Part 2: Disciplinary proceedings and defamation
A few minutes of anger channelled through a few hundred ‘characters’ on social media has landed Mills with not one but five different battles to fight.
To summarise, these are:
The disciplinary proceedings before the FA;
Two civil claims for defamation before the English courts, one brought by Russel and the other brought by the referee;
Engaging with social groups such as Women Can, to mend the offence caused by his sexist remark; and
A negotiation with his sponsors, to try and salvage his sponsorship deal.
Needless to state, navigating the complex waters Mills finds himself in, would not only result in significant costs, but also time, and more importantly time spent away from refocusing himself on getting back to playing his best football.
In what was his first wise move over the last couple of days, Mills decided to instruct a solicitor to represent him against all the parties referred to above. Fortunately, the firm of solicitors he instructs has the capability to not only represent him before the before the courts and expertise in reputation management, but also possess the regulatory and commercial acumen required for FA proceedings and negotiations with sponsors, respectively.
As a first step however, to mitigate the reputational harm caused to Russel and the referee, and to protect Mills’ own position when facing a defamation claim and defending FA charges, Mills was advised to put out a public apology on Twitter, which he did. His statement read as follows:
“Apologies to @CR10 and ref for my comments over the weekend, sometimes the moment gets the better of us. I accept my red card and hope to come back stronger in a few weeks’ time”.
Part 2 of this story will focus on how Mills proceeded to defend the charges against him, before the FA and the civil courts.
Disciplinary proceedings – the FA
Having been notified of Mills’ statement, the FA decided to charge Mills under rule E3(1) of the FA Rules, which provides that participants “shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour” (the “Charge).
Given that his statement was made on social media, the case was allocated to ‘Fast Track 2’, in accordance with relevant rules under the FA DR.
The consequence of this is that a standard penalty would not be offered, providing the FA’s Regulatory Commission with the wide discretion to impose any penalty as it deems fit.
In his reply to the Charge, Mills was presented with four options. He could either:
Admit the Charge and submit any mitigation in writing for a Regulatory Commission to consider on written submissions;
Admit the Charge but request a personal hearing before a Regulatory Commission in order to present mitigation;
Deny the Charge and request to contest it at a personal hearing before a Regulatory Commission; or
Deny the Charge and submit written material for a Regulatory Commission to consider on written submissions.
In light of the public backlash against him, together with the threat of losing sponsorship and civil proceedings for libel, Mills’ lawyers advised him to pursue option 2, namely, to admit the charge but request a personal hearing in order to present mitigation.
At the hearing, Mills was represented by his solicitor and counsel who pleaded mitigation on the following grounds:
He deleted his statement immediately;
He issued a public apology in the week following the incident;
He was genuinely sorry for and regretted his actions and was already training by himself to come back to football at the earliest opportunity; and
He had attended sessions on anger management with a sports psychologist and could already feel his short temper improving in his daily life.
Unfortunately for Mills, whilst the FA Regulatory Commission acknowledged the positive steps Mills had taken in the aftermath of his Twitter statement, it was considered to be insufficient to absolve him from punishment for his reckless statement after the match against Euston. When deciding on the appropriate sanction, the FA Regulatory Commission considered Mills’ disciplinary record. Given Mills had recently been sanctioned under The FA Betting Rules, this was considered to be a seriously aggravating factor. It was also highlighted that Mills was seen as a role model by many and as such the FA had to take a stance against statements which had the potential of inciting violence, spreading hate, were indecent or insulting and condoned bad sportsmanship.
As such, Mills was issued a fine of £20,000 along with a 7 match suspension (including the 3 he would serve for his red card).
The DR provide Mills with the ability to appeal the decision of the Regulatory Commission to an ‘Appeals Board’, but Mills was advised of the costs and time involved with a subsequent appeal as opposed to focusing his energy on getting back to football, and rebuilding his public reputation. Sensibly, Mills chose the latter, and agreed to serve the FA’s sanction.
However, as demonstrated below, disciplinary proceedings before the FA do not prevent the civil claims being presented against him.
The civil claim(s) – defamation
The law of defamation finds its source in the continually evolving common law, and more recently, codified by the Defamation Act 2013 (the “Act”).
Put simply, a defamatory statement is one that adversely affects a person’s reputation. However, defamation is broadly of two types, (a) libel; and (b) slander.
Libel relates to recorded forms of publication, such as print, broadcast, or online (including social media), whereas slander refers to more ‘transient’ forms, such as spoken words or gestures.
As Mills’ comment was recorded on social media (and published thereafter to millions of people), the letters of claim he received were in respect of his libellous comments.
There is no defined test as to what constitutes a defamatory statement, and any decision would certainly turn on the nature of the statement and the words used. However, as a general rule, the test is whether the statement tends to lower the claimant in the estimation of right-thinking members of society generally.
In addition, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant (section 1(1), the Act).
Harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss (section 1(2), the Act).
Here, as Mills has defamed Russel and the Referee, their requirement to show serious harm is lower than the test applicable compared to, say, a football club that trades for profit presenting a defamation complaint.
Given the highly defamatory meanings that the statements are likely to convey, namely that Russel is guilty of taking unlawful substances and is a cheat, and the Referee is guilty of taking financial bribes thus match fixing, unfortunately for Mills the claimants would meet the serious harm test required by the Act.
In addition, whilst the statement on Twitter was only online for minutes it was liked and retweeted a few thousand times and reported later by the national media. It is fair to say that the statement was widely circulated, which again bolsters the claims against Mills.
The following remedies are some of those available in a defamation claim:
a. Damages: An award for damages is perhaps the most common remedy. Damages are usually ‘compensatory’ in nature, in that they will serve to compensate the claimant for the distress and / or loss suffered as a result of the defendant’s defamatory statement(s). In some instances, courts may even award ‘aggravated damages’, where the defendant’s behaviour has added to the hurt caused to the claimant (for e.g. failure to apologise). In exceptional cases, damages may even be ‘exemplary’ or ‘punitive’ with the intent to punish a defendant for its misconduct (for e.g. where the claimant makes a defamatory statement for profit).
b. An injunction: Injunctions in defamation claims are uncommon, as damages are viewed as the adequate remedy if a statement is found to be defamatory. However, interim injunctions are made albeit very rarely and more commonly, final injunctions may be granted to restrain the defendant from making similarly defamatory remarks or statements.
c. Publication of court’s judgment (a summary) / removal of statement: Where a claimant succeeds in a defamation claim, the court has the power to order the publication of a summary of the judgment, in a medium and manner as agreed to between the parties 3. It also has the power to order the removal of the statement / prevent the distribution / exhibition of such statement via relevant media 4.
Defences
Generally, potential defences to these defamation claims Mills faces would likely include consideration of (a) truth; (b) honest opinion; and (c) public interest.
a. Truth: It is a valid defence to a claim for defamation for the defendant to show that the meaning conveyed by the statement is true. This would be very difficult for Mills, as the referee had previously been known for his integrity and Russel had never returned a positive doping result. If Mills relied on this defence, refused to apologise and lost at trial, it is likely that aggravated / punitive damages would be awarded against him.
b. Honest opinion: It is a valid defence for the defendant to show that the statement was his honest opinion. In order for this defence to succeed, the statement must be of opinion and not of fact, it must indicate some factual basis for the opinion, and the opinion must be one that could be held by an honest person in possession of the facts.
We are all entitled to our honest opinions. The law of defamation provides this defence to claims presented when one is simply giving an honest opinion (formerly known as “fair comment”). However, the statutory defence of honest opinion is contained within section 3 of the Act and the defence is not available if the defendant (Mills) is motivated by malice.
Mills’ statement was motivated by malice. He issued the statement in a moment of anger and was out to do maximum damage to those involved. There was no basis to his respective allegations of doping and match-fixing, thus demonstrating reckless disregard towards the truth.
c. Public interest: Finally, it is a valid defence for the defendant to show that the statement complained of was in the public interest and that the defendant reasonably believed it was. This line of defence would also be difficult for Mills to rely upon. Section 4 of the DA 2013 introduced the defence of public interest. Mills did not believe that publishing the statement complained of was in the public interest. He did not seek to verify the truth of the statements or afford Russel and the Referee any line of enquiry before making his allegations; he published his statement for other reasons entirely, namely because he was angry and published it in the heat of the moment.
Unfortunately for Mills, his statements damning Russel and the referee provided him with little room to successfully defend the claims or easily wiggle out of trouble.
On the other hand, there was more arguable points regarding any reputational harm allegedly suffered by Russel. This is because Mills could argue that his statement had no negative impact whatsoever on Russel, who since Euston’s victory over Paddington has emerged as the darling of English football. At the time of the hearing, Euston sat comfortably atop the league table, Russel was the league’s top scorer and had returned 3 negative doping test results in as many months. Mills’ statement about him being a ‘doper’ was all but forgotten by Russel’s millions of supporters, both online and offline.
However, Mills was advised that in light of the strong merits of both of the defamation claims against him, and for commercial and pragmatic reasons, the best course of action would be to reach a commercial settlement with Russel and the referee.
Mills agreed to pay a sum in lieu of damages to each party. Russel donated his damages sum to a Euston children’s charity. Mills also agreed to make a public statement, apologising again for his harmful comments:
“I deeply regret my actions, both on and off the pitch, during and after the match against Euston Athletic. I consider my actions unacceptable and out of character and I apologise to all those who I may have offended. In particular, my sincere apologies to Connor Russel and the referee – two thorough professionals who did not deserve to be on the receiving end of my untrue social media comments. In doing so, I have let down myself, my family, my teammates and the fans.
I have learnt the hard way as I serve the remainder of my suspension, but I hope to put the incident behind me and get back to doing what I love most – playing football.”
To find out about how Mills salvages his sponsorship deal and engages with those that he offended, check out Part 3 of this series.
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It must be noted that under the 2019 version of the FIFA disciplinary code, players can now be sanctioned for their behaviour on social media, arising out of unsporting behaviour towards an opponent and/or match official or provoking spectators, as Mills did on Twitter. ↩
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See for example, the case of Neymar who was suspended by UEFA for his comments on Twitter after the match against Manchester United in the 2018-19 Champions League. Eventually, Neymar appealed to the Court of Arbitration for Sport, who reduced his suspension from 3 matches to 2. ↩
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Section 12 of the Act. ↩
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Section 13 of the Act. ↩
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See: Cairns v. Modi [2010] EWHC 2859 (QB) where the claimant was successful in his claim against the defendant, who made allegations that the claimant was involved with match-fixing. ↩