Clarity from the FA in the case of  Luis Suarez.

Workplace investigators, fact finders and decision makers, particularly dealing with allegations of discrimination, often struggle with factual disputes in disciplinary and grievance situations. It often comes down to one person’s word against another. All too frequently those tasked by organisation to make decisions about what happened (internal or external, legally qualified or not) decide that there is not enough evidence for them to come to a conclusion and no action is taken. The FA’s Regulatory Commission, ably lead by Paul Goulding QC, has provided workplace investigators with some techniques and perhaps even a template to use in coming to decisions about which version of events is more likely to have happened.

‘This is Anfield’ says the sign in the tunnel. There are few more intimidating places for opposing teams to come and play. This is elite sport and it can be a cauldron. But let’s not forget, it is also a workplace. During and immediately after a game on 15th October 2011 Patrice Evra the Man United captain claimed that abusive and insulting words and behaviour had been directed towards him by the Liverpool striker, Luis Suarez including numerous references to his colour/race. Suarez denied the claim. His position was (broadly) that he had used the Spanish word ‘negro’ once, but not in an offensive manner. This being the Premier League, the allegations concerned a heated conversation in Spanish between a Uruguayan (native Spanish speaker) and a French man who spoke Spanish in addition to at least four other European languages. And there was, of course, video footage from a number of angles documenting the entire incident; this is no ordinary workplace!

The FA investigated the matter. The full reasons refer to six recorded and transcribed interviews with the key witnesses and seven signed witness statements from other witnesses. Evra also gave a further witness statement. Since it was part of Suarez’s case that his usage of the term ‘negros’ was in an ‘affectionate and friendly way common in Uruguay’, the FA instructed two linguistic experts from the University of Manchester to prepare a written report on the linguistic and cultural interpretations of the word ‘negro’ and ‘negros’.

Following consideration of this material, Suarez was charged on 16th November. He was provided with all of the material gathered to that point, not just that on which the FA intended to rely. He was granted a short extension of time in which to prepare his defence. Further statements (including supplemental statements from the key witnesses and statements from six new witnesses) were generated – a total of 19 witnesses are referred to in the full reasons. Between the 14th and 20th December a three person Regulatory Commission sat to consider the charge. The decision on the charge and the penalty was published on the 20th December. The FA had succeeded in proving, on the balance of probability, that Suarez had breached the FA’s rules of conduct. He was given an eight game suspension, a £40,000 fine and ordered to pay the (we assume not insubstantial) costs of the hearing. The full reasons run to 454 paragraphs and were published on 30th December.

The evidence before the Commission

The parties were given the opportunity to cross-examine witnesses of their choice. Seven witnesses were cross-examined. Statements of the other witnesses were accepted. The Commission viewed it as being very important in a case such as this turning on significant factual disputes that they heard evidence in chief from the two central witnesses (rather than taking their statements ‘as read’). In addition to reading statements in advance of the hearing, the Commission viewed a considerable amount of video footage.

Interestingly, the video footage proved inconclusive as no angle allowed lip reading. It was, however, to prove useful in gauging the consistency of the witness evidence being given.

The Commission’s approach

The speed with which workplace investigations and disciplinary hearings are conducted is, of course, absolutely critical. Significant resources were obviously available to the parties. However, it is nonetheless impressive that the whole matter, including evidence from 19 parties, an expert report and substantial video material was concluded in a shade over two months.

The Commission also seem to have been extremely concerned to ensure absolute clarity and transparency in connection with the investigation and hearing. Importantly, where there appeared to have been a procedural lapse in terms of Suarez not being provided with some notes and tapes of Evra’s original interview, the Commission was completely open about the discrepancy and sought to remedy it immediately.

What is most striking, however, is how the Commission overcame the central problem of there being a conflict of evidence at the centre of this case. The principal factual issue in the case was whether Evra’s account of events was true. In assessing the credibility of a witness and the reliability of their evidence the Commission referred to four tests developed by courts, three of which were used by the Commission. The fourth test, which was not used here, is ‘Credit’ – whether anything can be inferred from a party’s previous behaviour. The three tests used were as follows.

1) Demeanour – a witnesses’ conduct, manner, bearing, behaviour, delivery and inflexion are critical in judging his or her credibility. The

Commission accepted that too much weight should not be given to this factor, particularly as the giving evidence can be an unnerving experience for some and that linguistic difficulties should not be underestimated. Both witnesses in this case had an interpreter. But it is noteworthy that Evra who was found to be ‘an impressive witness’

with a ‘calm, composed and clear manner’ gave his evidence in English whereas the Commission noted that Suarez ‘speaks little English’ and expressed itself to be unsure whether his lack of clear, direct answers was due to linguistic difficulties or evasiveness.

2) Inconsistency – is the evidence consistent with facts established by other evidence? In this case the video evidence ‘shed considerable light on the sequence of events and the way [the witnesses] acted towards each other.’ It is only in rare cases that such material will be available. But here it was important. Suarez’s attempts to suggest that certain of his actions were an attempt to defuse the situation and that he was acting in a conciliatory way when he used the word ‘negro’ were clearly inconsistent with the hostile and confrontational encounter shown in the video footage. There were also inconsistencies with what he had previously said, there were changes in his account, with the evidence of other (his own) witnesses and with contemporaneous notes such as the referee’s report.

3) Probability – basically, decision makers have to ask themselves ‘which of two divergent accounts is more probable?’ In assessing this issue the Commission asked itself two questions:

a.If Suarez is correct, why did Evra make the allegations and pursue the matter to a hearing? What was his motivation?

b.If Evra is correct, why did Suarez act in the way that he did?

Use of such questions appears to be of great potential value to investigators or decision makers charged with choosing between two different versions of events.

The next stage of the Commission’s deliberation was to set out its findings of fact, in essence what it believed actually happened. This is something that in my experience investigators of fact finders fight shy of. But it is an important logical stage in coming to a decision. Perhaps one of the things that made this easier to do was the inclusion of what appears to the writer at least to be a critical paragraph in the Commission’s deliberation (and the sort of thing that should perhaps be stressed in many of the outcomes of investigations into charges of discrimination). I make no apology for reproducing para 344 in full.

“344. We took into account that it is a real albeit unattractive trait of human nature that we all act from time to time, to a greater or lesser degree, in ways which may be out of character. This is especially so when we feel under pressure or challenged, or provoked, or pushed into a corner. We do and say things that we are not proud of and regret, and that we might even try and deny, sometimes even to ourselves. We occasionally do or say things that we would be embarrassed to admit to our family and friends. It is not inconsistent to have black colleagues and friends and relatives and yet to say things to strangers or acquaintances that we would not say directly to those closer to us.”

The Commission were not saying that Suarez was a racist, something Evra had been at pains to point out in his evidence (and for which the Commission gave him credit when assessing his demeanour). They were saying that in the heat of the moment they believed, on the balance of probabilities, that he acted in this way.

Liverpool FC announced on 3rd January that it would not be appealing against the decision. It maintained Suarez’s innocence and stated that the decision was “based on an accusation that was ultimately unsubstantiated”. In the real world accusations of this sort are very difficult to substantiate, even, as here, when the incident is captured on many cameras. And so employers must, if we are going to progress further in this area, take brave decisions such as that taken by the FA in this case. They must decide who they believe. In so doing they are not branding anyone racist, sexist or whatever, they are saying that in the stress of the moment someone did something that they probably now regret. In its comments on the matter the FA conclude that, “the issue of race in sports, as in other industries, has a very poor history. Far too often….the issues of racism and discrimination have been covered over or ignored.”