The National Chamber for the Fight against Discrimination and Racism (NCDR) has been active since July 2021 as a disciplinary body within the Royal Belgian Football Association (RBFA). The NCDR’s purpose is to investigate, assess, and sanction incidents of racism and discrimination in Belgian football.
Procedure and Scope
Incidents of discrimination or racism can be reported via referee reports, complaints, and/or through the “Come Together” reporting platform on the RBFA website.
With the introduction of the “Come Together” platform, the RBFA has made it possible to also report incidents anonymously. In doing so, it hopes to lower the threshold and gain as much knowledge as possible of acts of discrimination or racism. However, the question arises whether prosecution (solely) on the basis of an anonymous report is compatible with the right to a fair trial and the rights of defense, as guaranteed by Article 6 ECHR. The European Court of Human Rights has already developed in its case law several conditions that an anonymous witness statement must meet in order to serve as evidence [1]. The Belgian Court of Cassation has already endorsed this case law [2], stating that a defendant must be able to challenge all evidence in an adversarial manner in a public hearing [3].
Upon receipt of a report, the file may be forwarded to the Federal Prosecutor’s Office of the RBFA, which may initiate an investigation. In doing so, the Federal Prosecutor may request additional information or clarification from the clubs and/or players involved. Based on its investigation, the Federal Prosecutor’s Office may then decide to bring an action before the NCDR against the party or parties concerned.
Those involved will then be summoned to a hearing of the NCDR, at which their presence is mandatory. They may, of course, be represented or assisted by a lawyer.
Following the hearing, the NCDR will decide at first instance whether or not the incidents have been proven, and may impose sanctions (with or without suspension) on the parties concerned for the established breaches of the prohibition on discrimination and racism.
The RBFA bases this disciplinary power over its members on the RBFA Regulations, which are qualified as a contract between the parties, and to which members have therefore (albeit compulsorily) agreed.
It is somewhat unusual, however, that the RBFA also targets supporters as non-members in its RBFA Regulations for acts of discrimination and racism, even though they have never agreed to the regulations and are therefore, in principle, not bound by them. Supporters therefore cannot be sentenced, for example, to suspensions or fines.
Article B11.238 of the RBFA Regulations, however, gives the NCDR the power to sanction non-members who commit acts of discrimination and/or racism in connection with an activity organized under the responsibility of the RBFA with a refusal of a (future) membership for a minimum of six months up to a maximum of two years.
Without going too deeply into this in the present article, it should be noted that supporters may also incur heavier penalties (such as stadium bans) for acts of discrimination and/or racism under the internal regulations (RIO) of individual clubs, which are obliged to include a ban on discrimination and racism. On the basis of a breach of the RIO, supporters may be given a stadium ban by the RBFA National Chamber for Civil Exclusions, an RBFA body that exists alongside the NCDR.
Infringements
Article B11.235 of the RBFA Regulations imposes a general prohibition on discrimination and racism.
It is also important to note that breaches of Article B11.235 of the Association Regulations can be prosecuted disciplinarily without any intent on the part of the offender being required.
The RBFA Regulations here align with the established case law [4] of the Court of Arbitration for Sport (CAS), which clearly states that, when assessing whether a statement or chant can be tolerated, the intention or motive of those involved is irrelevant. The impermissible nature must, in other words, be apparent from the wording itself. With regard to assessing whether specific wording is racist, the CAS held that it must be judged from the perspective of the “reasonable and objective observer” [5].
From the same perspective, the Belgian Court of Arbitration for Sport (BAS) clarified that “to assess whether a statement constitutes a (group) insult, an objective test must be carried out to determine whether the statement is insulting according to common usage. This is the case when the statement is intended to portray someone in a negative light to the public” [6].
In addition, the NCDR generally also applies Belgian Circular OOP 40 of 14 December 2006, which provides guidelines on unacceptable expressions and symbols at football matches [7].
According to this circular, the tolerance threshold for offensive, racist, and discriminatory expressions and symbols is exceeded if, in connection with a football match, someone publicly:
- incites others to discrimination, segregation, hatred, or violence against a person, a group, a community or its members, because of a so-called race, skin color, origin, national or ethnic descent, sexual orientation, disability, or health condition of that person, the members, or some of the members of the targeted group or community, or
- makes public their intention to discriminate, hate, use violence, or segregate against a person, a group, a community, or its members for the same reasons, or
- alone or in a group, on the occasion of a football match, incites hatred, anger, assaults, or injuries against one or more persons.
The circular also provides a non-exhaustive list of examples of chants that are prohibited in the above context.
Finally, clubs must be aware that they bear strict liability with respect to violations committed by their supporters. This means that if a supporter of a particular club makes discriminatory or racist statements, the Federal Prosecutor’s Office may also decide to bring an action against the club before the NCDR.
If the offending supporter can be identified, however, the Federal Prosecutor’s Office usually targets only that supporter (and not the club). The difficulty often lies in identifying supporters, especially in amateur leagues. Amateur clubs often lack advanced cameras and personalized ticket sales to easily identify their supporters. As a result, it is precisely the less financially strong amateur clubs that, on the basis of their strict liability, risk fines or matches behind closed doors, which can lead to major financial setbacks.
Sanctions and Alternative Measures
Sanctions imposed by the NCDR may range from fines to suspensions and matches behind closed doors. In addition, the NCDR may also decide to impose an alternative (educational) measure instead of a sanction.
For example, the NCDR offers educational programs in cooperation with organizations such as the Kazerne Dossin, the Royal Museum for Central Africa, and Rainbowhouse. These initiatives are aimed at raising awareness and changing behavior. In this way, those involved are encouraged to contribute constructively to a respectful football community. If the educational measures are not complied with, sanctions may (of course) still be imposed.
Legal Remedies
Since the NCDR was established within the RBFA Disciplinary Council for Professional Football and is therefore part of it, appeals against NCDR decisions must be lodged directly with the Belgian Court of Arbitration for Sport (BAS).
Although the BAS can in most cases only carry out a legality review of RBFA decisions, in racism cases it exceptionally has full jurisdiction, meaning it can also assess the merits of the case.
Such an appeal to the BAS against an NCDR decision must, on pain of inadmissibility, be lodged within seven days of the notification of the contested decision.
However, the high costs of such arbitration proceedings represent a significant obstacle for those involved from the amateur leagues, who are therefore often discouraged from actually pursuing a remedy.
Conclusion
The establishment of the NCDR within the RBFA represents an important step in the fight against racism and discrimination in Belgian football. The regulatory framework makes it possible to hold both members and non-members, such as supporters, accountable for acts of discrimination and racism.
The NCDR has a wide range of sanctions and alternative measures at its disposal, which could, in the long term, bring about a sustainable change of behavior on Belgian football fields.
Although the absence of the requirement of intent and the strict liability of clubs make it easier than in ordinary criminal law to sanction such acts, in practice questions arise about the near reversal of the burden of proof and the difficulties that those involved face in proving their innocence. This applies all the more when the Federal Prosecutor’s action is based on one or more anonymous reports.
Finally, it appears in practice that it is mainly amateur clubs and players who, because of the strict liability of clubs and the fact that appeals are only possible before the BAS, are unable to fully exercise their rights of defense.
The lawyers of PowerPlay have extensive experience and assist clubs, players, and supporters in proceedings before the NCDR and the BAS.
Do you have questions or would you like legal advice? Please feel free to contact us.
[1] ECHR 28 February 2005, No. 51277/99, Krasniki v. Czech Republic, §§ 80-83.
[2] Cass. 12 May 1998, AR P. 96.0263.N, Pas. 1998, 556.
[3] Cass. 23 June 2015, AR P.14.0406.N, Pas. 2015, 1662.
[4] See e.g. CAS 13 June 2014, 2013/A/3324 & 3369, GNK Dinamo/UEFA; CAS 24 June 2016, No. 2015/A/4265, Feyenoord Rotterdam N.V./UEFA; CAS 16 November 2017, Federación Mexicana de Fútbol Asociación (FMF)/FIFA.
[5] CAS 10 July 2015, No. 2015/A/3874, Association of Albania (FAA)/UEFA and Football Association of Serbia (FAS).
[6] BAS 169/20 of 8 July 2020, https://www.bas-cbas.be/cms/resources/arbitrale-uitspraak-08.07.2020-web.pdf.
[7] Circular OOP 40 containing guidelines on offensive, racist and discriminatory expressions and chants in connection with football matches, Belgian Official Gazette, 2 July 2007.