Introduction

Let’s make one thing clear – I am not defending Luis Suarez. He inexplicably decided to sink his teeth into an opponent for the third time and deserves to be banned. However, we must ask ourselves is the severity of the ban warranted and why is it that Liverpool Football Club is the party that suffers the most? In this article I will analyse the Disciplinary Committee’s decision and explore possible remedies available to Liverpool.

What is his punishment?

Suarez has been charged under a combination of Article 22[1], Article 48[2], Article 57[3], and Article 77[4] of the FIFA Disciplinary Code. I pointed out in my previous article (Will Suarez be banned?) that there was a possibility Suarez could be barred from taking part in “all football related activity”. FIFA’s decision to invoke this power and impose such a ban, when viewed in relation to previous sanctions, sticks out like a stadium in Manaus.

FIFA have obviously taken Suarez’s previous toothy transgressions into account and used this as justification to impose a lengthy ban which applies both domestically and internationally. This is their prerogative as Article 40 confers such a power on the Disciplinary Committee but the severity of the sanctions is most definitely open to scrutiny.

FIFA’s decision:

FIFA is an organisation that awards a World Cup to Qatar, is plagued with accusations of Mafioso style corruption and continues to re-elect Septic Blatter so it should come as no surprise to anyone that FIFA’s statement on Suarez’s draconian ban lacked clarity and consistency. The four month ban given to Suarez shows that past judgements of the Disciplinary Committee are useless when it comes to the punishments they dish out.

The sanctions on Suarez are so severe that, not only can he not train with team-mates; he can’t even set foot inside the stadium to have the team picture taken. Now I’m not ruling out the possibility that the cameraman antagonises Suarez relentlessly nor am I saying there isn’t a chance the cameraman looks particularly appetising on the day of the photo-shoot[5] but perhaps FIFA have gone a little overboard with their sanctions.

So clueless are FIFA that they “weren’t sure” if the ban precluded any transfers. It boggles the mind that a body sitting in a judicial capacity can make a statement which will have massive financial consequences for both player and club – yet at the same time be unsure as to what their sanction entails. This suggests the sanctions placed on Suarez may have been more about acquiescence to the outraged world (UK) media than a thoroughly thought out, rational and proportionate measure taken to protect players and rehabilitate Suarez. In fact there appears to be no attempt to rehabilitate Suarez at all.

I can tell you that any attempt at blocking a transfer would constitute an unjust restraint on Suarez’s freedom of movement as a worker as guaranteed under EU law so FIFA, for fear of judicial review, would never impose such a restriction. Footballer’s freedoms are already limited, in the sense that they are treated as quasi-assets by football clubs[6], so to allow football players to give notice and terminate their contracts wouldn’t be conducive to the competitive nature of the sport. The European Court of Justice would likely be unwilling to accept further restrictions on footballers’ rights.

What will Liverpool do?

Liverpool is not able to appeal this decision. Unfortunately Article 119 of the Disciplinary Code requires an entity to be both a party to proceedings and have a legally protected interest. This means that Liverpool need Uruguay and Suarez to fight the ban by either appealing the decision made by FIFA or by taking the case to the Court of Arbitration for Sport[7].

I believe that proceedings won’t be taken any further than the appeal stage for a number of reasons:

Suarez (finally) admitted to biting Chiellini and apologised for his anthropophagous act. Chiellini accepted this apology on Twitter. He also magnanimously called for the ban to be reduced. FIFA would be setting a dangerous precedent by imposing a domestic ban on a player who participates in an international tournament. The clubs essentially loan their players to FIFA for the duration of the tournament and may be hesitant to do so if they know a league ban is a possibility. FIFA may fear legal proceedings being taken against them.

It is for these reasons I believe the domestic ban will be reduced, hopefully to no more than two months, and the sanctions prohibiting Suarez from training with his team will likely be lifted.

If the ban is upheld all hope is not lost for Liverpool. The English F.A. can appeal on Liverpool’s behalf! [Pause for laughter]. The club can themselves attempt to instigate legal proceedings against FIFA. They wouldn’t be appealing FIFA’s decision so much as challenging their authority to make such a suppressive decision in the Court of Justice. The case of Doña v Montero makes it clear that private sporting organisations are subject to EU law (in an economic context). As such, the punishments they hand out must be consistent with Community law. I will briefly outline the most promising arguments LFC have available to them:

The archaic Article 22 ban is ludicrously harsh. Imagine telling a retail shop assistant they can’t do anything “retail related for four months.” This would mean no stepping foot into retail stores, no shopping, no perusing the shelves etc. While this is clearly hyperbole it illustrates the absurdity of the situation. LFC could argue that the ban is clearly disproportionate to the offence. Despite the fact that Suarez is a repeat offender his ban dwarfs the previous sanctions FIFA have placed on players whose actions caused significantly more damage to the wronged party. This argument would likely only serve to reduce any domestic ban not remove it entirely.

LFC might argue that the ban represents a serious infringement on Suarez’s rights as a worker. Any argument here would again be focused on the severity of the ban and may result in a reduction in length of the domestic ban. A sanction that prohibits him from training seems very harsh and in my opinion this is not something that would hold up in a Court of Law.

FIFA are required to act in accordance with natural justice. While punishing Suarez is in accordance with this mandate, the adverse effects it will have on LFC appear unwarranted. When Suarez bit Ivanovic he could not play for Liverpool but he could play for Uruguay. I am aware that the punishments were given by two different bodies (although one is governed by the other), but it still seems unfair that Liverpool is being punished despite, by all accounts, attempting to rehabilitate Suarez. Liverpool weren’t in control of the player at the time of his misconduct, yet they are the party most affected by these sanctions. If I own a knife and lend it to a friend who commits a felony should my punishment be harsher than his?

Conclusion

I am quite confident that Suarez’s ban will be reduced although with all the stories linking Suarez to Barcelona it is quite possible Liverpool won’t stand to benefit from this. Suarez is box-office whatever he does. Despite being a lightning rod for controversy I have loved being able to watch him ply his trade for the club I support. If he does leave, Liverpool will get a hefty transfer fee but I for one will miss the crazed lunatic.

Thanks for reading and make sure to follow me @Henrylaw11 if you enjoyed the article and for further analysis of FIFA’s statement when it is published.