The Chelsea captain, who announced his retirement from international football on Sunday night, is facing an FA charge of "abusive and/or insulting words and/or behaviour" that "included a reference to the ethnic origin and/or colour and/or race of [QPR defender] Anton Ferdinand".
He was cleared of racism allegations at Westminster Magistrates Court in July despite admitting in court uttering the words "f****** black c***. He claimed it was used as part of a denial after he believed Ferdinand had accused him of using those words.
Andrew Nixon, a senior associate at law firm Thomas Eggar, stated:
"Terry is arguing that the FA does not have jurisdiction to bring disciplinary proceedings. Paragraph 6.8 of the FA Rules and Regulations appears to support this but he is unlikely to succeed:
1. Rule 6.8 clearly states that the rule will not apply in circumstances where there is clear evidence that the facts and matters relied upon were not correct. The FA will have satisfied itself during the investigation process that there is a case to answer by the player and that it is in the interests of the sport to bring the charges.
2. The incident took place during a Premier League match involving two players and comments alleged to be racist. Therefore it falls squarely within the FA’s jurisdiction.
3. The FA always intended to investigate this matter and bring charges if there was sufficient evidence. The reason why the governing body stayed its own investigations was not to pass jurisdiction to the criminal courts, but so as their own concurrent investigations would not prejudice the criminal case.
4. The criminal trial, internal disciplinary investigation and hearing are related only by the incident in question and nothing more. The charges and standard of proof will be different, marking out the sport’s own internal process as a very different type of tribunal.
"The FA will hear this case, but with hindsight the governing body could have made life easier for itself by expediting its own internal process notwithstanding the fact that the CPS had commenced investigations.
"There is no rule of law that provides that private disciplinary proceedings must be stated merely because criminal proceedings are afoot. Indeed, it has been argued with some merit that there is in fact substantial public interest (and certainly sporting interest) in the internal proceedings continuing unhindered.
"Of course the question of prejudice is fundamental, but as set out above, this is a private, sporting tribunal governed by a different procedure and standard of proof. In cricket, the ICC investigated, charged and sanctioned the Pakistani cricketers long before the criminal trial took place.
"That was in the interests of the sport and it did not prejudice the criminal trial, because the two sets of proceedings are very different."