FA ban for Nicolas Anelka - the written report

The FA has published (pdf) the written report of the Independent Regulatory Commission that last week found Nicolas Anelka guilty of an aggravated breach of their rules for his 'Quenelle' salute goal celebration. CST welcomed the fact that the Commission found Anelka guilty but we did not comment on the specific punishment given to Anelka, as we wanted to wait until the FA had published this report that explains the Commission's reasoning. Anelka was banned for 5 matches and fined £80,000: the 5 match ban is mandatory for cases of racist abuse in English football, but it can be increased up to 10 matches if there are "additional aggravating factors".

This blog post sets out our thoughts on the case in detail now that we have read this report. In brief, we feel there are three points of note:

• The FA did a good job of prosecuting this case and it is encouraging that it sought a more severe punishment than the 5 match ban that the Commission imposed.
• The Commission's decision that Anelka did not intend his 'Quenelle' to express or promote antisemitism via support for Dieudonné is baffling given the evidence it heard and accepted from both Anelka and the FA, and its refusal to increase his ban above 5 matches is disappointing.
• The FA should strengthen its rules regarding punishments for cases of racist abuse, in line with the scale of punishments introduced by UEFA last year.

Firstly, it is important to point out that there is a division of roles in cases such as this that can be confusing: the FA effectively acts as prosecutor, charging Anelka and presenting the case against him, but the Commission, though entirely independent, operates under the FA's own rules. Thus the FA has ultimate responsibility for the decision of the Commission, but does not make that decision itself.

The report sets out in some detail the vile antisemitism of Dieudonné M'Bala M'Bala, the French comedian/politician who invented the Quenelle and to whom Anelka dedicated his goal celebration. This includes a description of a show performed by Dieudonné in January 2013, attended by Anelka, in which the following occurred (para 38):

Dieudonné refers to Patrick Timsit, an Algerian Jewish comedian, as “very, very Jewish”. He says this about him: “… if we were to find ourselves in the situation of the ‘30s … he [Patrick Timsit] better not come and hide in my cellar … from annoyance to deportation”. We agree that is a reference the persecution of Jews by Adolf Hitler in the 1930s and a further reference to the practice of Jews seeking to avoid such persecution by hiding in cellars. The reference to deportation is also a reference to the transportation of Jews to concentration camps, at which they were “exterminated”. In short, we agree that this sketch by Dieudonné is obviously and grotesquely anti-Semitic. It is immediately followed by light music, during which Dieudonné performs the quenelle.

There is much more of this in the report, if you can stomach it.

The report shows that the FA built a strong case against Anelka and presented it well, for which it deserves credit; especially as few (if any) people at the FA would have been familiar with the Quenelle or Dieudonné when this whole affair began in December. CST provided evidence to the FA and we hope this helped their understanding of the issues. The Commission found the FA's case compelling (para 94):

We concluded that the quenelle is strongly associated with Dieudonné. We further concluded that Dieudonné is strongly associated with anti-Semitism and, as a result, we found that the quenelle is strongly associated with anti-Semitism. We agreed with the FA that it is not possible to divorce that association from the gesture. When NA performed the quenelle on the 28 December 2013, it had that association; it was strongly associated with and contained a reference to anti-Semitism.

The FA also argued for an increased punishment above the mandatory 5 match ban. Put together, the FA's approach to the case and its request for an increased punishment indicate that it is unfair to suggest, as some have done, that the FA does not take antisemitism seriously or treat it as a 'lesser' form of racism.

This suggestion has arisen in part because Anelka was given a 5 match ban whereas in other cases, particularly that involving Luis Suarez in 2011, the ban was longer. The length of ban given to Anelka has been much criticised, and having now read the Commission's report we feel this criticism is justified.

As David Conn writes in the Guardian:

The public waited a week for the explanation from the Football Association's regulatory commission as to how it decided Nicolas Anelka's quenelle gesture was antisemitic but that he had not "intended to express or promote antisemitism" when he used it. The three-man commission chaired by a QC specialising in sports law, Christopher Quinlan, produced 35 pages of legal reasoning, then on this central conclusion of theirs left us none the wiser.

Frankly, the Commission's thinking on this point is baffling. The report notes Anelka's evidence as follows (paras 70-73):

In his witness statement dated the 7 February 2014, he stated, “The reason I made the quenelle gesture after scoring a goal during the Match was simply as a ‘high five’ or ‘hello’ to the comedian Dieudonné. I wanted to dedicate the goal to Dieudonné as a friendly gesture. I know that the quenelle sign is closely associated with Dieudonné (who I believe invented it in the first place) and that he would therefore know (if he was watching, or subsequently saw the footage) by me making the quenelle gesture that I was saying hello to him and dedicating that goal to him.”

[...]

He became aware of Dieudonné in about 2000. He has met him once and attended one show, Foxtrot. He has watched recordings of his shows.

[...]

He insisted that he did not know on or before 28 December 2013 of the controversy surrounding Dieudonné. He dedicated the goal to him at that time because it was his first opportunity he had; it was his first league goal for WB. He said it was a coincidence that at that time Dieudonné was the subject of such controversy in France; that played no part in his decision to dedicate the quenelle to him for he had no idea of the storm.

He liked Dieudonné ”a lot” as a comedian. Some of his humour was lost in translation. He did not accept Dieudonné was anti-Semitic. He did not understand, he said, that Jacky was dancing (with pineapples) in a concentration camp uniform. Though he was educated in France (where the Holocaust is part of the curriculum), he knew nothing of “Jewish stories” he said. He denied knowing that the quenelle was (as was put) an anti-Semitic gesture.

Having heard all the evidence, the Commission decided the following (para 86):

The quenelle is inextricably bound up with Dieudonné. We accepted Professor Hand’s opinion that as of 28 December 2013 the majority of people in France would clearly have understood that; would clearly have associated the quenelle with Dieudonné; and with the controversy prevailing at that time. Given the nature of that controversy and of Dieudonné’s anti-Semitic views we were satisfied to the appropriate standard that the quenelle is and was at that time strongly associated with anti-Semitism. As the FA submitted (and we agreed) it simply is not possible to divorce that association from the gesture and when NA performed the quenelle on the 28th December 2013.

These sections are obviously contradictory. If the Commission accepted that most people in France were aware of the connection between the Quenelle, Dieudonné, antisemitism and the ongoing controversy in France, then presumably that should be even more the case for Anelka, who is a friend of Dieudonné, had attended one of his shows 11 months previously and who has watched recordings of other shows. Anelka's claim of ignorance is implausible and, more importantly, is incompatible with the finding of the Commission. Consequently, the Commission's decision that "on the evidence before us we were not satisfied (to the requisite standard) that NA was or is an anti-Semite or that he intended to express or promote anti-Semitism by his use of the quenelle", is difficult to understand.

In this respect, then, the FA has been let down by its independent Commission. However, to a certain extent this highlights a flaw in the FA's own rules: the lack of specific criteria by which the mandatory 5 match ban should be increased. Rather than having a specific check list of "aggravating factors", it is left to the Commission to decide what these should be, relying on precedent and its own reasoning.

For example, the Commission decided that the fact "the gesture was not made to any person in particular" was a mitigating factor, which made this offence less serious than that of Luis Suarez, who directly racially abused another player. However, in our view the fact that Anelka intended to make a public statement, viewable by millions of people, makes his offence more, not less, serious than a private comment made to another player.

Furthermore, the Commission noted that in the FA's own rules, it only states that the Commission "may" increase the ban if "aggravating factors" are present - not that they "shall" or "must" do so. Therefore the rules are balanced away from any increase. A strengthening of this wording and the specific listing of "aggravating factors" would surely help.

Lastly, while the FA should be commended for its efforts in this case within the existing rules, there is the question of whether a mandatory 5 match ban is ever sufficient for a case involving racist abuse. Last year UEFA (pdf), European football's governing body, increased the minimum suspension for racist abuse by players to 10 matches and also introduced partial and whole stadium closures as punishments for clubs if their fans commit racist offences. This was used this week when UEFA banned a Belgian futsal player for 10 matches for making a Quenelle gesture. A mandatory 10 match ban is now the new standard for tackling racist abuse in European football and we would encourage the FA to strengthen its own powers accordingly.