Forestieri's appeal would have been based on a point of law mainly that the FA Regulatory Commission had incorrectly interpreted and applied the FA's Disciplinary Regulations.
The two key Regulations were:
“The fact that a Participant is liable to face or has pending any other criminal, civil, disciplinary or regulatory proceedings (whether public or private in nature) in relation to the same matter shall not prevent or fetter The Association conducting proceedings under the Rules.”
“The result of those proceedings and findings upon which such result is based shall be presumed to be correct and true unless it is shown, by clear and convincing evidence, that this is not the case.”
Forestieri's lawyer argued that as the District Judge in Mansfield Magistrates Ct had found that the prosecution had not proved beyond reasonable doubt that Forestieri had committed an offence under the Public Order Act 1986 then this prevented the FA from finding him guilty of misconduct under its disciplinary rules unless there is "clear and convincing evidence".
However the Regulatory Commission held that clear and convincing evidence was not necessary as the District Judge's "findings" were as follows:
a. “Mr Pearce has in my judgment provided clear and consistent evidence that on the pitch he was called a nigger…I am satisfied beyond any doubt that Mr Pearce was of the view he was called a nigger – his loss of concentration and emotional reaction together with what is said in the aftermath persuades me of this.”
b. “In fairness to Forestieri he likewise has provided clear and consistent testimony as to what occurred and whilst he may feel it is alright [sic] to insult Mr Pearce’s mother he would not use the word nigger”.
c. “So I left with two credible witnesses who have given consistent but differing accounts as to what occurred.”
The District Judge expressed himself sure that KP “believed he was called a nigger”. However, he concluded that in the absence of direct corroboration of KP’s account and in light of Forestieri's “language difficulties”, he had “to accept it is possible, albeit it is in my judgment unlikely, that Mr Pearce was mistaken.” Therefore, he found himself not sure that the case was proved [beyond reasonable doubt].
The Regulatory Commission held from the above that the District Judge had found that it was likely or probable that Krystian Pearce's account that Forestieri had called him a nigger was correct.
This is a civil matter so the burden of proof is that the FA has to prove its case on the balance of probabilities and not beyond reasonable doubt. A famous example of this is OJ Simpson where he was found not guilty by a criminal court of murdering his ex wife and her friend but a civil court later held on the balance of probabilities that he was responsible for their wrongful deaths and battery and ordered him to pay $33 million in damages.
The Regulatory Commission concluded that based on the evidence it was satisfied that Forestieri had probably called Krystian Pearce a nigger. It preferred KP's evidence to Forestieri's evidence. It's factual conclusions were as follows:
"60. We are satisfied that Forestieri probably called KP a nigger for the following reasons:
a. First, KP’s reaction, as seen on the pitch, was immediate and genuine and obvious to see on the footage. It is consistent with his believing he’d heard something which offended him greatly. We are alive to the point that such a reaction is also consistent with KP making an immediate (but honest) mistake. However, in answer to that, his consistency does not stand alone. It is supported by other matters probative of nigger being said.
b. Second, the issue of possible mistake. No one suggested he was lying and had made up the alleged words. Forestieri's case was that he must have made a genuine mistake. We acknowledge that the two men were apart and KP had his back to Forestieri. However, we are satisfied that KP heard the word nigger clearly. As to the language issue, on our analysis of the evidence and the Spanish words used by Forestieri, we can see no reasonable or sensible room for mistake. Not one of those words, when spoken by Forestieri in Spanish, sounded, when spoken in Spanish remotely like the English word nigger. Nor, are we satisfied, would they if shouted or spoken in a heated way.
c. Third, KP as a witness. It may not be entirely helpful to describe a witness as “credible” where there is no suggestion they are lying. We found KP to be honest (not in dispute), clear and consistent, who gave his evidence in a quietly understated way. His evidence was, in our assessment, compelling. It was both clear and it was convincing.
d. Fourth, we did not reach the same conclusion in respect of Forestieri as a witness. We reject his claim that he cannot or does not switch from Spanish to English and does not use the English language when heated or in temper or angry. During his evidence (as his Counsel identified) he interposed an English word in a Spanish sentence. We appreciate that he was calm before us. However, he did not dispute using the word “raspberries” on the pitch during the incident. He denied to us that he was angry at that time. We reject that assertion also: he admitted in interview that he was angry. Further, being angry is also consistent with his abusing KP at that very moment (with “gooseberry face” and “son of a bitch”).
e. Fifth, and it flows from the last point, his use of another offence noun (nigger) towards KP at that time is entirely in context of how he was behaving at the material time. On his own account he was abusing him at the very moment. We are satisfied that that fact, his admission in interview and his conduct on the pitch (after the incident, he committed a bad tackle which caused the melee and might well have led to a red card) that he was angry.
f. Sixth, the use of the word nigger in English as a term of abuse is explicable. As he said in evidence, there is no such word in Spanish.
g. Seventh, we accept KP’s evidence that he accused Forestieri on the pitch of being racist. He pointed out to on the footage the moment he did so. That Forestieri said he did to hear that does not undermine that point"