It does not seem all that long ago that Alex Song, now at Barcelona, and Joey Barton, now at Marseille, were involved in an incident that inspired the question: when does sport stop being sport and become a criminal act? It was, in fact, 20 months ago and covered here on The Student Lawyer. This time controversy struck, and it wasn’t Song or Barton — it was Liverpool Striker, Luis Suarez, who is no stranger to controversy.
It appeared that, during the match on 21 April 2013, Suarez had hold of Branislav Ivanovic’s arm and bit him. Suarez admits biting him, describing it as ‘inexcusable’, and he has apologised to Ivanovic for his actions. Those familiar with the Uruguayan footballer’s history will be well aware that this is not the first time that Suarez has bitten another player on the pitch. In 2010, the Dutch Football Federation gave him a seven game ban for biting PSV’s Otman Bakkal. His club at the time, Ajax, banned him for two games.
The law in this area is clear. Consent to injury in the sporting arena is only operational if the behaviour can be reasonably regarded as being an activity you would accept by participating in the sport. Lord Woolf in R v Barnes  1 W.L.R. 910 wrote that consent exists unless:
…what occurs goes beyond what a player can reasonably be regarded as having accepted by taking part in the sport.
Suarez has received a ten game ban. A statutory three for violent conduct plus an additional seven.
Biting an opponent is so far outside of the realms of what is expected in most sports that, if raised, the activity alone would certainly be found to be criminal. This is subject, of course, to requisite harm being inflicted on the victim. It must be asked why the Police chose not to arrest Luis Suarez for an assault, however, this is likely to be an exercise in futility. The Police are unlikely to press charges, unless the conduct goes so far beyond what is expected that it demands prosecution, even though we can all agree that a crime has been committed because they exercise deference to the sport’s national governing body.
As with the vast majority of sports violence incidents, this will be dealt with primarily by the national governing body – the Football Association (FA) – and Suarez’s employer, Liverpool Football Club. Suarez has had a chequered past in European football: from his time at Ajax, where he was suspended for biting another player, to his time at Liverpool where he received a lengthy ban for making racist comments to Patrice Evra. He has received considerable scrutiny from the media and managers for cheating by drawing penalties, or attempting to draw penalties, that had not been earned and now there is yet another situation where his judgment has been severely compromised and he has bitten another player.
Suarez has received a ten game ban from the FA: a statutory three for violent conduct plus an additional seven. The Independent Regulatory Commission’s written reasoning has yet to be released explaining why this is the case. Liverpool Football Club issued Suarez with an undisclosed fine. Incidents such as these highlight the disconnect between conduct as a sporting figure and conduct in other walks of life. Football is perhaps one of the few sports where you can bite an opponent, cheat in order to get beneficial treatment, make racially motivated comments and still find yourself in a job.
Brendan Rodgers, Liverpool FC’s manager, criticised the punishment given to Suarez, alleging that the punishment is against the man, rather than the incident:
We have a punishment with no intention of helping [his] rehabilitation.
What Rodgers is perhaps blindly dismissive over is that in a prior incident where Suarez bit another player, he received a nine game ban. Two from his club, and seven from the Dutch Football Federation. This demonstrates two things: a nine game ban did not dissuade him from repeat offending, and that the player has a history of violent conduct. What does Rodgers seriously expect the FA to do? For the FA to turn a blind eye, give him a three game ban and offer counselling? His player is lucky he is not being prosecuted. He may have had the benefit of the doubt the first time but this is a repeat offence. I am by no means conservative when it comes to rehabilitation, but it seems as though rehabilitation in this instance is a code word for leniency despite the fact that a terrible, criminal act has been committed on the football pitch because one of his players lost their temper.
When football pundits and sports commentators talk about incidents such as these, there is never an unequivocal ‘this was wrong and he needs to be punished’. There is always a reference made to the talent and skill the footballer possesses, as if in order to bear witness to the majesty of Luis Suarez and others like him, we have to accept their ‘darker’ side and put up with the biting, cheating and racism. It is one of the many bubbles within which football lives, isolated from the ordinary world.
Would your employer turn a blind eye if you assaulted another employee? Or racially abused them? It is highly unlikely.
There is an added factor often given reduced attention when these discussions rise. Whilst Luis Suarez is a worker, and an employee of Liverpool FC, he is also a commodity. He was sold to Liverpool FC from Ajax for £22.8 million pounds. His presence at undeniably aids revenue in terms of ticket sales, merchandise, etc. It would be naive to suggest that Liverpool FC would get rid of a commodity that aids their chances of securing more money or that they would do anything to diminish or jeopardise his willingness to play for them. They may fine him, they may suspend him but they are not going to do so in such a way that is going to make him think about leaving them.
When we prioritise talent and skill over right and wrong, a message is sent to current and future footballers. It doesn’t matter what you do, the sport of football will be there to forgive you as long as you can play well. When Duncan Ferguson head-butted another player on the pitch, he went to prison. When Eric Cantona kicked a fan in the stands of Selhurst Park, he was sent to prison and received a lengthy ban. When Chris Kamara broke the cheekbone of another player, he received a conviction for a Section 18 (of the Offences against the Person Act 1861) offence. That being said, Duncan Ferguson returned to playing the game with Everton and Newcastle, Eric Cantona with Manchester United and Chris Kamara with Stoke City.
Each of these cases are exceptional in that they are the few in top flight football that received criminal sanction, but also because what happened afterwards shows that, because of their footballing talent, clubs were more than happy to accept them back into the fold. If you can headbutt someone on the pitch, break their cheekbone or jump into the stand to kick a spectator and still have a job, why then should we be surprised that a player who bites another player is still allowed to play the game?
In my cynical view, it is redundant to seriously discuss the role of the FA in regards to punishment in the footballing world because it seems that the authorities are more concerned with superficially showing the audience that something has been done, rather than earnestly addressing the problems in the sport. There will always be an apologist culture that suggests we should put up with bad behaviour because of the good that they do on the pitch. Consistency will always be a factor used to criticise the FA: why should one act be capable of a yellow card when seen by one referee and the same act, when not seen by any referee at all, be worthy of a ten game ban? It would be better to regard this incident solely as a talking point because Luis Suarez will continue to work — safe in the knowledge that it doesn’t matter what he does, he will still be able to play football and the FA will allow him to do so.
-  R v Barnes  1 W.L.R. 910 at 914