The Football Association was last night considering the legal ramifications of taking the England captaincy away from John Terry ahead of his trial over allegations of racial abuse in July. The governing body has faced growing calls for Terry to be relieved of his leadership duties for this summer's European Championship and could reach a decision as early as today.
The FA chairman, David Bernstein, yesterday canvassed the views of the other 12 board members over Terry's position. The FA is not legally bound to keep its own investigation into the allegations against Terry on ice until criminal proceedings are completed but has been cautioned by the Crown Prosecution Service over the danger of prejudicing the July trial.
Terry has pleaded not guilty to racially abusing Anton Ferdinand and the FA has so far supported Fabio Capello, the England manager, in his stance of backing the Chelsea defender to lead the national side on the grounds he is "innocent until proven guilty".
That may not bar the FA from removing the captaincy temporarily, or even the extreme of not selecting Terry for England duty until the case is settled. The FA will take legal advice before reaching any decision. Terry's position was discussed at a recent board meeting, but that came before the trial date was set for 9 July – a week after the European Championship final. Bernstein has shown himself willing to make bold calls and there is a need to make a decision well ahead of the next scheduled board meeting, six days before England's next match, a friendly against the Netherlands on 29 February.
Damian Collins, Conservative MP and a member of the Culture, Media and Sport Select Committee, said: "This can be a defining moment for English football. If John Terry won't give up the armband, then the FA must take it from him."
The FA has given no indication it will resume its investigation into Terry after talks with the CPS. The inquiry was halted when the Metropolitan Police instigated its inquiries into allegations that Terry racially abused Ferdinand during a match between Chelsea and Queen's Park Rangers last October. The problem for the FA is the huge publicity about any decision it made on Terry's innocence or guilt could lead to claims that the trial had been prejudiced.
"Any decision about an investigation is for the FA to make," a spokesperson for the CPS said yesterday. "We have met with the FA and explained the potential for prejudice of a criminal trial."
Simon Boyes, a specialist in sports law from Nottingham Law School , said: "If the FA conducted a hearing, made a finding – whatever the finding, it could compromise the fairness of the criminal trial because it would anticipate the outcome."
Four years ago a report commissioned by the British Horseracing Authority into the circumstances surrounding the collapse of the trial of jockey Kieren Fallon reasoned that a governing body could pursue its own investigation in parallel with a criminal one.
The report, compiled by Dame Elizabeth Neville, stated: " There is no rule of law that provides that, merely because criminal proceedings are contemplated or have begun, private disciplinary proceedings must be stayed pending the outcome of those proceedings. On the contrary, the courts have held that there is a substantial public interest in such disciplinary proceedings continuing unhindered."
Fallon, who was cleared of all charges, was suspended by the BHA pending his trial, a decision that was upheld in the High Court. The BHA said it was protecting the integrity of the sport.