a) "In or around the 40th minute of the match he made a gesture which was abusive and/or indecent and/or insulting and/or improper, contrary to Rule E3(1); and b) It is further alleged that the misconduct was an 'Aggravated Breach' as defined by Rule E3(2) as it included a reference to ethnic origin and/or race and/or religion or belief."
Both charges against Nicolas Anelka were found to be proved. But regarding the second charge, the independent commission "did not find that NA was or is an anti-Semite or that he intended to express or promote anti-Semitism by his use of the 'quenelle'." The penalty was a five-game ban, an £80,000 fine, the full costs of the hearing and to undertake an education programme.
It was not necessary that his words or behaviour were intended to be abusive or insulting, only that they were so.
The commission considered the orgins of the quenelle, and took evidence from each side. The FA, through Professor Seán Hand, Professor of French Studies, University of Warwick, submitted that the French comedian Dieudonné, who invented the gesture, "regularly expresses views that are strongly anti-Semitic and that the use of the quenelle has become interwoven with those views and therefore with anti-Semitism". Professor Hand concluded that by the date of the match "the gesture cannot be reasonably untangled or dissociated from anti-Semite sentiment" and could not have been seen as "a harmless prank".
Professor Philippe Marlière, Professor of French and European Politics at University College London, for Anelka, said he did not accept the proposition that as of 28 December most people in France would associate the quenelle gesture with anti-Semitism.
Why was he guilty?
Anelka made the gesture deliberately, and knew the game would be broadcast in France. The commission accepted the view that as of 28 December the majority of people in France would clearly have associated the quenelle with Dieudonné. Given the nature of the controversy over his anti-Semitic views, they were satisfied "that the quenelle is and was at that time strongly associated with anti-Semitism".
They also said it was a factor that Prof Marlière said he would not perform the quenelle and would not regard it as acceptable for his students to do so, because he considered it offensive. The fact that other players had performed it did not "deprive it of the abusive, insulting and anti-Semitic meaning we found it has".
Prof Marlière had said in a BBC radio broadcast that the gesture "certainly has anti-Semitic overtones".
It was therefore "insulting and abusive and improper" for Anelka to make the gesture, which meant he breached Rule E3(1). That breach was aggravated because it contained reference to the "protected characteristics" defined as ethnic origin and/or race and/or religion or belief. So both charges were proved.
Was Anelka anti-Semitic?
The summary says it was not necessary to consider that question. But on the evidence, the members of the commission were not satisfied (to the requisite standard) that he was an anti-Semite or that he intended to express or promote anti-Semitism.
The FA wanted a ban of longer than five matches because a)Anelka had denied the charge; b) he is a high-profile player; c) the FA is heavily involved in promoting inclusivity and combating any form of racism; d) he may have damaged the reputation of English football round the world.
Anelka's counsel said it was a much less serious case than that of Luis Suarez when he was banned for 10 matches for racially abusing Patrice Evra, and Anelka had a good disciplinary record.
The commission agreed there were mitigating factors, which meant the punishment was sufficient.