Scott Manson: The video assistant referee as a matter of life and death
Reading time: 5 minutes
Scott Manson
When the allied victors surveyed in the 1940s and 50s the rubble of a European continent – and world – ravaged by the breakdown of the rule of law they sought to draw up a charter of universal human rights and freedoms designed to guard against a slip back into the abyss. It might be surprising if, in so doing, they had it in mind to protect the sanctity of the right to express strident views on a handball incident or offside goal. But the living instrument of the European Convention on Human Rights and Fundamental Freedoms is such that its reach does indeed extend to the modern theatre of war which is the post-match interview. And the jurisprudence of the European Court of Human Rights should now, perhaps, give pause to the footballing authorities in reflecting whether the application of their disciplinary schemes might represent a standing infringement of the right to freedom of expression.
Imagine, if you can, the feeding frenzy which would attend a Scottish top-flight football manager or player expressing themselves in the following way in connection with a match official:
“He had a career full of untenable decisions and now, as a VAR, he is following the same shameful path. He flagged up a penalty kick after a push that was so light that it made their player fall in slow motion. However, he turned a blind eye to clear fouls against us! A few matches ago the same VAR overlooked a very clear foul which should have resulted in a penalty kick. There can be no doubt that this referee seems to have an issue with impartiality, and this should lead to his withdrawal from the matches which would decide the championship”.
For the journalist, succulent red meat. For the human rights lawyer, a value judgment protected by Article 10 of the ECHR. And, in terms of the Scottish FA’s rules, surely a clear instance of criticising a match official in such a way as to indicate bias and incompetence and, therefore, a flagrant breach of rule 72 of its judicial protocol and articles of association. The difficulty, of course, is that all of these things may be true at once and, accordingly, a tension arises between the SFA rules, on the one hand and the rights guaranteed under Article 10 of the Convention on the other.
The imaginary statement attributed above to the unfortunate subject of the probing spotlight just outside the away dressing room is, in fact, cribbed largely from a real statement made in Portugal about a real VAR who had adjudicated a match between C.D. Feirense and Benfica. Perhaps unsurprisingly, the domestic authorities and Court of Arbitration for Sport found the maker of the statement in breach of rules broadly equivalent to the SFA’s rule 72. But on an application to the European Court of Human Rights, it was held that these decisions represented a compensatable infringement of the statement maker’s article 10 rights. Properly considered, the statement was an opinion or value judgment redolent of hyperbole, exaggeration, metaphor and speculation. No allegation of actual corruption was made, and the statement needed to be viewed as, in effect, an over-the-top evaluation of the referee’s performance in a manner which was common in the context of football competitions. For all of this, see De Carvalho Marques & others v Portugal App. Nos 29703/19 & 5 others, 7 July 2026 at [60] – [71]; [120] – [128]; and [135].
Now, it is trite and true that each case must be judged on its own facts and circumstances. But if the circumstances were as set out above, it is difficult to imagine the manager or player or club in question not finding themselves on the thick end of a complaint at the hands of the footballing authorities. And in light of the reasoning applied in De Carvalho this would seem to create a real difficulty when it comes to the authorities – and, if called upon, the courts - acting in a way which is compliant with the rights guaranteed under the Convention and Human Rights Act 1998 in circumstances where a statement represents a value judgment, even if expressed in an extremely hyperbolic manner.
Might the European Court have now given effect to a form of recognition of the essence of the Shankly dictum: “Some people believe football is a matter of life and death, I am very disappointed with that attitude. I can assure you, it is much more important than that”. Shankly was, of course, not simply a great Scottish manager, but also a veteran of the RAF who served in the war out of which the Convention arose. And his biographers have observed that his now widely quoted statement (cf. posters, t-shirts, mugs, pint-glasses and tea-towels in and around Anfield) was nothing more than a classic example of knowing wry humour and ironic devilment, intended to speak to nothing more than his own investment in the game. It may be that the compatibility with the Convention – and 1998 Act – of proceedings under rules like rule 72 needs now to be reconsidered in certain cases, as the ultimate authority on Convention infringement bears to have recognised what many in the game would already have told you. That is, those observing football are sufficiently intelligent to hear a statement like Shankly’s and appreciate its real intent in the context of a game that raises passions, without taking every word literally.
Scott Manson of 1Six Chambers practices in commercial disputes, construction, property and professional negligence litigation and has been instructed in a number of football matters acting for individuals and clubs before disciplinary panels, arbitral tribunals and the courts.
Share this article:
Subscribe to our newsletter to not miss articles like this one:
SUBSCRIBE
