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In Football Association v Jake Livermore, [fa-v-jake-livermore-final-sept-2015---redacted-3], an FA Regulatory Commission on 8 September 2015 applied the proportionality principle so as not to impose mandatory sanctions in a doping case with “exceptional” circumstances.

The case was brought by The FA under its Anti-Doping Regulations (reflecting the 2009 WADA Code) against Jake Livermore, the Hull City player, for an in-competition positive test in April 2015 for the prohibited substance, cocaine.

Mr Livermore admitted the charge and an independent F.A. Regulatory Commission (the “Commission”) chaired by David Casement QC was convened to determine the appropriate sanction.

The Commission noted that there was no substantial dispute of fact between The FA and Mr Livermore. Of relevance to other cases in which a party considers factual matters to be particularly sensitive, the Commission was prepared to redact five pages of its decision dealing with the relevant factual background.

To the extent that the factual context is ascertainable from the redacted public decision, it centres on the tragic death in May 2014 (approximately one year prior to the anti-doping violation) of Mr Livermore’s son during childbirth and the impact of this on his mental health. The Commission noted (at paragraph 9), “For the purposes of these proceedings it is necessary to focus upon the effect of the death and circumstances of the death of [Mr Livermore’s son] upon Mr Livermore to ascertain the extent of the impairment to his thought processes and judgment at the time in question.” Evidence on this issue of impairment was given at the hearing by a consultant forensic psychiatrist.

The closest indication of the specific facts upon which the Commission has relied, is found at paragraphs 12-14 of the decision: “the clearest medical evidence as to the effect of [the death of his son] on Mr Livermore’s mental health…[t]he Circumstances as identified above including those redacted place this tragic case in a category of case properly regarded as exceptional and indeed unique in the judgment of the Commission. The degree of impairment was such that concepts such as fault and appropriateness of sanction are entirely inappropriate in the Circumstances.

As cocaine is not a “specified substance” (certain substances, particularly those with a greater likelihood of admitting of an innocent explanation of use, being “specified” in the WADA Code and bearing the possibility of a lighter sanction), The F.A.’s anti-doping regulations provided for the imposition of a mandatory 2 year suspension for Mr Livermore’s first anti-doping rule violation, subject to any finding of no, or no significant, fault or negligence. In accordance with the regulations, reflecting the WADA Code, in a case in which a player is found to bear “no fault or negligence”, the minimum period of suspension is eliminated and in a case in which a player is found to bear “no significant fault or negligence”, in the case of a first violation, the penalty may be reduced to a period of ineligibility of not less than 12 months.

No Fault or Negligence

The Commission held that Mr Livermore could not bring himself within the definition of “no fault or negligence” under the regulations, as the relevant definition required that he did not know or suspect, and could not reasonably have done so, that he had used a prohibited substance. The Commission explained that the medical evidence in the case was clear that Mr Livermore’s degree of impairment did not go so far as to mean that he did not know that he was consuming cocaine.

No significant fault or negligence

It was not disputed by The FA that in the circumstances of the case Mr Livermore ought to benefit from a reduction in the period of suspension to 12 months, on the basis that he was not significantly at fault or negligent, though this was of course ultimately a question for the Commission.

However, it was argued on behalf of Mr Livermore that it was not appropriate to impose even the minimum sanction provided for under the regulations for cases of “no significant fault or negligence” on the basis that the imposition of a 12 month suspension would be “such an affront to fairness and proportionality that it is possible to go below the period provided for” by the regulations and Article 10.5.2 of the WADA Code.

The Commission accepted this argument, finding Mr Livermore to be not significantly at fault or negligent and that, “[t]he Circumstances as identified herein, including those parts which are redacted, provide an extreme and unique case in which the imposition of a one year suspension pursuant to Regulation 70 would be wholly unfair as well as evidently and grossly disproportionate. The degree of impairment in the present case was so severe and the Circumstances giving rise to it so extreme as to be unique.

The Commission therefore concluded that Mr Livermore was “not negligent or at fault in any real sense” (para 33) and unanimously determined that “the imposition of any period of suspension would be wholly unjust and disproportionate. Indeed in the Circumstances it would be unconscionable to impose any period of suspension.

Comment                                                                                                                                                              

The decision is interesting for two main reasons: (1) the non-application of the mandatory penalty on grounds of proportionality and (2) the Commission’s willingness to reach a decision on the proportionate sanction on the basis of confidential, redacted facts.

Non-application of the mandatory penalty on grounds of proportionality

In reaching the decision that it should disregard the specified minimum penalty, under the regulations and the WADA Code, of a 12-month suspension in a case of “no significant fault or negligence”, the Commission has relied upon an interesting and controversial line of authority that WADA Code minimum sanctions can be disregarded in exceptional cases if the sanction provided for would not be “just and proportionate” in the circumstances.

In accordance with The F.A.’s anti-doping regulations, which reflect the provisions of the 2009 WADA Code, in non-specified substance cases, only a finding of “no fault or negligence” allows a Panel to impose no sanction upon a Player who admits an anti-doping rule violation. In “no significant fault or negligence” cases, as Article 10.5.2 of the 2009 WADA Code provides, “the reduced period of Ineligibility may not be less than one-half of the period in Ineligibility otherwise applicable.

Yet, having concluded that by reference to the definition of “no fault or negligence”, it could not bring the Player within that category, the Commission went on to disapply the minimum penalty for “no significant fault or negligence” in Mr Livermore’s case, to arrive at the same outcome: no period of suspension.

The decisions upon which the Commission relied in reaching its conclusion that depression may impair an player or athlete’s decision-making ability and therefore justify a reduction in sanction (Vlasov v ATP; USADA v Cosby) are not cases in which a stipulated range or minimum penalty has been disregarded. So while they establish that depression having the effect of such an impairment on an athlete’s decision making may be good reason for a reduction in sanction, they do not involve reductions of sanction beyond the range and minimum sanctions specified in the WADA Code.

The Commission’s decision (see para 29) rests on the CAS decision in M Puerta v ITF CAS 2006/A/1025 (and subsequent CAS cases that followed it), in which a CAS Panel declined to apply a specified 8 year period of suspension on the basis that it was a “very rare case [in which] the imposition of the WADC sanction will produce a result that it neither just nor proportionate”.

The CAS Panel in Puerta recognised that this was a difficult finding, stressing that the World Anti-Doping Code “works admirably in all by the very rare case”. As the Commission in Mr Livermore’s case itself observed (para 28), “Principles of proportionality are already, for the most part, given full expression within the World Anti-Doping Code.” Indeed, as the commentary to the 2009 WADA Code notes, the “no fault or negligence” and “no significant fault or negligence” are themselves categories designed to cater for exceptional circumstances, “….Articles 10.5.1 and 10.5.2 are meant to have an impact only in cases where the circumstances are truly exceptional and not in the vast majority of cases.”

Despite concluding that its primary obligation was to impose a penalty which was “just and proportionate” in the circumstances the CAS Panel in Puerta was keen at least to assert that this did not create a general discretion to disapply the minimum sanctions provided for by the WADA Code (as the Commission in this case has also stated at paragraph 35). As the CAS Panel in the later case of Warren v USADA (CAS 2008/A/1473) observed at para 125, “…despite the lengths to which the Panel in Puerta went to make it as clear as possible that its decision did not involve the exercise of a general discretion, there has seemingly been an increased incidence of cases in which Panels are asked to consider applying proportionality principles.

The Puerta decision is controversial because, despite the CAS Panel’s protestations to the contrary, it allows athletes who have tested positive for banned substances to argue for a disapplication of the minimum penalty by application of the discretion of Panels based on fact-specific arguments. That makes the consequences of infringement less clear-cut and the process of adjudication more complex, adding a greater risk of inconsistent treatment between decisions.

In Mr Livermore’s case, there is a curious tension between, on the one hand, the Commission’s conclusion that it could not find the player to bear “no fault or negligence” on account of the strict definition of that concept in the regulations and yet, on the other hand, its conclusion that it could disapply the minimum penalty applicable to cases of “no significant fault or negligence” which is also provided for in mandatory language in the regulations.   It would arguably have been more consistent with the Commission’s actual assessment of the facts to have done a certain amount of violence to the text of the “no fault” definition than the “no significant fault” penalty, given the Commission’s conclusion at paragraph 33 that Mr Livermore was “not negligent or at fault in any real sense”. Yet “no fault or negligence” is a jurisdiction which is simply inapplicable in factual circumstances where a Player understood or ought reasonably to have understood that he or she was taking a prohibited substance. The Commission’s decision to rest its decision on the disapplication of the mandatory minimum penalty under “no significant fault” rests on the fact that such disapplication on grounds of proportionality has precedent in the Puerta line of authorities whilst an expanded reading of the definition of “no fault” would break new ground.

The decision of the Commission is important for its engagement with the proportionality principle, given that Panels generally reject such arguments out of hand on the basis that the WADA Code already sufficiently reflects a proportionate system.

 

Proportionality and redaction for confidentiality

If the present case is one of the exceptional cases in which proportionality arguments have been successfully deployed to lead to a sanction less than the minimum penalty provided for by the WADA Code, was the Panel’s assessment that the facts justified such an exceptional departure well-founded?

The simple answer is that it is difficult to tell, as the most of the factual matters relevant to such a fact-sensitive judgment have been redacted. Whilst the fact of the death of the Player’s son is apparent from the decision, that tragic event is not in itself the explanation for the sanction, which hinges on the effect of the tragedy on Mr Livermore. There are other cases in which terrible tragedies have not operated to mean that an athlete receives no sanction, for example in Armstrong v World Curling Federation (CAS 2012/A/2756), CAS determined that the appropriate penalty for an athlete who had accidentally taken a prohibited substance without any intent to enhance his sporting performance in circumstances where the athlete’s wife had recently died and he was in a state of emotional stress meant that the proportionate sanction was one of 6 months’ suspension.

It is apparent from the Commission’s decision that it concluded that the death of his son had a more serious effect on Mr Livermore’s mental health and, in the opinion of a consultant psychiatrist, that his decision-making ability was significantly impaired at the point in time (nearly a year after his son’s death) when he took cocaine.

For most of the rest of the relevant facts, we are left guessing. What appears to have been critical to the outcome is the Commission’s finding on expert medical evidence that Mr Livermore’s cognitive functions and judgment were severely impaired. In the interests of open justice that poses a dilemma. On the one hand, the approach protects the player’s privacy, and potentially protects him from further harm. On the other hand, it fails to explain and guide future cases as to the basis for important parts of the Commission’s decision, for example, what specific features make this case “unique”.

Jake Livermore was represented by Nick De Marco of Blackstone Chambers (instructed by Mills & Reece and the Professional Footballers’ Association) in the proceedings.

Clerks

Staff