The FA advisory panel saw no reason to overrule the decision of referee Scott Mathieson who felt Jermain intended to kick Walsall's Ian Roper - despite the player himself agreeing with Jermain's assertion that it was simply a kick of the turf in frustration.
A five match ban will now ensue taking in Saturday's FA Cup clash at Wigan and the league matches at Sheffield United and Bradford, as well as the home games against Preston and Rotherham - unless there is a replay with Wigan.
It is Jermain's third red card of the campaign but there is a feeling that he is being targeted by referees.
The ban will now mean he will have missed 12 games of the season through suspension, but Tony says, despite the blow, that positive thinking is needed.
"It is unfortunate for Jermain and the club, obviously, but the club still has Brian Deane, Marlon Harewood, and David Connolly up front and any team in the division would be envious of that.
"Appeals rarely come off so it is not entirely unexpected."