Malky Mackay and Iain Moody to face no FA action over discriminative text messages due to a 'a legitimate expectation of privacy'

Former Cardiff manager and his head of recruitment have apologised for sending discriminative messages to each other between June 2011 and March 2014

Former Cardiff and Wigan manager Malky Mackay (Getty Images)

The Football Association was so concerned about the reliability of evidence presented to it during its investigation into the racially-charged text messages of former Cardiff City manager Malky Mackay and his head of recruitment Iain Moody that it passed that evidence on to the police.

The FA announced that neither Mackay nor Moody would be charged for their part in the text message scandal which engulfed English football last summer and was reignited when Mackay was subsequently appointed by Wigan Athletic. Mackay was sacked in April, and with neither men currently working both will hope the verdict gives them a chance to rebuild their careers.

The main reason the FA compliance department has decided to drop the case has been the manner in which evidence has been passed to it over the period of its investigation, which has been almost a year. The FA has contacted a specialist unit based in London, part of the Metropolitan Police, to pass on its concerns and share evidence.

The FA also said that it could not bring a case against the pair on the basis that the text messages, obtained by Cardiff’s lawyers through a search order on Moody’s office, had a “legitimate expectation of privacy”. It was the same when the FA examined emails of a sexist nature sent by Richard Scudamore, the Premier League chief executive last year.

However, the FA did embark on an investigation into whether a culture of racism and wider discrimination existed during Mackay’s time at Cardiff – taking into account the sexist and homophobic slurs in other messages exchanged between the pair. Having spoken to 27 individuals in the UK and overseas, the FA’s compliance department decided that was not the case.

The FA said in a statement: “The investigation has been lengthened...due to serious concerns about the circumstances in which particular evidence provided to the FA had been given and the reliability and completeness of that evidence. The nature of these concerns...has necessitated significant further inquiries by the FA and the liaison with external law enforcement agencies.”

When contacted, the FA would not specify whether the evidence in question was submitted by one of the two men under investigation or by Cardiff City. There was a tranche of new evidence submitted by Moody at the end of the year which delayed the FA reaching a verdict. There is no suggestion from the FA that Moody is the individual in question when it comes to the concerns it outlined.

Originally, Cardiff instructed law firm Mishcon de Reya to probe around £90m spent on transfer fees, wages and agents’ fees by the club in 2013 under Mackay and Moody. So far, no case has been brought against Mackay and Moody over financial impropriety.

Among the texts sent were slurs against a South Korean player and the Jewish agent Phil Smith and a list of black players. There were inappropriate remarks about a female football agent and homophobic insults.

Cardiff are considering their position on the FA verdict. The FA said that to date it has not brought “charges in respect of private communications”.

The FA added: “In light of the finding that the communications were sent with a legitimate expectation of privacy, The FA will not be taking disciplinary action.”

The FA added that it had spoken to both men about the “inappropriateness” of the nature of their messages.

The anti-racism group Kick It Out said in a statement: “The FA has damaged its own credibility and anti-discrimination policies by taking the decision not to charge Mackay and Moody.”