The previous piece in this series can be found here.
The Rangers Journey
Following the events of 2012 in Scottish football, the Newco Rangers joined the Third Division and began its climb to the top flight. For the first three years under UEFA Rules it would be ineligible to play in Europe, though it could only qualify on merit through cup competition in any case. Rangers suspended threat of stadium ban dissipated during this period (or went with the old club depended on your particular leanings – it matters little either way). UEFA case law did not stand still though.
It seems clear recently that from UEFA’s perspective – whether the nature of discrimination is race or sect of religion UEFA does not care as it falls within Article 14. The distinction often drawn in Scotland between these seems to be predicated on a misguided notion that discriminating among sects is somehow less serious than discriminating on racial grounds or is some sort of tolerable societal problem. It is bigotry of equal standing and punishable alongside it say UEFA. Indeed in relating to the St Joseph’s charges, though the outcome was stated as Racism – this does appear to be somewhat boiler-plate reporting and the actual charges felt no need to draw a distinction, reporting the behaviour as “Racist (sectarian)” a terminology we’ve used elsewhere in this series.
Indeed in Scotland in particular when it comes to its application to football – discrimination against the Irish or Irish-diaspora and Catholicism has tended to go hand in hand since an early time. A distinction is barely necessary. Active discrimination on grounds of either religion, race or nationality is illegal.
During Rangers inactivity in European competition, this particular line of thought was tested in UEFA’s case law regarding Ajax.
2014 – Ajax
Again we go straight to an Appeal against an original decision.
In a decision of 12 November 2013, Ajax were fined €25,000 for violating Article 16(2)(e) of the UEFA Disciplinary Regulations by displayed a banner containing the words “Fenian Bastards”. The decision was notable for a number of reasons.
The scope of the original charges
The charges were brought under Art. 14 DR Racism/discriminatory conduct but fined Ajax €25,000 for violating Article 16(2)(e) of the UEFA Disciplinary Regulations (inappropriate behaviour). The appeal was actually made by the UEFA Disciplinary Inspector rather than the club. This lead Ajax in the appeal though to claim its right to a fair hearing wasn’t respected and it had no change to defend itself against a new charge based on Art. 16(2).
The conclusion reached on this particular issue was that UEFA disciplinary services are under no obligation to mention all the rules and regulations that might be applicable when announcing the opening of a disciplinary procedure. Only the relevant facts and guidance as to the legal qualification of the alleged offence(s) need to mentioned, in order to give the club the opportunity to dispute the allegations and argue that they do not constitute an offence under the Disciplinary Regulations.
It would be fair then to say that charges being brought under a particular Article transgression do not necessarily mean that those are the only charges at a hearing the defendant could be punished for if the findings were that instead a different Article had been breached. This gives UEFA particular leeway in setting out its charges.
The conclusions reached went on to set out that the applicable part of Art. 16(2) was as follows:
e) the use of gestures, words, objects or any other means to transmit any message that is not fit for a sports event, particularly messages that are of a political, ideological, religious, offensive or provocative nature;
This particularly includes provocative or insulting messages. It went on to note that under Article 14 (racism and other discrimination) this was a lex specialis. Essentially that where two laws govern the same factual situation, a law governing a specific subject matter (lex specialis – in this case Art. 14) overrides a law governing only general matters (in this case Art. 16).
The use of independent experts in complex cases
Two principle experts were used in this case. David Scott, CEO of the NGO Nil by Mouth, a Scottish anti-sectarian charity, and David Hassan, a lecturer at the University of Ulster (Northern Ireland) who had written books and articles about sectarianism.
The former could only attend by phone while the latter attended in person.
The word ‘Fenian’
The UEFA disciplinary inspectors submissions in the original hearing related to the banner itself included that:
- Not only is the expression “Fenian Bastards” clearly a reference to the Catholic community and, therefore, to the religious origins of Celtic FC and its supporters, but it also appears derogatory and discriminatory.
- The word “Fenian” was used in the 19th century to refer to independent Irish nationalists. However, for several decades, the word has particularly been used against Celtic FC, in the context of its derby matches against Rangers FC, as a reference to the Catholic and Irish origins of the club and its supporters. As a discriminatory expression, “Fenian Bastards” must be punished under Article 14 of the Disciplinary Regulations.
The UEFA disciplinary inspectors appeal centred on the original decision regarding the discriminatory nature of this being materially incorrect.
On this particular point UEFA cite precedence of the Rangers case in 2011 noting that it had already found “We hate Celtic Fenian Bastards” as a racist chant and that the Ajax banner had the same objective, or at least produced the same result, i.e. provocation of the Celtic FC supporters, noting that provocation must be prohibited, especially when it involves the use of discriminatory language.
In their submissions Ajax had:
… (C)ontested the disciplinary inspector’s argument that the word “Fenian” had discriminatory connotations. It pointed out that the Celtic FC supporters called themselves “Fenian” and took pride in the use of this word. Therefore, for Celtic FC supporters, the term “Fenian” could be neither racist nor offensive and the expression used at the match concerned, i.e. “Fenian Bastards”, was not racist…. [and].. that its supporters had used the disputed word “Fenian” because the Celtic FC supporters themselves had used it. Therefore, it had never crossed the opposing supporters‟ minds that it could ever be considered discriminatory
This again would seem to draw on the Mens Rea (guilty mind) principle that if there was no discriminatory intention then the fans could not be guilty of discriminatory conduct. Somewhat surprisingly, it transpires Ajax had contacted the SFA in relation to this line of argument:
(T)he Scottish Football Association’s disciplinary services manager had commented that half the Celtic supporters used the word “Fenian” as a badge of honour while the other half might consider it unpleasant. The Scottish FA did not consider the word “Fenian” racist. It neither warned nor punished Celtic FC or Rangers FC for calling each other “Orange Bastards” and “Fenian Bastards” respectively, since it considered such provocative words part of the game.
David Scott reported that:
…he was aware of the banner in question, since it had been widely commented on in Scotland. He had been shocked to see it. He did not know whether the Scottish FA punished the use of the term “Fenian Bastards” during domestic matches. He indicated that, if this banner had been displayed in Scotland, the person responsible would have been prosecuted. He confirmed that “Fenian Bastard” was definitely derogatory towards Roman Catholics. He thought the word “Fenian” by itself was not derogatory, but it was when combined with the word “Bastard”.
In other words that regardless of whether the word ‘Fenian’ itself is derogatory, using its divisive characteristics to discriminate would certainly be. By way of comparison had the banner referenced ‘Black’ or ‘Jewish’ or any other protected category such as race, religion, ethnicity it may also have been clearly discriminatory.
David Hassan was asked to draw on his historical background to define the word ‘Fenian’.
“Fenian” came from the Irish word “Fianna”, which meant “legend” or “hero”. The Fenians (also known as the Irish Republican Brotherhood) had been formed in 1858 and were committed to removing the British presence in Ireland by military means. The word had originated at a time of remarkable levels of emigration from Ireland to many parts of the world, including Scotland, which in turn had resulted in the formation of Celtic FC. The Fenian movement was therefore a political and ideological organisation dedicated to the formation of a sovereign and independent Ireland.
In more recent times, the term “Fenian” had been used as a derogatory reference to members of the Roman Catholic faith, almost exclusively in Scotland and Northern Ireland. The term “Fenian Bastard” was particularly derogatory, implying, on the one hand, support for a militant form of Irish republicanism and, on the other, strong disregard for Catholics. In the context of Celtic FC, therefore, on account of its reputation as a club with strong Irish nationalist and Catholic connections, the use of the term “Fenian Bastards” to describe the club and its supporters was discriminatory and sectarian.
In his opinion, the word “Fenian” was deeply derogatory towards Roman Catholics and people of Irish origin. He also indicated that Celtic FC supporters used it during their matches in an ironic way.
In the deliberations case law involving the 2013 charges against FC Zenit were considered in that The criteria for assessing the discriminatory nature of a symbol also apply when evaluating whether specific terms, words or expressions should be considered discriminatory or not.
The guiding principle was that if it is likely that:
… a large number of reasonable spectators or viewers consider a symbol as racist and conclude that the people who displayed it were promoting discriminatory behaviour or ideas, the symbol contravenes the rule forbidding discriminatory and racist messages.
In the present case, the Appeals Body will take this guidance into consideration in its analysis. Specifically in relation to the traditional rivalry between Celtic and Rangers it was noted:
At so-called “Old Firm” matches, i.e. derby matches between Celtic FC and Rangers FC, the fans of both clubs are accustomed to expressing their mutual hatred by fighting and insulting each other, with anti-Catholic songs performed by Rangers FC fans and IRA songs by Celtic FC fans. Among these provocative songs, “Billy Boys” and “Fenian Bastards” are often performed by Rangers FC supporters. In Scotland, this religion-based hatred is known as religious sectarianism or bigotry. Without going into the complex historical reasons for this, it is important to note that Celtic FC is traditionally Catholic while Rangers FC is traditionally Protestant.
It went on to reflect that Scottish public authorities believe that football should not be used as a platform by individuals seeking to spread their bigoted views and that in the last year, one supporter was banned from football matches for performing offensive and sectarian chants at a match between Rangers FC and Motherwell FC.
Its conclusion on the use of “Fenian” was that:
…(I)n Scotland, references to “Fenian Bastards” are not only derogatory, but also unlawful and could lead to criminal proceedings. For UEFA and the Appeals Body in particular, this proves that a large number of people perceive this expression as offensive and that its use at football matches should therefore be considered an offence and punished accordingly.
This calls into serious concern the judgement of the SFA who had not only taken a different line on the nature of such phrases but actively advocated that they were acceptable on behalf of the defendant.
While the original decision had taken a view that the discriminatory nature of the banner had not been totally clear and “there was some doubt in the Club’s favour” (and therefore elected to charge Ajax under Art. 16 only) that the Appeal Body could not agree with that conclusion, piling more criticism the SFA’s way. Instead:
…(I)t is well known, at least in Scotland, that a message or song referring to “Fenian Bastards” is an anti-Catholic message that is deeply offensive and discriminatory towards all Catholics and people from the Republic of Ireland.
It referenced that the Appeals Body had already overturned a similar decision of the Control and Disciplinary Body in 2005 and considered the “Billy Boys” song performed by the Rangers FC supporters, containing a reference to “Fenian Bastards”, to be sectarian and discriminatory. Also the 2011 decision on “We hate Celtic Fenian Bastards” being discriminatory conduct. It stressed that “UEFA case law in this field is and must remain clear and consistent, and should have guided the Control and Disciplinary Body’s first-instance decision”.
This is a stance that the SFA would have been aware of, so to take a contrary view to the same issue is quite staggering and should have informed their decision making also. On that subject the conclusions went on to note (emphasis added by the author):
In this context, the fact that the Scottish FA’s disciplinary services manager thought that half the Celtic FC fans would consider the use of “Fenian Bastards” offensive while the other half would not, does not demonstrate that the term is inoffensive. Even if this statement were true, the fact that half of the people referred to as “Fenian Bastards” feel offended is sufficient for UEFA to consider the expression offensive and to prohibit it in football stadiums. Moreover, the fact that the Scottish FA, for its own internal reasons, does not consider references to “Fenian Bastards” as an offence cannot prevent the UEFA disciplinary bodies from punishing such behaviour, since they are independent bodies. This argument, which therefore is clearly unfounded and even reckless, does not merit a more detailed assessment.
Tackling the ‘Mens Rea’ argument relating to Ajax supporters use of this terminology it went on to report:
The same answer can be given to the respondent’s argument that Celtic FC supporters use the term “Fenian Bastards” to describe themselves. The assessment given above demonstrates that the prohibition of such objectively discriminatory conduct is not a matter of communitarianism. Moreover, it is important to point out that the Celtic FC supporters concerned used these words at domestic rather than UEFA matches.
Since Art. 14 takes precedence and there were no mitigating circumstances Ajax were therefore punished with the minimum sanction of a partial stadium closure, rather than the €25,000 fine that had been previously issued.
2014-2016 – Linfield
Now we are in no way saying the following represent an impartial or complete picture of the circumstances around this point relating to Linfield, but this has already been a word intensive piece and it does allow for expedition of what by now will be familiar themes hitting most of the key take-aways and further detailed picking apart produces only marginal gains. Its author ‘Lint’ is a Celtic fan. Yojimbo who comments at the end is a Rangers man. It does however also provide a nice link into the list of current events that were referenced way back at the start of Part 1 and whether modern Scotland is ready to embrace a change in how it now views the issues of discrimination, regardless of which “ism” its branded under.
Now, one key bit to pick out from the summary is that the IFA approach was markedly different to that of the SFA, though it did have further case law to draw on and clearer expectations of outcome.
Jimbo’s point at the end is equally important. The clubs have a duty as well to make sure their fans understand all this and will work with them in their combined best interests. While fans remain left out as participating stakeholders in the game, we will rely on clubs and associations to ensure the message is received – and they have both been letting us down.
Take-aways from Part 3
Having arrived at the latest developments in this, the recapped points to take-away would be:
- The more mitigating factors and efforts being made to stamp out discriminatory behaviours – the less severe punishments from UEFA will be, though they will likely continue to escalate in order to act as a deterrent;
- That UEFA will likely treat any ‘discriminatory’ behaviour similarly regardless of whether its styled as ‘sectarianism’, ‘racism’ or other;
- That certain songs and phrases (including the Billy Boys, ‘fenian bastards’, etc) are explicitly considered already to be discriminatory in nature and changing the words or making incoherent will not be deemed to change the underlying sentiments in any charge brought;
- That UEFA’s answer to a complex problem of understanding particular discruminatory behaviour less widely understood, will continue to be to utilise the skill-sets of independent specialists who would be able to understand the nuanced nature of particular social environments;
- That they expect that National Associations will act likewise to stamp out such behaviours in domestic football too given that discrimination had no place within a sporting ethos; and
- That the latest charges Rangers have faced are not a new environment – just one they had not been directly exposed to during a period of its evolution – but one all Scottish clubs must now adapt to.
[Part 4 – the concluding part of this series will be released over the weekend]