What are West Ham and Lucas Paqueta’s legal options?

West Ham United midfielder Lucas Paqueta has been charged with misconduct by the Football Association (FA) for allegedly getting booked deliberately “for the improper purpose of affecting the betting market”.

He categorically denies any wrongdoing and “will continue to robustly defend his position”, according to West Ham.

An FA statement said: “It’s alleged that he (Paqueta) directly sought to influence the progress, conduct, or any other aspect of, or occurrence in these matches by intentionally seeking to receive a card from the referee for the improper purpose of affecting the betting market in order for one or more persons to profit from betting.”

“I am extremely surprised and upset that the FA has decided to charge me,” said Paqueta on social media. “For nine months, I have cooperated with every step of their investigation and provided all the information I can. I deny the charges in their entirety and will fight with every breath to clear my name.”

Could Paqueta be banned for life? Could West Ham sue the midfielder? How will this impact his involvement in the Copa America?

The Athletic has consulted experts and here is what they have to say about Paqueta’s legal options.

What is Paqueta accused of?

The four alleged breaches relate to his conduct in West Ham’s Premier League fixtures against Leicester City on November 12, 2022, Aston Villa on March 12, 2023, Leeds United on May 21, 2023, and Bournemouth on August 12, 2023.

In each of these games, Paqueta is accused of seeking to receive a yellow card on purpose. The Athletic has looked back at the four yellow cards in question.

It first emerged that Paqueta was being investigated for possible betting breaches in August last year following suspicious betting patterns surrounding a yellow card he received in West Ham’s 1-1 draw against Bournemouth.

He was interviewed by the FA last September and gave them access to his phone the following month.

Why is spot-fixing potentially a more serious issue than the other gambling cases we’ve seen in the Premier League recently?

“I’m not sure we’d say that it is a more serious issue per se,” says Sam Cuthbert, sports barrister at 4 New Square Chambers. “Rule E5 of the FA Rules is drafted to encompass broad prohibition against directly or indirectly seeking to influence the result for an improper purpose. The severity of the breach is a factual matter and will typically be exacerbated by things like the level of harm caused and compliance with the prosecuting authority. Paqueta has also been charged under Rule F3, which imports a misconduct provision for offending the FA’s powers of inquiry under rule F2, and so the FA are presumably of the view that Paqueta has not complied with their investigations.”

Brentford striker Ivan Toney was banned for eight months from football for 232 breaches of the Football Association’s betting rules. Sandro Tonali is already serving a 10-month ban running to August for offences during his time in Italy. He has also admitted placing between 40 and 50 football bets after joining Newcastle from AC Milan last July, including four on Newcastle’s results. Harry Toffolo, the Nottingham Forest defender, was given a suspended five-month ban in September for 375 breaches of betting rules.

“The difference is that here, the allegation involves doing something to affect the way in which the game plays out, says Michael Beloff KC, a sports lawyer who arbitrated in the 2010 Pakistani cricketing spot-fixing case — where three cricketers were sentenced to prison for deliberately bowling no-balls. “Just betting on your own team, or some other team, may not be intended to influence the game in any way.

“As I understand it, what’s happened here is that he is alleged to have done various actions during the game itself to facilitate other people who are betting. That was the essence of the Pakistani cricketing spot-fixing case, which was the major case I’ve been involved in. They deliberately bowled these no-balls at a particular time to facilitate what they believed to be a betting coup, by feeding them information about what they intended to do, and then creating a situation in which the gamblers were bound to win.

“Although it’s not identical to the more serious offence of match-fixing, it can actually influence a result simply by deliberately doing something that can affect play, in a way which would not otherwise have occurred apart from the spot-fixers’ actions.”

What footballing punishment could Paqueta face?

Paqueta could be facing a lengthy ban if a breach is proven. In 2022, non-League defender Kynan Isaac was banned for 10 years for spot-fixing during an FA Cup tie in which it was alleged he deliberately got booked as part of a betting scheme with friends. In 2018, Lincoln City’s Bradley Wood was banned for six years after he deliberately got booked in two matches, with two close friends betting on that happening.

Wood (right) was banned for six years (Ian Kington/AFP via Getty Images)

However, a former Arsenal midfielder, whom we cannot name for legal reasons, was cleared of any involvement in a possible betting scam following a yellow card he received in December 2021 following a 16-month wait.

What would be considered aggravation or mitigation?

If Paqueta is found guilty, any potential punishment is likely to be heavily influenced by either aggravating or mitigating factors. For example, Tonali’s FA ban was heavily mitigated by his compliance with authorities, his gambling addiction, and the fact he was already serving a ban levied by the Italian FA.

“The amount of occasions in which you assist gamblers, or the extent to which you yourself were profiting from it are among potential aggravating factors,” says Beloff. “Mitigation can be of the sort that one might have in a criminal case — a desperate need for money in order to pay for an operation for a very sick child, or pressure from third parties.

“In the Pakistani cricketer case, one of the factors as to sanction that affected the International Cricket Council Panel which I chaired was that the youngest of the trio involved had been influenced by the other two, his seniors.”

Another potential aggravating factor, which could come into play given Paqueta’s alleged breach of Rule F3, is the willingness to comply with authorities.

Could this become a criminal matter?

In the case of Toffolo, Tonali and Toney, the three players had broken no criminal law — it is not illegal to bet on football matches in the United Kingdom. Their punishment was because they broke sporting regulations. The allegations levied at Paqueta have the potential to be different — manipulating markets in order to generate money could bring the possibility of more serious criminal charges.

“The Fraud Act 2006 brings the offence of fraud within the Gambling Act 2005,” says Cuthbert. “There’s a clear route then for prosecuting spot-fixing in sport as a criminal fraud. That said, finding a balance so that criminal proceedings and regulatory proceedings can run concurrently and harmoniously can be difficult.

“The timetables for bringing those proceedings are usually very different, as are the standards of proof. Where a regulatory prosecution runs parallel to a criminal prosecution, the respective prosecuting authorities need to be careful so as not to prejudice the other cases.”

In the Pakistani spot-fixing case, the three cricketers were found guilty of the criminal charge of ‘conspiracy to cheat at gambling and conspiracy to accept corrupt payments’. Captain Salman Butt, the most senior player to stand trial, was sentenced to two years and six months in prison.

What would West Ham’s rights be if they wished to sack Paqueta? Would Paqueta’s contract typically have clauses covering this?

“His contract will likely contain misconduct provisions which would encompass a prohibition on match-fixing, spot-fixing,” says Cuthbert. “His contract will likely also make clear that he is subject to the FA rules, and therefore the associated prohibitions on betting and integrity offences.”

If West Ham wanted to sack Paqueta, his actions would have to be regarded as a gross breach of contract. This does not even necessarily change if Paqueta subsequently becomes the focus of a criminal investigation.

If a player pleads guilty, or is convicted of a crime, a club can justifiably call it a ‘gross breach of contract’. However, if a player pleads not guilty throughout, and is then cleared of charges, they could theoretically take action against their employer for sacking them, or even for unlawful wage deductions while suspended. For example, Manchester City suspended Benjamin Mendy and allegedly docked his wages after he was charged with six counts of rape — but after he was cleared last year, the player announced he was taking legal action to recoup what he claims was between £9million and £10m of lost salary.

Wise (right) was sacked by Leicester (Stu Forster/ALLSPORT via Getty Images)

This is why Premier League clubs have only rarely sacked players under contract. In 2002, Dennis Wise was sacked by Leicester City following a pre-season fight with a team-mate, and Nicolas Anelka by West Bromwich Albion for performing a quenelle (an action with antisemitic connotations) after scoring in 2014.

Chelsea striker Adrian Mutu was sacked after testing positive for cocaine in 2004, with the club subsequently seeking £14.4million in compensation from the player.

In the Championship, English football’s second tier, club captain Richard Keogh was sacked by Derby County for gross misconduct in 2019 over his role in a car accident on a night out with team-mates. Keogh subsequently brought an action for breach of contract, securing a payout of £2.3million in 2021.

What does this mean for West Ham?

It is a major blow for the east London club on two fronts. Firstly, they had hoped to sell Paqueta this summer in order to fund the squad rebuild they want to carry out under Julen Lopetegui, their new head coach.

Lopetegui was appointed on Thursday, the same day that the FA charges against Paqueta emerged.

Selling Paqueta would allow the club to reinvest in the squad, similar to Declan Rice’s £105million departure to Arsenal last summer. Forwards Youssef En-Nesyri, of Sevilla, and Wesley Gassova, of Brazilian side Corinthians, were two of the summer targets identified by technical director Tim Steidten and Lopetegui.

The other issue is that Paqueta is widely regarded as West Ham’s most talented player, even if his form tailed off towards the end of the season. He scored four goals this season and helped West Ham finish ninth. He was also part of the side that won the Europa Conference League in 2022-23.

Paqueta can still play until after the FA case against him is heard and he is either sentenced or not. Given the complexity of any case like this, it means he might be able to play for a while yet.

Could West Ham sue Paqueta to recoup the loss of transfer earnings or other money?

Last summer, West Ham rejected Manchester City’s £70million offer for Lucas Paqueta. City were expected to revive their interest, with Paqueta’s £85m release clause becoming active in June. But now the Premier League champions are expected to pursue other targets.

Mutu is the most prominent example of a player being sacked and sued by his club. The striker received a seven-month ban from football, but Chelsea sacked him and then sued him to recover the money they paid to sign him (£15.8million). In a legal battle lasting five years, the Federal Supreme Court of Switzerland rejected Mutu’s appeal in 2010 and he was ordered to pay his former club a record £14.3m in compensation. Mutu lost a further appeal as recently as 2018.

“In order to sue Paqueta, West Ham would have to identify that his contractual breaches led to the losses they’re seeking to recover. Whilst the regulatory prosecution would be separate to any contractual dispute between Paqueta and the club, its outcome may still be referred to in the contractual proceedings,” says Cuthbert.

“Without seeing his contract, it’s difficult to know the specific breaches pursuant to which West Ham may bring an action. The other point is that whilst it’s theoretically possible for West Ham to sue Paqueta, there is not a host of authorities on the point and it would be an unusual step.”

Can he still play at the Copa America?

Paqueta plays international football for Brazil, who will compete at the Copa America in the United States between June 20 and July 14 — after the June 3 deadline by which Paqueta has to respond to the charges from the FA.

The forward has rejoined the set-up under Dorival Junior, having been left out by previous manager Fernando Diniz because of the possibility of the charges.

Paqueta is an important player for Brazil (Pierre-Philippe Marcou/AFP via Getty Images)

Paqueta is a very important player for Brazil — and comfortably the main creative force with Neymar absent with injury. Brazil missed him when he was left out of their recent squads and he impressed against England in March when they won 1-0 at Wembley.

It is unclear whether he will make the squad for the competition.

When will the hearing take place?

A date has not yet been set for a hearing. Paqueta has until June 3 to respond to the charges, which the FA say can be extended.

(Top photo: Ian Kington/AFP via Getty Images)