18 February 2016 by

Doping violation – extreme circumstances led to The FA not imposing a ban

On 22 July 2015, The Football Association (“The FA”) charged Hull City footballer, Jake Livermore (“the Player”), with a breach of Regulation 3 of The Football Association’s Anti-Doping Regulations. The charge related to a positive urine test, given by the player, following a football match in April 2015, for a metabolite of cocaine, known as Benzoylecgonine. In accordance with The FA’s Regulations, which in turn, incorporate The World Anti Doping Code’s prohibited list (international standard), cocaine is classed as a non-specified stimulant and therefore is a prohibited substance.

The FA’s rules impose a mandatory penalty if any prohibited substance is found to be present in a player’s body. This is regardless of whether or not a player intended to take the prohibited substance.

The Player admitted the charge and therefore the only issue for The FA to decide was the type of sanction. To that end, The FA formed a Regulatory Commission to hear the evidence of both the FA and the Player and decide the type of sanction. It is important to note the Player’s background circumstances prior to the positive test. On 18 May 2014, the Player’s partner went into labour. Tragically, the Player’s newborn son died 39 minutes after being born. Subsequently an inquest was launched into the death and a two day hearing took place at Westminster Coroner’s Court, at which the coroner, found that the death could’ve been avoidable.

The FA’s starting point for the Sanction against the Player was a 2 year suspension. That level of sanction can be eliminated if the Player can establish that he had no fault or negligence and proves how the prohibited substance entered his body.

The Player raised three arguments at the Regulatory Commission hearing. 1) that the sanction should be eliminated on the basis that he had no fault or negligence; 2) that the sanction should be reduced to 12 months on the basis that he had no significant fault or negligence and; 3) this case was so exceptional that even a 12 month suspension would go against fairness and proportionality, allowing the Regulatory Commission to go below the 12 month suspension.

The Regulatory Commission found that the player could not rely on the arguments that he had no fault or negligence or that he had no significant fault or negligence, however, the Regulatory Commission found that when looking at the circumstances of the case, which were described to be “so extreme as to be unique” and applying the proportionality principle, it was ruled that it would be disproportionate and wholly unjust to impose any period of suspension upon the player.

The above case is of particular interest when looking at how the proportionality principle can be applied in cases where exceptional circumstances arise.

Should you wish to discuss any sporting regulatory issue, please contact us on 0207 288 4700.

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