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  • Writer's pictureMark O'Neill

The Kiko Casilla Case and the Balance of Probabilities

Updated: Mar 15, 2023

The recent case of Kiko Casilla, the Leeds United goalkeeper, banned for eight games by the FA for using racist language against Jonathan Leko of Charlton Athletic in the 28th September match between the two sides; threw up some rather interesting legal issues (in addition to some interesting submissions from Casilla himself who claimed he had never heard of the word 'n****r'). Primarily, the case was a fascinating example of how the standard of proof used in sporting disciplinary hearings, the civil standard known as the 'balance of probabilities', and it should be applied in cases involving serious charges such as the one brought against Casilla. The panel also emphasised that they do not believe Casilla to be a racist person.

What was the case about?

The case brought against Casilla centred around an allegation of racist abuse concerning an incident with Charlton Athletic forward, Jonathan Leko, on loan at the club from West Bromwich Albion. The charge against Casilla was that he called Leko "a fucking n****r" in the 71st minute of the match between the two sides at The Valley on 28th September 2019, in which Charlton won 2-1. The incident followed an altercation between Casilla and Leko at a Charlton corner in which there was a small scuffle between the two while Leko was standing in front of Casilla.

How are disciplinary cases brought by the FA judged?

Generally in sporting disciplinary matters, cases are decided by the civil standard of proof, known as the 'balance of probabilities' (i.e. 50+% sure). In essence, this means to find a charge proven against a defendant; a panel must believe that it is more likely than not than that the allegations made are true. The primary exception to this comes in doping cases which uses 'the comfortable satisfaction' standard (i.e. around 75% sure), which is seen as falling in between the balance of probabilities and the criminal standard of 'beyond reasonable doubt' (i.e. approximately 99.99% sure). An example of this would be Regulation 26 of the FA Anti-Doping Regulations, brought in to align their processes with the World Anti-Doping Association (WADA).

How was it applied in the Casilla case?

In a detailed and highly reasoned written decision, the three-person consisting of Graham McPherson QC, Stuart Ripley (ex-Blackburn and England winger who is now a solicitor), and Marvin Robinson, (the former Bolton and Watford striker), the panel outlined the evidence in a systematic and logical order and showed there reasoning for their decision.

The most compelling part of the decision was their explanation in paragraphs 20 to 24, of how the balance of probabilities standard stipulated in Regulation 8 of the FA Disciplinary Regulations should be applied in serious cases such as one it was faced with. Although the test before the panel was considering whether it was more likely than not that Casilla said what he was alleged to have said, a guilty verdict would have profound consequences on Casilla. The panel outlined the case law on the application of the balance of probabilities standard, explaining that there are two considerations involved in assessing the evidence in a balance of probabilities case:

  1. That the more serious the allegation, the stronger or more cogent the evidence needs to be before an allegation can be proved. This is from Lord Justice Richards judgment in R (on the application of AN) v Mental Health Review Tribunal (Northern Region) [2005] EWCA CIV1605

  2. That the more serious the allegation, the less likely it is that it occurred. This means that the inherent probability of an event should be taken into account when considering whether on balance an event occurred. This stems from Lord Nichols judgment in Re H and Others (Minors) [1996] AC 563, a case which dealt with sexual abuse allegations made in the issuance of care proceedings.

In light of the above, these two points do not mean that this creates a heightened standard of proof, it means that where an event is more improbable and the more serious the allegation, it will require better evidence to persuade a panel that it happened. This was built upon by Judge Bryan in JSC BM Bank v Kekhman [2018] EWHC 79 when he said that "the more serious the wrongdoing, the less likely it is that it was carried out because most people are not serious wrongdoers".

In applying this to the Casilla case, the panel was presented with evidence that the alleged behaviour from Casilla was considerably out of character for him, as he had many character witnesses such as Rafa Benitez, and Thomas Nkono, his former goalkeeping coach. The panel agreed with this and believed that Casilla is not a racist himself, so what he was accused of saying was inherently improbable, so needed strong evidence to demonstrate that it was more likely than not to have happened. The panel was persuaded by the consistency and cogency of the evidence presented by Leko himself, and his teammate Macauley Bonne, who was in close proximity and also claimed to have heard Casilla's abusive comment.

This case is an excellent demonstration of how a disciplinary panel goes about its work, and how the balance of probabilities standard should be applied.

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