On 8 November 2016, the Newcastle United midfielder Jonjo Shelvey was charged by the Football Association (the “FA”) for misconduct in relation to comments allegedly made to his opponent, the Wolverhampton Wanderers player Romain Saiss, during the sides’ match on 17 September 2016. The FA’s press release states in full that:

“Jonjo Shelvey has been charged for misconduct in relation to Newcastle United’s games against Wolverhampton Wanderers on Saturday 17 September 2016.

It is alleged that in or around the 87th minute of the fixture, he used abusive and/or insulting words towards an opponent.

It is further alleged that the breach of Rule E3(1) is an “Aggravated Breach” as defined in Rule E3(2), as it included reference to ethnic origin and/or race and/or nationality.

The player has until 16 November 2016 to respond to the charge.”

It has been reported that Saiss, a Moroccan international footballer, speaks only a small amount of English and that the alleged misconduct was reported by one of his team-mates following the match.

The incident in question took place on 17 September 2016, some two months prior to the FA’s communication of the charge. The reason for the delay in the charge being brought would appear to be a result of the FA’s investigation into what exactly was said by Shelvey to Saiss. It has been reported that the FA has undertaken interviews with a number of Wolverhampton Wanderers players who are alleged to have given conflicting accounts of the type of insults used. Nevertheless, it has been reported that all of the interviewees claimed that there was at least some reference to Saiss’ nationality and/or ethnicity during the argument.

The relevant FA Rules that Shelvey is alleged to have breached are as follows:

“E3(1)

A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.

E3(2)

A breach of E3(1) is an “Aggravated Breach” where it includes a reference, whether express or implied, to any one or more of the following: – ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability.”

In short, players are prohibited by the FA Rules from using threatening, abusive, indecent or insulting words or behaviour. If such threatening, abusive, indecent or insulting words or behaviour include a reference to ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability, the offence becomes an “Aggravated Breach”.

If Shelvey is found guilty of breaching the FA Rules, what can he expect by way of punishment?

FA Rule E3(3)(i) states that, where an individual has committed an Aggravated Breach of Rule E3(1) for the first time, a Regulatory Commission shall impose an immediate suspension of at least five matches”. The Regulatory Commission may also increase the suspension depending on any additional aggravating factors that are found to be present.

The FA Rules also set out the position where an individual commits a second or further Aggravated Breach of Rule E3(1). In such a case, the Regulatory Commission shall impose an immediate suspension of more than five matches, taking into considering an entry point of an immediate suspension of ten matches, and any aggravating or mitigating factors present. There is however no suggestion that Shelvey’s conduct constitutes a second or further instance of an Aggravated Breach.

Rule E3(8) states further that:

“A Regulatory Commission may impose a financial penalty or any other sanction that it considers appropriate in respect of an Aggravated Breach of Rule E3(1) whether or not it has imposed a suspension in respect of the same breach.”

Rule E3(9) states that:

“A Participant who commits an Aggravated Breach of Rule E3(1) will be subject to an education programme, the details of which will be provided to the Participant by The Association.”

In summary therefore, a player in breach of these Rules may well expect to receive a ban of at least five matches, a financial penalty and be required to attend an education programme.

In preparing for the hearing of his matter, Shelvey may well have regard to the sanction imposed earlier this year on York City goalkeeper Scott Flinders.

Flinders was banned by the FA for five matches after he was found guilty of using racist language during a match against AFC Wimbledon on 19 March 2016. In that case, the FA issued written reasons in which it stated that:

“The detail of the charge was that Mr Flinders was alleged to have said to a member of the opposition Lyle Taylor in conversation that she (Flinders’s wife) “doesn’t like your kind.””

In addressing the issue of mitigation, the FA Panel noted that Flinders had no previous record of misconduct of this nature, addressed the character reference provided by the York City Club Secretary and noted that Flinders had been partly provoked by Taylor.

As a result, Flinders was banned for the minimum number of matches (five), fined the sum of £1,250, ordered to pay a contribution of £250 towards the costs of the hearing and required to attend a one to one FA education course pursuant to FA Rule E3(9).

It has already been reported that Shelvey will request a personal hearing at which he will claim that there are mitigating circumstances in play in this case. Whether that helps him defend the charges against him will remain to be seen.