The Irish Football Association Appeals Committee
In the matter of an Appeal by
against a decision of the
Irish Football Association Disciplinary Committee
made on 14 April 2015.
The Chairman, Joseph McCrisken – (delivering the decision of the Appeal Board)
 This is an appeal pursuant to Article 14.2 of the Irish Football Association ('IFA') Articles of Association ('AoA') by Mr Chris Casement, a player registered with Portadown Football Club (‘the Club’), against a decision of the IFA Disciplinary Committee (‘Disciplinary Committee’) made on the 14 April 2015.
 The appeal was heard on 23 April 2015. Mr Keith McGarry, solicitor, Mr Ronnie McFall (Team Manager, Portadown FC), Mr Kieran Harding (assistant Manager, Portadown FC) and Mr Bill Emerson (Secretary, Portadown FC) appeared for the Club. The Disciplinary Committee Vice-Chairman, Mr Mark Scott and Secretary, Ms Rebekah Shearer appeared for the Disciplinary Committee. We are indebted to all those involved for the considerable assistance that we derived from their carefully prepared, helpful and well delivered written and oral submissions. Both parties have consented to this Decision being made available to the public, media and, more importantly, to the clubs in all divisions of football in Northern Ireland.
 This appeal concerns, (i) the actions of Mr Casement during a match that took place on 14 March 2015 at Shamrock Park, Portadown, against Dungannon Swifts Football Club, (ii) the resultant disciplinary proceedings which lead to, (iii) Mr Casement being suspended for a total of seven games.
 We heard oral evidence from Mr Casement and Fitzpatrick as to what occurred during the incident under appeal. We also viewed video footage of the match in question which was provided by the Club. Additional footage was also available from the BBC Northern Ireland website but owing to a technical issue we were unable to view this material during the hearing.
The material available showed that, in the 89th minute of the game with the scores level at 1-1 the referee, Mr Keith Kennedy, acting on advice from his assistant referee Mr Stephen Donaldson, had cause to dismiss Mr Casement from the field of play for ‘violent conduct’, specifically a head-butt on Mr Fitzpatrick.
 We ascertained from the video footage and witness evidence that the sending off occurred following another incident involving a poor tackle made by another Portadown player on a player from Dungannon . While the Dungannon player was on the ground Mr Casement kicked the ball in the direction of the stricken Dungannon player. The ball struck the player on the head. Mr Casement indicated that this action was accidental and not deliberate.
 Mr Terry Fitzpatrick, a player for Dungannon, then became involved. Mr Fitzpatrick made his way toward Mr Casement and both men made initial physical contact in the area of their chests. The video footage then showed the men coming together again. Fitzpatrick’s head jerked back as the men made contact and this is the altercation which is the subject of this appeal.
 Assistant referee Donaldson, who had been standing on the opposite side of the pitch approximately 50 metres from the incident, then informed the referee that he had witnessed Mr Casement head-butt Mr Fitzpatrick. The referee accepted these observations and showed Mr Casement a red card, sending him from the field of play. Portadown also had another player sent off following the initial poor tackle.
 Mr Scott outlined the various processes that had been followed which resulted in a total suspension of 7 matches being imposed on Mr Casement. On 14 April 2015 a hearing took place before the Disciplinary Committee. Oral evidence was taken from Mr Casement, Mr Fitzpatrick, assistant referee Donaldson, referee Keith Kennedy, Mr Crangle (a senior referee), the match observer and from representatives of the Club.
 Mr Casement denied head-butting Mr Fitzpatrick. Mr Fitzpatrick categorically denied being the victim of a head-butt. The video footage was shown to both players and to the referee, assistant referee, senior referee and observer. Mr Scott informed us that all these people considered that the footage was inconclusive.
 Mr Donaldson told the Committee that he was adamant that he had witnessed a head-butt. He had indicated this to the referee using the match radio system by informing him of the player number and the offence – ‘head-butt’. When he watched the footage he considered that it was not conclusive and remained of the view that his initial observation was correct. He indicated that he was surprised that the victim of the head-butt had denied that it had occurred.
 During the appeal hearing there was some dispute as to what the match referee had said after he had viewed the footage. Mr Scott told us that the referee had indicated that, based on the (inconclusive) footage he would have issued a yellow card to each player but emphasised that the footage was not clear enough to be conclusive. The Club, and Mr McFall, disputed this and told us that the referee was clear that in his view the incident warranted only a yellow card.
 Having watched the footage that was shown to the referee and Mr Crangle we would have been very surprised if either of them had offered a definite view on punishment having watched such poor quality footage and we proceeded on the basis of the version provided by Mr Scott. As will be explained later, the subjective opinions of the referee and Mr Crangle should only have attracted a minimal amount of weight in any event since they did not witness the actual incident first hand.
 Mr Scott then went on to tell us how the Disciplinary Committee had reached its decision. He indicated that this was a case in which the Disciplinary Committee considered that the initial burden (or responsibility) for proving that an offence had occurred rested with the IFA. Taking into account the evidence provided by Mr Donaldson the Committee was satisfied that the IFA had discharged this burden.
 The Disciplinary Committee then considered any relevant provisions of the IFA Disciplinary Code, AoA and the FIFA Disciplinary Code. Article 14.3 of the AoA says that;
“There shall be no appeal against the decision of a referee who sends off any player other than where the player’s only complaint is that the referee in question has mistaken his identity.”
However, Article 77 of the FIFA Disciplinary Code provides a power that would allow a retrospective correction of errors;
The Disciplinary Committee is responsible for: ... (b) rectifying obvious errors in the referee’s disciplinary decisions. ... ...”
 Although this article is subject to transposition into the IFA Disciplinary Code, which is yet to take place, we take the view, as the Disciplinary Committee did, that notwithstanding this it can be treated as having direct effect.
 Mr Scott then outlined the test that had been applied by the Disciplinary Committee when it assessed if an ‘obvious error’ had occurred. He said that the Disciplinary Committee considered that the test was both an objective and subjective one. That the burden of proving that an obvious error had occurred rested with the player and that the standard of proof was that of comfortable satisfaction. When asked what ‘comfortable satisfaction’ meant in this case he informed us that this meant the ordinary civil standard of ‘balance of probabilities’. Issues concerning this standard and the potential confusion caused will be dealt with later in this Decision.
 Mr Scott told us that the Disciplinary Committee considered that the term ‘obvious error’ meant something more than just an error.
 Having considered all the evidence before it the Disciplinary Committee found that Mr Casement and Mr Fitzpatrick were credible and believable witnesses. The Committee also found the assistant referee to be a credible and believable witness. The Committee concluded that on the basis of the material before it, no error had occurred, never mind an obvious error. In these circumstances the suspension against Mr Casement stood. He was advised of his right to appeal.
 On 17 April 2015 the IFA received a written appeal from the Club on behalf of Mr Casement. The grounds of appeal can be summarised as follows;
(i) The IFA Disciplinary Committee failed to consider properly the video evidence produced by the Club. In particular the Committee failed to consider that the footage shows that no head-butt occurred, that the assistant referee was some distance from the incident and that he did not have clear line of sight.
(ii) The IFA Disciplinary Committee failed to consider the view of the match referee once he had watched the footage that he would have issued a caution rather than a sending off.
(iii) Other evidence is available which demonstrates that no ‘head-butt’ occurred.
(iv) The IFA Disciplinary Committee failed to properly apply the correct burden of proof in the proceedings.
(v) There are issues with proper compliance with the FIFA Disciplinary Code.
Discussion on the grounds of appeal.
The IFA Disciplinary Committee failed to consider properly the video evidence produced by the Club. In particular the Committee failed to consider that the footage shows that no head-butt occurred, that the assistant referee was some distance from the incident and that he did not have clear line of sight.
 We are satisfied that the IFA Disciplinary Committee did properly consider the video footage that was available. We were impressed by Mr Scott’s careful analysis of the video footage and by the line of questioning that was adopted at the Disciplinary hearing. The questions asked were pertinent and relevant, underlining the utility in having qualified and experienced lawyers present and involved in disciplinary proceedings.
 We are satisfied that the issue concerning the distance of the assistant referee from the incident and the potential interference in his view was considered at the hearing and that the Club had an opportunity of making submissions regarding the observations.
 Mr McFall made the point at the hearing that the assistant referee was on the line some 50 metres from the incident and that he was moving when he made the observations. The obvious answer to this, unfair, criticism is that almost all assistant referees will witness incidents, whether off-side, fouls or other infringements, from the touchline and possibly on the move. That is the nature of their role. In this case we have taken these factors into account assessing the accuracy of the assistant’s observations.
The IFA Disciplinary Committee failed to consider the view of the match referee once he had watched the footage that he would have issued a caution rather than a sending off.
 We felt that there was very little merit in this point. The test to be applied is, in our view, an objective one. This means that the view or opinion of the referee, Mr Crangle or anyone else for that matter is of limited relevance. The body charged with making an objective finding as to whether or not an obvious error has occurred is the judicial committee, in this case the Disciplinary Committee or the Appeals Board. Of course, if having viewed footage the referee is of the view that he made an obvious mistake, this will be relevant, it is not relevant in all cases.
 We take the view that the opinion of the referee in this case is of limited relevance, since he did not see the incident first hand and admitted that the video footage was inconclusive.
Other evidence is available which demonstrates that no ‘head-butt’ occurred.
 This is perhaps the strongest ground of appeal. The Disciplinary Committee found both Mr Casement and Mr Fitzpatrick to be credible and believable witnesses. In those circumstances, say the Club , the burden of proving that an ‘obvious error’ has occurred must be discharged. On the other hand, Mr Scott says that notwithstanding the believability of both individuals, the burden was not discharged, even to the lower civil standard.
The IFA Disciplinary Committee failed to properly apply the correct burden of proof in the proceedings.
 The Club say that the burden of proof should not have rested on the player at any point and for it to have done so is unfair. This is a view which we cannot accept. It is clear to us that once the IFA have established a prima facie case, based upon the evidence of Mr Donaldson, that the burden then shifts to the player to establish on the balance of probabilities, using whatever evidence he wishes, that an obvious error has occurred. We are satisfied that the Committee approached this aspect correctly. It would have been better had the term ‘balance of probabilities’ had been used. rather than the less well understood term 'comfortable satisfaction'.
There are issues with proper compliance with the FIFA Disciplinary Code.
 The Club say that the provisions of Articles 47 and 48 of the FIFA Disciplinary Code have not been properly transposed into the IFA Code. Article 48 of FIFA allows for a minimum 2 match ban for violent conduct. The submission by the Club is that the six match ban imposed by the IFA does not comply with this article taking into account Article 146 of FIFA.
Has an ‘obvious error’ occurred?
 This is the crucial question to be answered by this appeal. In answering the question, we had the benefit, as the Committee did, of listening to Mr Casement and Mr Fitzpatrick during the hearing. We were impressed by their evidence. Both came across as truthful and credible young men. When properly tested there were some discrepancies in their versions of events but nothing that caused us to doubt that they were telling us the truth about the material incident. Mr Casement told us that ‘100%’ no head-butt had taken place. This was the first red card of his career and we gave him, in criminal law terms, a good character direction. When questioned as to why he did not challenge the referees decision (perhaps an unfair question) he said he did not know why he had not disputed the decision to send him off, knowing as he claimed to, that he had not committed an offence. Perhaps it is indicative of football today that he did not consider that the ‘right’ answer might be that he did not dispute the card because he respected the referees decision? In any event we did not draw any adverse inference from his response to this question. He behaved as a player should, accepted the decision of the referee and made his way from the field of play. He should be commended for this mature attitude.
 Mr Fitzpatrick told us that he felt like he was being called a liar because his evidence to the Committee had not been relied upon to remove the suspension on Mr Casement. He also gave his evidence in a candid and straightforward manner. He told us that no head-butt had occurred and that the only contact had been ‘handbags’ and contact using hands and chest. Although Mr Fitzpatrick was credible and believable witness it is also the case that he was the person who started the incident by making his way, completely unnecessarily toward Mr Casement. Managers and players who are critical of officials would do well to recognise the difficulties caused by a lack of discipline within clubs. Had Mr Fitzpatrick not felt the need to approach Mr Casement this whole incident, with the additional burden on refereeing, could have been avoided. Nonetheless, we believed Mr Fitzpatrick and he is also to be commended for giving up his time and attending two hearings in the defence of an opponent. Again, he showed a mature and refreshing attitude.
 The video footage was inconclusive in determining if a head-butt had occurred. The Disciplinary Committee told us that in the absence of clear video footage it could not be satisfied that an obvious error had been made. This, we think, misses a crucial point in this case. In the modern era, where people have become almost obsessed with capturing every last experience on camera the old fashioned method (eye witness evidence) of capturing and then assessing evidence can be, at times, overlooked and undervalued.
 This case had the benefit of a number of eye witnesses. While we are satisfied that proper questioning of the witnesses took place we are not satisfied that proper use was made of the material that was gathered when the correct test is applied. Here we have two young men who the Committee found credible and believable telling them that the alleged head-butt did not occur. Up against that we have an assistant referee whose job it is to observe incidents and report on them. The Committee, in fact, believed everyone was telling the truth – the assistant when he said that a head-butt did occur and the players when they said that it did not. In these circumstances something has to give, either (1) someone is lying or (2) someone is mistaken. We do not believe that any of the three individuals told lies. Therefore, in the words of Sherlock Holmes, once you eliminate the impossible (the lie) whatever remains (the mistake), however improbable, must be the truth.
 The truth, as we see it, is that the assistant referee is mistaken. An assistant like a referee, or a policeman for that matter, may well be specially trained to observe but they are nonetheless still fallible. Eye witness evidence is inherently unreliable because human beings are unreliable. What the Committee, we think, failed to grasp is that a truthful witness can still be a mistaken witness. There are factors with the observation made by the assistant referee which cause us to doubt the accuracy of his observation. The distance (some 50 meters) , the potential for an interfering player in his line of sight, the movement of the players toward each other and the fracas that was taking place. He was not helped by the actions of the players, neither was he assisted by the match observer. The referee was busy dealing with another incident. The mistake is understandable, and human, but it is a mistake nonetheless.
 We have no difficulty in finding that it was an obvious mistake. The test is objective, which means that it is up to us to decide based upon all the evidence on the balance of probabilities if the mistake was obvious or clear. We believe that it was and that the player has discharged the burden placed upon him. Accordingly the suspension against Mr Casement is lifted and he is free to play in his Club’s next fixtures, which includes, if selected, the Irish Cup Final.
 The other grounds of appeal are rejected. The FIFA Code is clear that the IFA is given a wide discretion as to how to implement Articles 47 and 48. That the IFA has chosen to impose a 6 match ban is matter for its discretion.
The Irish Football Association Appeals Committee - Appeals Board:
Joseph McCrisken – Chairman
Jonathan Burgess – Independent Member
Ian Beggs – IFA