Can't use the quote function, but this is also from RAWK:
In a similar vein, I wanted to jot down some comments about what I think are flaws in the judgment. Hopefully there will be an appeal, and we'll find out eventually what the appeal points would be. I think some of the following would be legitimate.
1. Goalmouth incident.
No video evidence of what was said. No other person heard what was said. Video does show Evra walking to Suarez and forcing him to back away. Evra claims the word ‘negro’ used 5 times at this point, but does not claim to have told the ref or anyone else, including Kuyt.
Commission: Accept everything PE said and reject everything LS said. Ie conclude “negro” said 5 times.
2. Post whistle incident.
Video evidence shows Suarez say something to Evra, and Evra say something to ref (while pointing at Suarez). Video shows Evra react with surprise to whatever Suarez said. However, Evra gives no evidence about what Suarez said at this point. Evra claims to have told the ref “he just called me a fucking black”. Neither the ref, nor the video, nor any other player confirm that. However, on Suarez own account, the word “negro” had been used once by this point. According to Suarez, this is where Evra said don’t touch me “south American” and Suarez replied “porque negro”.
Commission: Even though PE did not allege “negro” said at this point, Commission decide it was said. LS did allege “negro” said at this point, Commission say he is lying about the sentence used, but decide “negro” said at this point. Furthermore, the Commission base this finding on fact that PE’s face registered “surprise” at this point.
However, according to PE’s later evidence, he had already been called “negro” 5 times in goalmouth. So if this was a 6th, then why the “surprise”?
Moreover, Commission later commend PE’s credibility on the basis that PE told AF (who then told the ref) that PE had been called the N word “5 times”. But if PE reacted with “surprise” to being called “negro” on this occasion (which was Commission’s finding) then that would be “6 times” and not “5 times”. So why praise PE’s credibility for saying “5”. (Note – PE saying “5” would not disprove an assertion that he later counted more carefully and came up with “6”. However, under no circs should PE actually be praised for being reliable in saying “5” when actually, a more reliable number – according to Commission – was “6”).
3. Talking to ref the first time.
No suggestion made that PE alleged racist abuse during this conversation. Ie a conversation telling both players to calm down, PE did not say he was agitated due to being called “negro” (or any variation or translation of that word). Of course, according to LS, the word has been used once by this stage. According to PE, it has been used 5 times. According to Commission 6 times. So the non-reporting of the word by PE is not evidence that it was not uttered by LS. It might be some evidence of whether PE thought it equated to the N word.
4. Walking away from ref the first time.
Neither player alleges anything was said, and there is no video evidence that anything was said.
Talking to the ref the second time. Neither player alleges anything was said, and there is no video evidence that anything was said.
5. Walking away from ref the second time.
Video evidence shows that PE said something to LS, and LS replied. PE’s evidence was that LS said something to him, but he could not remember what.
At para 109, there is no mention that PE’s witness statement admitted that he initiated this conversation, but the Commission note that he claimed not to remember what he said to LS. (ie saying he did not remember his own words might have been an answer to a question, and not part of his statement.) LS makes no comment about what was said at this point (presumably he wasn’t asked).
Commission: Despite the fact that PE says he cannot remember this conversation, the Commission decide that LS used the word “negro” for a 7th time at this point. If it is true that this allegation was not put to LS, then that is an unsupportable finding. This is especially true given the fact that they decided that PE was a reliable witness, with good recollection, who thought that “negro” meant the same as the N word. The Commission offer no explanation of why PE would not recall this gross insult; nor of why he might treat this as less of a gross insult than any other occasion.
Furthermore, in para 306 of their reasons, the Commission comment on LS’s claim to have said “porque, negro?”. They find that he did not use this expression. They find that he did use the expression “porque tu eres negro”, and admitted it in case it had been caught on camera; when he realised it was not, he changed it to “porque negro”.
But Commission cannot have it both ways. If LD did indeed say “porque negro”, then that undermines the argument that LS told Comolli and “porque tu eres negro”. That unravels a massive part of the Commission’s reasoning that PE’s evidence should be preferred due to LS initially admitting to “porque tu eres negro”, and later changing it. ie the commission said he was inconsistent, and therefore unreliable. But if he did say “porque, negro?” then he is not inconsistent, and so this is not a reason to say he is unreliable.
Furthermore, if LD did indeed say “porque, negro?” then does it really undermine him that he is not sure when he said it. To be clear, if it is alleged that he never uttered “porque, negro?” then an inconsistent story about WHEN he said it does lend some weight to the claim that he never said it at all. BUT once it is admitted that he did say it, then it might be quite normal (and consistent with an honest person trying to tell the truth) that he cannot remember the exact sequence of events. Certainly the Commission cut PE a lot of slack in that regard.
In any event, the finding in para 306 (that LS did not say “porque, negro?”) is in direct conflict with the finding in para 359 (that LS definitely did say “porque, negro?”). At the very least, this makes the finding of the 7th instance of “negro” to be totally unsupportable. Arguably, the collateral importance of the issue to LS’s credibility means that the whole judgment should be set aside.
6. Evra gets booked.
At this time, according to referee, and Giggs, and PE, PE complained to ref about being called black. According to Giggs and PE, PE also complained to Giggs about the same thing. In the context, any normal person would think that this was an allegation against Kuyt, and Giggs says that is indeed what he thought PE meant. Ref claims not to have known who PE was talking about. PE claims this was a reference to LS.
NOTE: Commission makes no adverse findings about PE’s reliability on the basis that he seemingly made an allegation against Kuyt. Commission simply accept PE’s explanation that he was referring to what LS had allegedly said despite common sense and Giggs both saying otherwise.
Commission make no comment on fact that PE’s evidence was that he had been called “negro” 5 times in the goal mouth, and this was the THIRD time since then that he had spoken to the ref. Ie he had had 2 chances before now to make plain to ref that he was alleging that LS called him “black” (if that was the allegation – bearing in mind that he now claims that was what he meant when he spoke to the ref this time). As mentioned, the Commission did accept that the first time he was called to the ref, PE shouted from a distance that he was being called a fucking black, although this is not proven by lipreading evidence, and nor was the shout heard by any other witness. There is no analysis of why PE would (i) shout from a distance, but not make the allegation during two close conversations with ref but would (ii) wait until he was booked a few minutes later to make an allegation which seemed as though it referred to Kuyt, and not LS.
What is particularly notable is the discussion at paras 270 to 275 of the reasons. Apparently PE could not make his mind up about whether or not he used the word “again” when referring to this conversation with ref. Ie whether he claimed to have been called black “again”. The Commission felt this was unimportant. However, it is fairly important given that PE apparently chopped and changed his evidence on the point. Does he have a clear recollection or not?
Was he trying to assert the word “again” was used because this is the only time that the ref admits hearing the word “black” and the only time anybody else (Kuyt and Giggs) heard the word “black”? ie did he think he needed to claim he said “again” so as to be consistent with his uncorroborated claim that he did earlier report LS as soon as it happened? But the word “again” raises a problem of its own. It would clearly imply that he was trying to persuade the ref that Kuyt had just called him “black”, in addition to earlier such comments (either from Kuyt or another opponent). So why did PE sometimes say he said “again” and sometimes say he did not? It does make an important difference to the sense of the conversation with the ref at this point. Why is PE’s reliability not questionable? Why does the Commission not even ask themselves the question of whether PE was trying to give evidence which he thought helped him.
7. MU Dressing Room after match.
NB It is not clear if this is before or after PE spoke to Canal+.
All 4 players (Nani, Valencia, Hernandez, Anderson) give evidence that PE was angry and complained that LS had said that he, LS, wouldn’t speak to PE because PE was black. None of them say that PE complained that LS said that he had kicked PE because he was black. None of them say that PE alleged that LS had said “Dale negro, negro, negro”. PE’s evidence is different to that of all 4 team mates. PE’s statement does not claim that he said that LS had said that he, LS, wouldn’t speak to PE because PE was black. PE’s statement DOES claim that he told his teammates that Suarez kicked him because he was black.
Commission: PE did tell his teammates that , LS said he wouldn’t speak to PE because PE was black. But make no adverse findings re PE’s credibility over this omission from his statement. Likewise they make no adverse findings about PE’s credibility over the fact that none of the other 4 witnesses make reference to the “kicking” allegation. On the contrary, Commission decide that ALL FOUR witnesses may have forgotten that PE said this, and that PE is the only one to remember accurately.
{In contrast, there was a much more subtle difference than this between LS’s evidence on the one hand, and TWO (not FOUR) other witnesses – Kuyt and Comolli – on the other hand. This difference was taken as evidence that LS was lying about that particular issue, and – by extension – was therefore an unreliable witness who could not be believed about anything at all unless there was independent corroboration}.
8. Evra to Ferguson.
In English, PE tells AF that he was called the N word. Ie he does not use the word “black” which is the word PE claims to have used on the pitch 3 times (shouting to ref from a distance, speaking to ref – in an apparent reference to Kuyt - after being booked, speaking to Giggs – in an apparent reference to Kuyt - after being booked).
Commission: It is fine for PE to allege the N word was used. Commission make no reference to the fact that every schoolchild in their first term of learning Spanish knows that “negro” in Spanish is the word for the colour black (quite apart from any other meanings it has which would not – as the experts agreed – necessarily relate to skin colour when used as a form of address). Commission ignore how common the word “negro” is, and ignore that PE claims to be able to converse in Spanish, and accept his claim that he thought “negro” meant “****”.
9. Referees room.
AF says he told ref the N word was used. PE says he told ref the N word was used. PE also claims that ref responded by saying “Oh, that is why you were talking about being called black”. Ref says the exact words were written down and were “"I don't talk to you because you niggers".
Note: Neither AF nor the ref allege that the ref responded by saying “Oh, that is why you were talking about being called black”. However, no question mark re PE’s credibility is raised.
Note also that the comment about “don’t talk to you because ...” and the lack of any reference to kicking is entirely consistent with what the 4 players claimed that PE had said in the dressing room. However, the Commission do not take this as further verification that the 4 players were giving accurate evidence and that PE is wrong about the conversations in the dressing room. Ie the Commission do not address whether this should cast doubt on PE’s reliability.
Furthermore, in this formal complaint to ref, there is no suggestion that the Spanish word “negro” was used, and nor does PE translate the word as “black” (despite, according to his own evidence, have done so 3 times on the pitch). Likewise there is no reference to “Dale negro, negro, negro”, and no question mark raised about PE’s reliability in not mentioning this comment to the ref, and not mentioning it at all until he viewed the video footage with the FA and pointed to a time where LS’s mouth obscured.
10. Canal+ Interview.
It is not 100% clear if this took place immediately after the match, or some time later after the complaints to ref had already been made.
Commission appear to have proceeded on basis that it took place after the complaint to ref was made. They read transcript rather than seeing the video, so they don’t comment if he was already showered and changed or not. Interviewer says interview took place after PE “came out” of the dressing room, but no indication of how long he had been in the room for.
Either way, PE’s claim that a word was said (according to transcript) “at least 10 times” is not treated as an inconsistency with PE’s later claim that the word “negro” was used 5 times. Commission decide, without expert evidence re French, that this was a French idiom. They rely on Comolli's evidence for this, despite the fact Comolli did not say that, and despite the fact that the FA's barrister said that ordinary witnesses (such as Hernandez) should not be asked to give expert evidence re the meaning of words in their native tongue.
11. Alleged inconsistency by LS re “pinching”.
In my opinion LS’s written statement in English could be read in 2 ways. See para 245. He suggests he was trying to defuse the situation. That could either be a reference to his overall conduct during the goalmouth conversation. Or it could be a specific reference to the so called “pinching”.
LS’s answers in cross examination at para 246 are entirely consistent with LS believing that the comment about trying to defuse the situation was a general comment about the whole conversation. If you read the questions the FA barrister puts to LS, his first few questions do not refer to “pinching” at all; they simply refer to the entirety of the incident. Ie, for the first few questions, the FA’s barrister was taking the same view of the statement as LS seemed to take.
However, immediately above para 245 of the written reasons, there is a subject heading “Mr Suarez's claim that the pinching was an attempt to defuse the situation”. Ie it is in the subject heading that the Commission makes a finding that LS was asserting that the pinch in and of itself was an attempt to defuse the situation. The Commission then decide that LS changed his evidence on this point.
NB: The first 4 questions by the barrister DO NOT refer to the pinch. LS continues to maintain (in response) that he was not the aggressor during this convsersation. This conversation, as accepted by the Commission, and as shown on video, took place with PE walking towards LS, and LS backing away. So it does seem reasonable for LS to give the answers which he gave in answer to questions not referring to the pinch.
The 5th question is the first to mention the pinch. LS freely admits that he was no longer trying to defuse the situation after the pinch. The 6th question asks him if the pinch itself was an attempt to defuse the situation and he freely admits that it was not.
Fair Conclusion. LS did NOT “change” his evidence re the pinch. He did not regard para 27 of his own statement (as per para 245 of written reasons) as relating solely to the pinch AND NOR DID THE FA’S OWN BARRISTER. LS regarded para 27 of his own statement as making a general claim that, when PE approached him in the goal mouth, he tried to defuse the situation AND THE FA’S OWN BARRISTER knew that that was what para 27 meant as can be seen from the first 4 questions. Para 27 of LS’s written statement indicated that he did touch PE’s arm to show PE that he, LS, was not going to be intimidated, and he confirmed that to the FA’s barrister as soon as he was asked about it.
The Commission decision that LS changed his evidence is based solely on their decision that (contrary to LS’s understanding, and the FA’s barrister’s understanding) his written statement specifically claimed that he pinched PE’s arm to defuse the situation. They also say (in para 247) that LS only admitted the contrary after “persistent questioning”. However, that is false. He was asked 4 questions which did not mention the pinch, and then 2 which did. His answers about the pinch were honest and straightforward and non-evasive AS SOON AS THE FA’S BARRISTER ASKED HIM ABOUT IT. He is being criticised for not talking about the pinch when the questions were not about the pinch. Any witness at this type of hearing is obliged to reply to the actual questions asked, and not to go off at a tangent.
12. Suarez use of word “conciliatory”.
He is also described as unreliable due to the use of this English word in his written statement. He is accused of using this due to the experts having previously used it. This is a bit ridiculous given that LS would neither have read the experts’ reports (at least not in English) nor prepared the English version of his statement. It is also ridiculous given that the experts’ used the word conciliatory to summarise what they believed LS had been asserting in his FA interview. (ie they used an English word to summarise the evidence which LS had given to the FA in Spanish.) If the experts thought the English word “conciliatory” was an appropriate description of LS’s interview comments, then how is it inconsistent of LS to sign a later English statement which has adopted that convenient shorthand.
13. Suarez demeanour from when the whistle blew on the corner.
Commission say that LS was not conciliatory from that point on, which is when LS claimed to use the word “negro”. It is a judgment call, but I think a fair assessment would be that there was no snarling or aggressive body language etc from LS from that point on. His facial expression when he patted PE on head did not indicate aggression.
Commission seem to have concluded that LS used the word “negro” in a non-conciliatory way based solely on fact that PE continued to remain annoyed. Ie PE’s demeanour alone is used as evidence that the discussions remained heated, regardless of fact that PE’s demeanour does not disprove that LS was trying to be conciliatory. This is especially true if PE’s claim to believe “negro” meant the N word is believed.
14. Alleged inconsistency is that LS offered different explanations for why PE said “don’t touch me”.
One is a genuine inconsistency ie at one time he said PE said it after the head touch, and later he said it was before that.
However, the rest is not an inconsistency. He said he assumed it referred to the “pinch” which was, after all, an important part of the FA case against him. However. Surprisingly (given how centrally the FA placed the pinch) PE gave evidence that he hadn’t noticed it. Rather than this be treated as an inconsistency in PE claims, it was treated as disproving what LS said. LS simply said, well if “don’t touch me” was not about the pinch, then it must have been about the foul that he, PE, specifically said was central to his mind at this time and caused him to start the confrontation. There is no inconsistency in LS saying that PE must have been referring to either the foul or the pinch, but that he, LS, was not a mindreader and so couldn’t say which. The Commission decided that PE said “don’t touch me” in response to the head touch despite the fact that PE denied saying that to LS at all (or at least professed he did not recall it).
The Commission felt LS was unreliable for (according to their finding) recalling something in the wrong sequence, despite PE not recalling it at all, and not being called unreliable over it.
