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Clint Dempsey's disciplinary process could be complicated

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We bust out our best legal opinion on the matter.

Jennifer Nicholson-USA TODAY Sports

UPDATE: US Soccer has clarified that Policy 202(1)(H)-2 applies to this situation, and there are two sets of rules for professionals and amateurs.  As such, you can skip all talk below of which Policy applies and the analysis of Policy 531-9 and the potential 3-month ban that comes with it.  Per Alexi Lalas, MLS will make a ruling under Policy 202 today (Friday June 19). The USOC disciplinary panel will rule next week on any additional USOC suspensions.

Clint Dempsey continues to invent new ways to leave his mark on matches. Undoubtedly frustrated by the Seattle Sounders' situation late in the U.S. Open Cup match against the Portland Timbers, Dempsey uniquely protested referee Daniel Radford's red card to Micheal Azira in the 113th minute by grabbing something from Radford (believed to be his logbook) and ripping it up. That act of dissent earned Dempsey his own red card, leaving the Sounders with seven men to finish the match.

It may also leave Dempsey with a lengthy suspension by USSF -- possibly from MLS as well -- for "referee assault." The USSF and the Open Cup Adjudication and Discipline Panel are reviewing into the matter, but this is only the first step in what could be a complicated and lengthy process. It seems highly likely that Dempsey will suffer further punishment from his automatic one game suspension for the red card in next year's U.S. Open Cup; the length and nature of that punishment is what is yet to be determined.

Disclosure: none of the following constitutes legal advice. These are just my thoughts on the situation at hand. Dempsey, I am not agreeing to be your lawyer, though that could be worked out. For anyone else reading this, if you have legal questions of your own please contact a lawyer who can assist you.

---What May Happen---

As you have probably heard elsewhere, Clint Dempsey's action of ripping up last night's referee's logbook may or may not constitute "referee assault," as that term is defined in various USSF Policies.  The minimum punishment for such misconduct is either six matches or three months, depending on which Policy you are looking at.  With little to no precedent of similar misconduct at the professional level, USSF and MLS could address Dempsey's action a variety of ways.

First, they might sweep this all under the rug, saying that ripping up a logbook in protest of a booking is not the kind of "intentional act of physical violence" encompassed by the rule, even if destroying part of a referee's uniform or personal property is one of the acts listed in the Policies.  They might still issue additional punishment, but they'd be free to avoid issuing the harsh minimum punishments listed in those Policies.

If they decide to pursue it, there are branching paths they could take.  All of them involve a hearing within the next month, some requiring a temporary suspension until the hearing is complete.  Dempsey could be punished by both USSF and MLS, and there are some scenarios where he could be punished by one and not the other.  Even if he is punished for "referee assault," his suspension could range from as few as a handful of games to a six-month minimum.

My hope and expectation is that the situation is resolved quickly, with no suspension for "referee assault" but a short general suspension in recognition of his unique and, frankly, intolerable method of dissent.  But, MLS being MLS and USSF being USSF, who really knows what we'll get.  I'll try and untangle the various applicable methods of punishment herein.

---Open Cup Suspension---

The first entity that has authority to pass further judgment on Dempsey is the U.S. Open Cup ("USOC") Adjudication and Discipline Panel ("ADP"). This panel of five is appointed by the USOC Commissioner (Paul Marstaller this year), and consists of one representative from the amateur leagues, one from each of the participating professional leagues (NASL, USL, MLS), and one player who is not participating in the tournament. (See U.S. Soccer's Policy Manual).  As mentioned above, the USOC ADP is already reviewing the matter.

The USOC Commissioner is to review all yellow and red cards and determine whether the actions of the individual receiving the card(s) warrant further review for punishment beyond the automatic punishments for the cards. If such review is warranted, the matter is referred to the ADP, which may impose a lengthier suspension, a fine or both. If the ADP chooses to impose an additional suspension or fine, it may be appealed to the USOC Committee, whose decision is final. Participants in the USOC waive any right to seek relief from courts related to ADP or Committee decisions.

It seems that any further suspension from the ADP solely under "card review" would be limited to USOC matches. In 2008, USSF suspended Cuauhtemoc Blanco for the entirety of the 2009 and 2010 USOC tournaments for violent conduct and fined him $7,500. Blanco escaped any additional punishment by MLS. Though USSF's rules likely looked different at the time, I imagine that this is the type of provision that he was punished under, instead of the more specific referee assault sections we will turn to.

---USSF Suspension---

The real meat of possible suspensions for Dempsey comes from the USSF's Policies regarding "referee assault." There are multiple Policies potentially at issue here.

Which Policy?

Policy 202(1)(H)-2 establishes that all Professional League Members must implement a minimum set of measures to prohibit misconduct against referees. These measures apply only "while participating in Professional League Member activities."

Policy 531-9 prohibits misconduct toward game officials, but does not apply when "participating in Professional League Member activities."

[EDIT: For what it's worth, Grant Wahl is reporting that a US Soccer spokesman says that Policy 202 applies to professionals like Dempsey and 531-9 is just for amateurs.  I'm still a little skeptical since the USOC is a mixed tournament put on by USSF with both amateur and professional participants, but you can probably skip down past the Policy 531-9 section.]

USOC matches seem to be encompassed by Policy 202(1)(H)-2, since Dempsey was playing for his professional team. On the other hand, USSF is the entity overseeing the tournament, and Policy 513-9 establishes USSF's measures for punishing referee assault. You can argue that "Professional League Member activities" is limited to those matches actually organized by the professional league. As such, USSF's established procedure would be followed. By contrast, Policy 202(1)(H)-2 is only a directive to professional leagues to establish their own minimum punishments. Who knows what MLS's punishment actually is.

Policy 531-9 does encompass professional players as 531-9, Section 4 (A)(1) refers specifically to professional players as potentially violating the Policy.

Looking to Policy 531-9 first makes sense because it prevents the difficult situation of having the same conduct by two players punished differently simply because one is professional and the other amateur. If Cal FC had been the opponent, the same misconduct in that game would earn a Cal FC player a three-month suspension and a Sounders player a six-game suspension.

On the other hand, leaving punishments up to the league from which the player comes from has its own logic.

While there's plenty of room for debate, in my mind you at least look to Policy 513-9 first.

Policy 513-9—Misconduct Toward Game Officials

We'll let the policy speak for itself:

(3) (a) (i) Referee assault is an intentional act of physical violence at or upon a referee.

(ii) For purposes of this policy, "intentional act" shall mean an act intended to bring about a result which will invade the interests of another in a way that is socially unacceptable. Unintended consequences of the act are irrelevant.

(b) Assault includes, but is not limited to the following acts committed upon a referee: hitting, kicking, punching, choking, spitting on, grabbing or bodily running into a referee; head butting; the act of kicking or throwing any object at a referee that could inflict injury; damaging the referee’s uniform or personal property, i.e. car, equipment, etc.

As the referee's logbook is either part of the referee's uniform or personal property, it seems that ripping up (damaging) the logbook is a "per se" case of "referee assault." Whether or not this should constitute referee assault is debatable, but the behavior clearly gives rise to a need to investigate the matter for possible suspension and/or fines under the rules. I don't want to go into the actual merits of whether or not this was actually a referee assault under the Policies, so I will proceed with the question as a hypothetical.

Initially, the burden is on the referee to report any allegations of referee assault through a written report. As the USSF is already investigating, it appears Radford either has already reported it or this requirement is not necessary where the incident is televised and highly publicized.

The "responsible Organization Member" has "original jurisdiction to adjudicate the matter." I am unsure as to what is considered the responsible Organization Member for a USOC match, as I do not believe the USOC Committee is considered an Organization Member. It's possible that USSF is itself considered responsible, and USSF could defer the matter to the USOC ADP as part of their current review or another appropriate hearing board. It is possible that USSF sees MLS as the responsible member since Dempsey was playing for his MLS team, but this seems less likely.

Either way, "when an allegation of assault is verified . . . the person is automatically suspended until the hearing on the assault." So, assuming USSF is investigating this as a possible referee assault, Dempsey will at least be temporarily suspended by the Federation.

There is supposed to be a hearing -- before a panel or board of at least three members -- within 30 days, or else the matter is removed to the Federation's Appeals Committee. Dempsey would be allowed a representative at the hearing.

Sam Borden of the NYT reports that there should be a decision by Friday, but my guess is that the decision that will be made this week is whether they should continue the investigation of this matter as a referee assault, bringing the automatic suspension. I would expect both sides will be given more time to prepare for a full hearing, should there be one.

If the hearing board determines Dempsey committed a referee assault, they will likely suspended him for at least three months. The minimum suspension for referee assault is: "for a minor or slight touching of the referee or the referee's uniform or personal property, at least 3 months from the time of the assault." Dempsey would be eligible to return on September 17th. If the board determines that such "touching" of the referee's personal property is more than "minor or slight," the suspension will be at least six months. Dempsey would be eligible to return December 17th.

Interestingly, the rule only explicitly prevents "State Associations" from providing a shorter suspension for referee assault. I think this opens the door to arguing that the minimum ban stated may be ignored by USSF or whichever other organization is determining Dempsey's punishment.

If Dempsey is suspended, he may appeal to the USSF's Appeals Committee. The Appeals Committee's decision is final, but Dempsey would thereafter have the opportunity to seek relief from courts. I have no idea, and do not want to speculate, what claims he may have for court review at that point.

So, in summary, if the USSF sees this as at least a possible case of referee assault, USSF should suspend Dempsey temporarily. This could impact his availability for the Gold Cup, depending on when his hearing is held. And if they find that this is a case of referee assault, a 3 month suspension is warranted by the rules, though there exists wiggle room to issue a shorter suspension.

---MLS Suspension---

There are three ways Dempsey could be suspended for MLS and other Sounders matches: (1) USSF could determine that MLS is the proper entity to issue any suspension for his conduct; (2) MLS is forced or decides to recognize a general USSF suspension; (3) MLS decides to issue its own punishment in addition to any USSF punishment.

MLS issues Dempsey's punishment

If we go by Policy 531-9 above, the responsible Organization Member has original jurisdiction to implement and enforce Policy 531-9. USSF could determine that MLS is the responsible member and have MLS hold the hearing and issue Dempsey's punishment. It seems clear in that case that any temporary, three-month, six-month or other suspension would apply to MLS.

I could also be wrong, and playing USOC games for professional teams could count as "Professional League Member activities," bringing us to Policy 202(1)(H)-2. The definition of "referee assault" in Policy 202(1)(H)-2 is substantially the same as in Policy 531-9 set out above, except that it omits the definition of an "intentional act."

Policy 202(1)(H)-2 has a minimum six (6) game suspension, to be served over six of the professional team's official matches (games where there is paid attendance). Obviously the league could choose to impose a lengthier suspension. Notably, the league may not impose a shorter suspension. Though only Sounders games may count for this ban, Dempsey may not compete in any soccer competition until the ban is over. Also, there is no provision for an immediate temporary suspension and the suspension is without pay.

All member leagues are supposed to provide for minimum procedures for hearings, and it is assumed those would be substantially similar to those provided under Policy 531-9. There may also be appeal rights within the league, and Dempsey could also appeal to USSF's Appeals Committee after a final decision by the league.

Should Dempsey be suspended under MLS's implementation of Policy 202(1)(H)-2, assuming the first game he's suspended for is this Saturday's game against San Jose, he would be eligible to return after the July 18 match against Colorado. He would also be suspended for the entirety of USMNT's Gold Cup Group Stage against Honduras, Haiti and Panama and, should they advance in first or second of the group, for the Quarterfinal also on July 18.

Since there is no automatic suspension under Policy 202(1)(H)-2, MLS and Dempsey could drag out the process for a final decision after the Gold Cup, perhaps for the mutual benefit of allowing Dempsey to participate in the Gold Cup while still issuing a harsh decision after the tourney. Or Dempsey could tie up the matter in appeals for as long as possible to try and push a final decision at least past the July 26th Gold Cup Final.

Keep in mind that Policy 202(1)(H)-2 only proscribes the minimum level of punishment that MLS has to have on the books. They could have something much more stringent, similar to the three-month requirement of USSF.

If Policy 202(1)(H)-2 is the appropriate policy, USSF could still impose a USOC-specific sanction (as laid out above). However, it seems that the international matches played during his professional league suspension would be his only international suspension.

MLS recognizes USSF suspension

USSF Bylaw 241 (PDF link) requires Federation Members to "recognize" suspensions or other disciplinary action imposed by the Federation upon notice. It is not stated what "recognizing" a suspension entails exactly. It most likely means that a Federation suspension is supposed to act as a general suspension throughout all Federation members. It could mean that a Member only has to acknowledge the suspension and does not also have to suspend the person, but that seems to defeat the purpose of a Federation suspension. It is certainly possible that, under this Bylaw, a general USSF suspension under Policy 531-9 (not limited to the Open Cup) is required to operate as a suspension in MLS play.

MLS issues its own suspension

MLS could of course issue its own suspension in addition to whatever USSF hands down (if anything). MLS has its own rules, policies and bylaws that likely touch on this matter, perhaps stating something along the lines of prohibiting "conduct detrimental to the game" no matter where or when it took place. MLS, if not directly required to issue a specific suspension, could choose to suspended Dempsey shorter, longer or the same as USSF.

---Conclusion---

There are a plethora of ways this could play out, all complicated by Dempsey's status as a USMNT star on the verge of playing in one of the five most important USMNT competitions. The easiest way for all parties to wipe this under the rug is for USSF/USOC/MLS to make a quick ruling that ripping up a log book is not the kind of "intentional act of physical violence" contemplated by these rules. Hopefully for all involved, that is the route they go.

If the parties decide to drop the hammer for this incident, Dempsey could be suspended for anywhere between a few games (ruling that it wasn't assault but more like abuse, or imposing a short punishment under Policy 531-9) to six months (the harsher minimum penalty under 531-9).

What do I really think is most likely though? Dempsey gets suspended for 2-4 games under some Portlandian rule that none of us have ever heard of. That would be all too appropriate.