Clint Dempsey escapes harsh sanctions for Open Cup incident

BY Kyle McCarthy • June 19, 2015

After a couple of days of uncertainty and a host of speculation, Seattle Sounders forward Clint Dempsey finally learned his fate after his much-discussed dismissal on Tuesday.

Dempsey will miss the next three MLS matches after receiving a suspension and an undisclosed fine from the league on Friday afternoon.

The punishment will keep him out of the derby match between Seattle and Portland next Sunday (live, 7:00p.m. ET, FOX Sports 1), but it will not prevent him from taking his place in the United States squad for the CONCACAF Gold Cup.

The peculiar nature of the incident and the obscure policies it triggered led to a raft of uncertainty over the past couple of days. The final resolution finally allows for a chance to sort through the issues and figure out how exactly Dempsey's actions led to this particular conclusion.

How did this mess start in the first place?

Dempsey reached into the pocket of referee Daniel Radford, pulled out his notebook and ripped it to shreds on the field during the 3-1 defeat to Portland Timbers in a Lamar Hunt U.S. Open Cup match on Tuesday.

Radford sent Dempsey off for his actions and triggered a little-known provision in the U.S. Soccer Policy Manual in the process.

Why did MLS find itself responsible for handing out punishment for an incident in the Open Cup?

It is required to do so under the terms of the U.S. Soccer Policy Manual. Dempsey's actions fell under a specific provision entitled Professional Leagues Policy Against Referee Assault. The policy requires professional league members -- e.g., MLS -- to "adopt and enforce policies prohibiting misconduct against referees."

That duty is not discharged even if a player is competing in an external competition, such as the Lamar Hunt U.S. Open Cup. Therefore, it fell to MLS to interpret the policy and issue the corresponding discipline.

What were the two choices for discipline?

Under the terms of Policy 202(1)(H)-2, these sorts of incidents are separated into two categories: referee assault and referee abuse.

Referee assault carries a minimum six-match, unpaid suspension. It is defined as an "intentional act of physical violence at or upon a referee" by any coach, player, manager, club official or league official.

That general definition is expanded by a series of specific actions in the following subsection:

"For purposes of this subparagraph 2(a), "Referee Assault" shall include, but is not limited to: striking, kicking, choking, grabbing or bodily running into a referee; spitting on a referee with ostensible intent to do so; kicking or throwing an object at an official that could inflict injury; or damaging the referee's uniform or personal property (e.g., car, uniform, or equipment)."

Referee abuse carries a minimum three-match suspension. It is defined as an action by coach, player, manager, club official or league official "who threatens through a physical act or verbal statement, either explicitly or implicitly, a referee."

The following subsection outlined some conduct included under this provision:

"For purposes of this subparagraph 2(b), "Referee Abuse" shall include, but is not limited to: verbal and nonverbal communication which contains foul or abusive language and which implies or directly threatens physical harm; spewing a beverage on or spitting at a referee or the referee's personal property."

Under the terms of a subsequent section applying to both referee abuse and referee assault, suspended players are ineligible to feature in "any soccer competition until the suspension has expired."

If we read and apply the plain language, how should MLS have ruled?

Make no mistake: The path toward referee assault is the simplest, most straightforward interpretation and application of the policy as written.

Dempsey's conduct -- the taking and the tearing of the referee's notebook -- is considered in the "damaging the referee's uniform or personal property" component of the specific definition.

It would have been easy for MLS to say, "Six games, and that's it." MLS chose a different path with the aid of some wiggle room in the policy itself.

Why did MLS opt to deem it referee abuse instead?

The league struggled to reconcile the general definition -- "intentional act of physical violence at or upon a referee" -- of referee assault with Dempsey's conduct.

At issue here is the initial drafting of the section. The general definition conveys certain inferences -- "intentional" and "physical violence" -- that do not necessarily reconcile with the following subsection of specific actions.

Were Dempsey's actions "physically violent?" The policy indicates yes by its specific, hypertechnical letter, but the tension between the general and the specific definitions there allows room for broader interpretation than the policy initially suggests.

In the league's view, the actions fell more in line with "threatening" actions outlined in the referee abuse section than "an intentional act of physical violence." And it acted accordingly.

Were there other factors involved here?

MLS must also weigh past precedent as it imposes discipline. The league is not known for its consistency in disciplinary matters (where was this policy in previous incidents involving referees, for instance?), but those previous decisions -- whether imposed by the Disciplinary Committee or by MLS commissioner Don Garber -- are factored into any punishment levied.

In this particular case, MLS wrestled with the six-match ban handed down to Fabian Espindola for pushing assistant referee George Gansner last year. If the league deemed Dempsey's conduct as referee assault, then Dempsey would receive the same length of suspension -- plus the additional burden of losing his paycheck and missing a significant portion of the Gold Cup because he would be ineligible to play for the national team -- for a lesser infraction.

Who made the final decision?

MLS commissioner Don Garber makes the final call in these circumstances.

Why isn't the MLS Disciplinary Committee involved?

The five-person panel is only engaged to render discipline for incidents occurring during regular season and MLS playoff matches, per the Disciplinary Committee principles and parameters.

How will the suspension impact Dempsey's prospects with the U.S. national team this summer?

There are no immediate repercussions from the suspension. Dempsey is eligible to feature for the U.S. national team once his MLS suspension concludes on June 28. He is available to play in the friendly against Guatemala and the group stage of the CONCACAF Gold Cup.

Any potential fallout would come through any decisions rendered by U.S. coach Jurgen Klinsmann. Does Klinsmann believe Dempsey should still serve as captain? Should this incident threaten his place in the Gold Cup squad? Those are questions for Klinsmann to answer at this stage.

What is next in terms of discipline?

The next step rests with the U.S. Open Cup Adjudication and Discipline Panel. The five-person panel -- comprised of three representatives from each of the three professional leagues, one player who is not competing in the Open Cup, and a U.S. Soccer vice president -- will convene next week to determine discipline for Dempsey and any other Sounders personnel.

Any discipline rendered by the panel applies exclusively to Open Cup matches, according to Open Cup policy. The panel also has the flexibility to assess fines for poor conduct.

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