The new Scottish FA rule behind Kilmarnock striker Kyle Lafferty's lengthy ban for sectarian language

Kilmarnock striker Kyle Lafferty has been handed a lengthy ban for the use of sectarian language and will be out of action at club level until mid-January.

The forward learned his fate at a disciplinary hearing on Thursday that marked a first for the Premiership. Lafferty was the first top-flight player to called to account since the Scottish FA tightened their rules on what they consider offensive behaviour.

The governing body’s existing rulebook dealt with similar incidents under the umbrella term “comments of a discriminatory or offensive nature”, with the guidelines for punishment beginning at a two-game ban, through to an eight-match suspension, and a maximum of 20 matches in exceptional circumstances.

Over the last year, work to review and replace that rule took place and, since the beginning of the season, a new law has been in place to specifically target discrimination and increase sanctions. While it’s been applied at lower levels before now, this is the first high-profile case the SFA’s disciplinary department have had to deal with.

The rule in full

Rule 81, which was added to the Judicial Panel Protocol for the 2022/23 season, states: “No recognised football body, club, official, team official, other member of team staff, player, match official or other person under the jurisdiction of the Scottish FA shall (i) use offensive, insulting or abusive language and/or actions which include(s) a reference, whether express or implied, to any one or more of the following:- ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability or (ii) carry out any act of victimisation (as defined in the Equality Act 2010) or any act of discrimination by reason of ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation, disability, age, pregnancy, maternity, marital status or civil partnership, unless otherwise permitted by law and the rules and regulations of the Scottish FA.”

The new rule replaces the existing low-end, medium and top-end recommendations with a single “generally appropriate” sanction of a “mandatory minimum 10 match suspension”, with a maximum one-year ban for exceptional cases.

The SFA’s compliance officer reviews any comments or incidents that may be in breach of the new rule and issues a notice of complaint to individuals, summoning them to a disciplinary hearing.

How does the panel decide the punishment?

Lafferty was banned after appearing in front of the panel on a video call. (Photo by Ross Parker / SNS Group) SNS Group

Each case is heard by an independent panel at a hearing convened by the Scottish FA. It is generally made up of people with a background in the game, whether as former players or match officials, or as administrators.

The panel reaches its decision without the direct input of the Scottish FA, but guidance is issued on what the members should take into consideration. The new Judicial Panel Protocol includes the detailed guidance on how to approach the new rule that Lafferty was charged with breaking.

After reiterating that the mandatory minimum of a ten-match ban is in place, it adds that no element of the ban can be suspended.

The guidance tells the tribunal to “determine the gravity of the incident, as well as considering any mitigating or aggravating factors”. It explains that while any suspension can’t be below ten games, the tribunal can reach a decision to impose an even longer ban.

The SFA lists what it considers to be “aggravating factors” that might lead to a heavier punishment.

It urges the panel to consider:

Repeated use of discriminatory language or conduct during commission of the offence;
The public nature of the offence;
The profile of the Alleged Party in Breach, including whether they hold a position of responsibility within their club or organisation;
The relative ages of the Alleged Party in Breach and the victim(s) at the time of the offence, particularly where the victim was a minor and the participant was not;
A failure to co-operate with the Scottish FA;
Any previous disciplinary record of the Alleged Party in Breach;
Any attempt to conceal the breach of the Disciplinary Rule; and
The extent of any premeditation.

However, there are also circumstances that can be looked on favourably at the hearing, and can help ensure that a player receives only the mandatory minimum. Clubs and players are allowed to present whatever evidence they feel helps to explain or argue their position.

The document lists the mitigating factors as:

Admission at the earliest opportunity where the factual conduct forming the basis for the charge would be capable of being disputed;
Demonstration of genuine remorse;
Co-operation with the Scottish FA;
Where it is accepted the alleged party in Breach had a legitimate expectation of privacy;
Inexperience of the alleged party in Breach by reference to their age or background at the time of the offence; and
In respect to social media post, the age of the post and the alleged party in breach’s age at the time of the post.

Kilmarnock have already said that Lafferty had admitted to using offensive language, which was not entirely clear in the recording that was circulated, and that both club and player were co-operating fully with the governing body ahead of the hearing.

Lafferty has been fined by Kilmarnock and ordered to undergo work with anti-sectarian charity Nil By Mouth.