John Terry - FA investigation likely to result in guilty verdict for England captain

The captain of Chelsea Football Club and the English national side, John Terry, was found not guilty and cleared of racially abusing Queens Park Rangers footballer Anton Ferdinand at Westminster Magistrates Court on 31 July 2012.

Ferdinand alleged that Terry aimed abusive language at him, describing him as "black" and using extreme sexual swearwords. Terry has not denied using the word “black” or using extreme insulting language of a sexual nature. Rather, he defended himself in court by insisting that during the game between the two West London clubs on 23 October 2011 he was merely repeating a phrase he believed Ferdinand had accused him of using during an exchange of on-field expletive insults.
Chief Magistrate Howard Riddle, in his written judgment, said it was “highly unlikely” that during the match Ferdinand had accused Terry of racially abusing him but that it was possible that Terry believed that Ferdinand had made an accusation and that “it is therefore possible that what he [Mr Terry] said was not intended as an insult, but rather as a challenge to what he believed had been said to him”. Riddle went on to state that upon reviewing all the evidence before him, he could not find Terry guilty because there remained an element of doubt that Terry intended to racially insult the Queens Park Rangers player.
Regardless of whether one agrees with the court’s reasoning for delivering a not guilty verdict, the position is this: John Terry has been acquitted and cleared by the courts of racially abusing Anton Ferdinand. Why, therefore, is the Chelsea footballer still under investigation by the Football Association, the league’s governing body?

In much the same way as an employer is able to conduct its own internal investigation at the same time as a police investigation involving one of its employees is ongoing, the FA is free and able to conduct its own investigation regardless of whether or not the case has been through the English court system. The FA has its own set of rules and if, as a result of an investigation, the FA finds that John Terry has contravened one or more of their rules then he can be disciplined by the FA. In effect, the ruling by the courts was only ‘half-time’. Only once the FA investigation is concluded can the final whistle sound. An FA spokesman commented on the day of the court judgment; "the FA notes the decision in the John Terry case and will now seek to conclude its own enquiries”. Indeed, the FA has been reviewing the evidence and an FA commission, which will meet on Tuesday, will decide if Terry is guilty of racially insulting Ferdinand and in the process if he has failed to comply with FA rules. The Commission, chaired by an independent QC, will reach a verdict on the charge against Terry of using “abusive and/ or insulting words and/ or behaviour” towards Ferdinand including “a reference to ethnic origin and/ or race”. Terry denies the charge.

The FA Commission will operate with a lower burden of proof than the courts and is able to find Terry guilty of the alleged offence on the balance of probabilities. The court could only find Terry guilty if it judged that it was beyond reasonable doubt that he had used racially insulting language. Chief Magistrate Howard Riddle said in his written judgment that “in [these] circumstances, there being a doubt, the only verdict the court can record is one of not guilty." The FA commission does not have to be certain that Terry uttered the words in question as a racial insult.

The court’s ‘not guilty’ verdict will, however, still have a bearing on the outcome of the FA investigation. The Daily Mail revealed on 18 September that Terry’s legal team aim to have the FA investigation dismissed on the basis that FA Rule 6.8 which states that the results of relevant civil or criminal proceedings are 'presumed to be correct and the facts presumed to be true' by FA regulatory commissions.

The FA has already taken action in 2012 in relation to complaints made a Manchester United footballer earlier this year. Patrice Evra who plays for the Manchester club alleged that Luis Suarez, who plays for rivals Liverpool, racially abused him during a game between the sides last season. This case did not go through the courts, but an FA investigation concluded that Suarez was guilty and dismissed Suarez’s defence that cultural misunderstanding prompted his use of the word “negro”. Indeed the Commission ruled it didn’t need to prove Suarez intended his use of the word “negro” to be insulting; rather it had to decide whether the use of the word “negro” was insulting. The Commission ruled that Suarez was guilty and he was subsequently fined and banned for eight matches.

On this basis, if the Commission rules that Terry’s use of the word “black” and accompanying insults of a sexual nature is offensive then Terry’s defence that he was merely repeating the phrase he believed Ferdinand had accused him of using should, in all likelihood, fail.