Protesting a Red Card that Wasn’t: Relative Nullity and Gabriel Paulista

From the sporting world, an excellent illustration of the administrative law doctrine of relative nullity. Last week, in a match against Chelsea, Arsenal defender Gabriel Paulista was sent off for kicking out at Chelsea striker Diego Costa. Though I may be showing my colours here, it was a preposterous decision: Gabriel’s actions were innocuous compared to the many breaches of the rules committed by Costa in the moments leading up to the red card. Watch the video for yourself. Sure enough, having considered the footage, a disciplinary panel quashed Gabriel’s red card and imposed a three-match suspension on Costa for violent conduct.

But another panel imposed a one-game ban on Gabriel for his vigorous protests and refusal to leave the field of play when ordered to do so. How, you might ask, could he banned for contesting a decision that did not exist? The red card was quashed earlier in the week, so he was protesting against a nullity!

The answer lies in the words of Lord Nicholls of Birkenhead: “The consequence of invalidity may not be the same in all contexts and in respect of all persons. An order may be void for one purpose and valid for another…” (R. v. Wicks, [1998] A.C. 92). There, a failure to take steps to comply with an enforcement notice constituted a criminal offence, even if the notice itself was unlawfully issued. Wicks had to comply with the notice until it was set aside, because that was what the functioning of the statutory scheme required.

And similarly, the functioning of the game of association football requires players to abide by referees’ decisions (no matter how aberrant) until such time as they are set aside by a competent authority. Gabriel’s recourse was not to stamp and swear and refuse to leave the pitch but to don a stiff upper lip and leave his stamping and swearing for the dressing room during his lonely early bath.

This content has been updated on September 27, 2015 at 21:21.