17th December, 2018

Paul Gilroy KC secures Jose Mourinho’s acquittal of FA charge based on defence of legitimate expectation

An FA Regulatory Commission has dismissed a charge against Jose Mourinho, arising from comments he made following Manchester United’s last minute 3-2 defeat of Newcastle United in October 2018.

The manager was filmed at close quarters making certain comments, in Portuguese, as he made his way to the dressing room after the game. The FA commissioned expert lip reading and linguistic evidence and charged Mr Mourinho with using abusive and/or insulting and/or improper language, contrary to FA Rule E3(1).

The charge was dismissed by a Regulatory Commission, on the grounds that the reasonable bystander would not have understood Mr Mourinho’s words to be abusive and/or insulting and/or improper. The FA appealed. The Appeal Board held that the Regulatory Commission had misapplied the reasonable bystander test, but the matter could not be concluded because, given that the Regulatory Commission had not dealt with Mr Mourinho’s free standing defence of legitimate expectation (on the basis that the need to consider that defence had not arisen in view of the Regulatory Commission’s primary finding) it was necessary for that issue to be considered and determined. The matter was remitted to a fresh Regulatory Commission.

The second Regulatory Commission dismissed the charge, on the grounds that Mr Mourinho was entitled to conclude, given the FA’s established practice of not charging managers and footballers in circumstances whereby the offence was said to be the use of swear words alone, that he would not be the subject of a charge in this instance.

The second Regulatory Commission (a) accepted Mr Mourinho’s argument that whilst sporting bodies such as the FA are not regarded as public bodies from a public law perspective, they are required to act in a way which is consistent with public law principles when making decisions (Bradley v Jockey Club [2004] EWHC 2164, as affirmed by the Court of Appeal [2005] EWCA Civ 1065), (b) held that the doctrine of legitimate expectation applied, and (c) ruled that the defence was an answer to the charge in this case.

This decision could have far-reaching consequences. If the FA wishes to take action in similar situations in the future, the likelihood is that it will have to issue (and ensure the full dissemination of) clear guidance to “Participants” in football (as defined in the FA Rules) as to what its practice or policy will be going forward.

Jose Mourinho was represented before the FA Appeal Board and the second Regulatory Commission by Paul Gilroy KC, instructed by Centrefield LLP, Manchester United, and the League Managers Association.



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