidence was sufficiently cogent to establish the complaint to the required standard.

[9] Mr Keen further submitted that the written submissions of the Compliance Officer in opposition to the appeal demonstrated the same error at paragraph 5.9, where it was submitted that, the Disciplinary Tribunal having found unequivocally in favour of the credibility and reliability of Mr Logan as against the appellant, that was an end of the matter. The fact that the Disciplinary Tribunal had approached the matter in that perfunctory way was also illustrated by paragraph 35 of their Written Reasons where they said that the Tribunal preferred the evidence of Mr Logan on what was said to him by Mr Tonev during the match, and followed that by beginning the next sentence with the word "Accordingly". There was nothing to indicate that the Disciplinary Tribunal had done any more than simply decide that, because they believed the evidence of Logan, the complaint was adequately proved.

[10] He explained that, even after the Tribunal had found Logan to be a credible and reliable witness, a number of questions remained to be addressed, such as how the weather conditions may have affected Logan's ability to hear what was said, the fact that the appellant is Bulgarian and that English is not his first language, and the unusual and improbable nature of the complaint. If they found no further assistance in addressing these questions, then they should have asked themselves whether the evidence they had accepted from Logan was sufficient on its own to establish such a serious allegation on the balance of probabilities. In so far as they did have regard to other evidence, it was evidence relating to Logan's subsequent actions and had no bearing on the question whether his account on its own sufficiently proved the complaint.

[11] Mr Keen's submission in relation to the period of suspension had two aspects. He initially contended that the aggravating factor that the offensive language was of a racist nature appeared to have been taken into account twice by the Tribunal. He further submitted that, having regard to the whole circumstances, including the words used, the player who used them, the context in which they were used and the fact that they were uttered only once and not repeated, the appellant's conduct fell to be regarded as falling at the Lower End of gravity of breaches of Rule 202 for which a suspension of up to four matches was appropriate. In this case that should be reduced by two matches on account of the mitigating factors to which the Tribunal had regard, in particular the short duration of the incident, the lack of premeditation, and the appellant's good disciplinary record.

[12] In response Mr O'Neill submitted that the case was simple and straightforward and invited the Appellate Tribunal to apply common sense and their experience of football (in the case of two members of the Tribunal) in deciding whether the Disciplinary Tribunal had erred. The only challenge to Logan's account had been that he was mistaken as to the words used. The Disciplinary Tribunal had the opportunity to observe how he responded to the challenge of his account by cross-examination and he had clearly stood up to that test. No reason why he may have been mistaken had been put to him. Logan's immediate reaction to the incident and his conduct thereafter in bringing the matter to the attention of his captain, the referee, club staff and other players had been consistent and provided support for the credibility and reliability of his account. The only basis on which he could have been held to be mistaken was the evidence of the appellant which had been rejected by the Tribunal.

[13] Much had been made in the course of the appellant's evidence about whether the appellant understood the meaning of the word "c***". What really mattered was the element of racism reflected in the use of the word "black" with which, as could be seen from paragraph 28 of the Written Reasons, he was plainly familiar. The circumstances of this complaint did not bear comparison with a case where murder had to be proved.

[14] Mr O'Neill invited the Appellate Tribunal to conclude that the core question for the Disciplinary Tribunal was whether they believed and were prepared to rely upon the evidence of Logan. The circumstances of the case were not such as to require some unspecific additional burden of evidence to establish the complaint. Under reference to the opinion expressed by Lord Brown in In re D (Secretary of State for Northern Ireland intervening) [2008] UK HL 33 [2008] 1 WLR 1399 at paragraphs 45 to 47, he submitted that the seriousness of the consequences of being found in breach of Rule 202 were irrelevant to the Disciplinary Tribunal's assessment of the balance of probabilities.

[15] In relation to the sanction imposed, Mr O'Neill simply submitted that it fell within the range of penalties that the Disciplinary Tribunal were entitled to consider and impose in the exercise of their discretion.

Decision on Finding of Misconduct

[16] To make a proper assessment of competing cases and reach a determination in favour of one on the balance of probabilities requires that all factors relevant to that exercise are taken into account, considered and weighed in the balance, and a determination made for which intelligible, rational and adequate reasons are given. In a situation such as the present, where there are two inconsistent accounts, it is not a question of deciding which on balance is the more likely version. Before a determination can be made

that a complaint of misconduct has been proved, the body making the determination must be satisfied that it is more likely than not that the subject of the complaint committed the act of misconduct alleged. That is what proving an allegation on the balance of probabilities means. It is both a matter of common sense, as suggested by Mr O'Neill, and consistent with the Scottish case law referred to by Mr Keen, that the burden of evidence required to determine the issue to that standard depends on the circumstances of the case.

[17] In paragraphs 33 to 35 of their Written Reasons the Disciplinary Tribunal set out in clear terms their reasons for finding the complaint proved. They stated that they believed Logan. Of much greater significance, however, are the fact that they also found him to be a reliable witness, and that they gave cogent reasons for doing so. They explained that he impressed them by the careful and measured manner in which he gave his evidence and by the clear and unequivocal terms in which he recounted what had happened. They were also favourably impressed by the consistency between his account of his immediate reaction and his subsequent actions in reporting what was said on the one hand and the accounts of these events given by the other witnesses and seen in the video evidence on the other. Their view of the evidence of Logan contrasted rather starkly with their view of the evidence of the appellant. Having made allowance for the impact of anxiety upon him, the Tribunal were unable to accept him as either credible or reliable. They have explained that he gave his evidence in a guarded and hesitant manner and that his evidence on the understanding of the language that had been used was particularly unsatisfactory. Their impression was of a witness giving a less than full account of his actual understanding of the language used. Surprisingly, in leading the appellant's evidence relating to his understanding of language, his solicitor appears to have concentrated on his lack of understanding of the meaning of the word "c***" which, it later emerged, he nevertheless knew to be a term of abuse. However, he did acknowledge, as recorded at paragraph 28 of the Written Reasons, that he was aware of the significance of using the adjective "black" in abuse directed at a black player. The Tribunal regarded his version of events as "an inherently improbable account".

[18] Although a Bulgarian interpreter was present at the Disciplinary Tribunal hearing and at the appeal hearing, the appellant gave his evidence in English before the Disciplinary Tribunal. That was consistent with the submission made by Mr O'Donnell to the Disciplinary Tribunal that the appellant spoke good English and would fully understand the proceedings. In the end, as can be seen from the preceding paragraph, the Tribunal took account of the evidence that was presented about the appellant's comprehension of the language in issue.

[19] Following their analysis of the competing accounts of events given by Logan and the appellant, the Disciplinary Tribunal stated that they preferred the evidence of Logan and introduced the remainder of their explanation of their determination with the word "Accordingly". The Appellate Tribunal do not consider that that formulation indicates that the Disciplinary Tribunal simply formed a view on the credibility and reliability of the evidence of Logan and took nothing else into account. It is plain throughout the record of the evidence in the Written Reasons that the Disciplinary Tribunal had the nature and gravity of the allegation in mind. Indeed in challenging the Tribunal's specific reference to the "seriousness of the offence" in explaining the sanction, Mr Keen's submission was that the misconduct alleged fell at the Lower End of the catalogue of possible contraventions of Rule 202. It is also clear from the Disciplinary Tribunal's account of the cross-examination of Logan that they proceeded on the basis that the appellant's case was that Logan was mistaken.

[20] The Appellate Tribunal also consider that the Disciplinary Tribunal took account of the other evidence in the case in an appropriate way as supportive of the credibility and reliability of Logan. They specifically make reference to doing so following the use of the word "Accordingly" in paragraph 35. His reaction at the time and the consistency between his account of events in the immediate aftermath of the incident and other evidence in the case were features that the Disciplinary Tribunal were entitled to regard as providing support for the credibility and reliability of his account of the incident.

[21] They had regard to the content of the evidence of both the appellant and Logan, the impression each made on them, Logan's reaction to the incident as observed by others, the degree of consistency between Logan's account of his reaction to the comment and his subsequent action in reporting it and that of other witnesses and what the video clips showed, and the nature of the incident. It is clear that the Disciplinary Tribunal took account of all relevant evidence, and left out of account irrelevant considerations (such as the weather conditions), in deciding whether the case had been made out on the balance of probabilities and were particularly conscious that a determination of excessive misconduct could only be made if that standard was satisfied. But in the end the crucial finding in the case was the finding that Logan was not only a credible witness but more particularly that he was also a reliable witness. Clear and entirely adequate reasons for making that finding and for concluding on the balance of probabilities that the appellant committed the alleged misconduct are set out in the Written Reasons. The Appellate Tribunal accordingly affirm the determination of the Disciplinary Tribunal that the appellant used offensive, insulting and abusive language of a racist nature in breach of Rule 202.

Decision on Sanction

[22] The Appellate Tribunal read paragraph 37 of the Written Reasons as stating that the racist nature of an abusive remark is, in the context of the whole catalogue of aggravating factors listed in Rule 202, a significant aggravating factor. There is nothing in that paragraph to suggest that the Disciplinary Tribunal were viewing the racist nature of the abuse as a yet further aggravation of excessive misconduct which itself consisted of abuse already aggravated by the racist nature of the remark. The sole issue in relation to sanction is, therefore, whether the punishment imposed was excessive having regard to the misconduct involved.

[23] The appellant's own statement in evidence that he would not use language of the kind in issue and his acceptance that there is no place for racism in football are eloquent testament to the seriousness of such an offence. In Scotland, as in countries throughout Europe, domestic football is an international sport, played and coached by personnel from all over the world. Racism in football is condemned worldwide and should be met with a penalty that is designed to impose appropriate punishment and to deter the abuser and all in the game from committing misconduct of this nature. Against that background the Appellate Tribunal are in no doubt that the Disciplinary Tribunal were entitled to regard the case as falling somewhere between Mid Range and Top End. In the event, and applying the reduction of two weeks for mitigating circumstances, the sanction imposed fell into the Mid Range. The Appellate Tribunal do not consider that to be excessive and affirm the decision of the Disciplinary Tribunal to impose a seven match suspension.

Postscript [24] The Appellate Tribunal note that in accordance with normal practice the identities of the Disciplinary Tribunal members remain confidential. However the Appellate Tribunal also note that to date the terms of the Written Reasons of the Disciplinary Tribunal have remained confidential. The Appellate Tribunal are not aware of any particular reason why that should be so in this case. There has inevitably been ill-informed speculation about the reasons for the Disciplinary Tribunal deciding to uphold the complaint and impose a seven-match suspension. Against that background the Appellate Tribunal consider that it would be in the interests of the parties, in the interests of the wider football community, and in the general public interest to publish this decision and the terms of the original Disciplinary Tribunal decision, thus ensuring that any ensuing debate is well-informed. The Appellate Tribunal, therefore, suggest to the SFA that they should exercise their discretion in terms of paragraph 17.5.2 of the Judicial Panel Protocol to disclose both decisions and the reasons therefor.

Iain Bonomy, Chairman, Judicial Panel Appellate Tribunal,

16 December 2014