What is the appropriate sanction for breaching the prohibition on betting on football matches, and what effect will mitigating factors have on the sanction?
Joey Barton has experienced a full and well publicised career at a number of clubs including Manchester City, Newcastle United, QPR, Marseille, Burnley and Rangers. This latest indiscretion involves a misconduct charge brought by the FA.
In 2016, Barton was charged with misconduct for breaching rules prohibiting betting on football matches. Whilst there is no suggestion that Barton was engaged in match fixing, he placed 42 bets on 20 matches involving teams he was registered in, including two matches in which he played. Of those 42 bets, 15 were bets that his team would lose (although note that Barton did not play in matches involving those 15 bets).
The FA Rules
Which rules apply?
Under Part E of the FA Rules, it is prohibited to bet on football matches (Rule E8). Each bet placed is deemed to be a separate breach of the rules. During the 2005 to 2008 seasons the FA Rules prohibited participants from betting on the result, progress, or conduct of a match or competition in which they participated or had influence. In 2009 this extended to "participated in that season" and by 2014 the FA Rules covered total prohibition from football related betting all over the world.
The Football Regulatory Authority (the FRA) established guidelines in 2011 (the 2011 Guidelines) to assist the Commission in deciding which rules should apply. Those guidelines developed over the 10 year period in question, and the current version has been in place since the 2014/2015 season (the Current Guidelines). There was a debate over which iteration of the guidelines ought to apply to determine the sanction for Barton's misconduct (the misconduct itself was accepted by all parties).
Barton submitted that bets placed before the start of the 2011/2012 season were not covered by the 2011 Guidelines, which ought not to be applied retrospectively. The FA argued that the correct approach is to analyse the whole misconduct using the Current Guidelines. This was supported by reference to various Court of Appeal precedents.
Barton's awareness of the FA Rules
During the hearing, Barton openly admitted that he knew betting on matches was against the FA Rules, but didn’t realise the extent of the FA Rules.
“…. I didn't know it was everywhere in the world….. But I knew it was forbidden for me to bet on my own league and….if we had played in the FA cup….”
In 2012, Barton was sent a letter from the FA highlighting the FA Rules after tweets from his Twitter page which were deemed to be betting tips were brought to the FA's attention.
Barton openly admitted that he placed at least some of the bets despite knowing that he was breaching the FA Rules. Barton also accepted that he had a professional responsibility to understand the detail of the FA Rules and that he took no adequate steps to do so (and in fact continued to bet in breach of the FA Rules).
It was decided that the fair and reasonable way to sanction Barton would be to consider the aggravating and mitigating factors and impose a single global sanction to reflect all of the 1,260 individual cases of misconduct.
The aggravating and serious factors included:
- the 15 bets Barton placed on his own team to lose;
- the total number of bets; and
- the letter Barton received in 2012 when he was directly warned about his gambling.
The mitigating factors submitted in response included:
the fact that Barton had proven that he was addicted to gambling;
there were no suspicious bets or large returns from his bets (actually Barton lost £16,708.29;
Barton never concealed his identity when placing the bets;
Barton entered into a guilty plea early on, and he made significant admissions during interviews expressing remorse throughout; and
Barton offered to provide help and advice to other players who may be dealing with addiction.
The Commission ultimately relied on the fact that Barton has enjoyed a full career but has been found to have been breaching the betting rules for a substantial part of that career. After balancing the aggravating and mitigating factors, the decision was to ban Barton from all football and football activities for 18 months with immediate effect, impose a £30,000 fine, and order Barton to pay the costs of the hearing.
Why is this important?
The case raises the question of what mechanisms sports organisations (including clubs) can put in place to protect the welfare of their players, and their business. Sport is not exempt from the expansion of gambling and gaming in modern society. As an issue, gambling addiction is just one of the many challenges facing players in football today (and athletes in sport more generally) – we have recently seen a much needed increase in awareness of the mental health challenges individuals face across society, including sport.
Aside from the clear social responsibility of sports organisations to help protect players, the business case to do so is clear. Barton has been banned towards the end of his career. However, if a young superstar with high commercial value and on £200,000 a week is banned for a significant period of time for breaching gambling regulations, the ramifications for losing a major playing and commercial asset are obvious.