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Non-application of the mandatory penalty on grounds of proportionality

Thursday, March 10, 2016

The FA v Jake Livermore

The English Football Association brought a case under its Anti-Doping Regulations (which reflect the 2009 WADA Code) against Jake Livermore, the Hull City player, for an in-competition positive test for the prohibited substance, cocaine in April 2015.


The FA Regulatory Commission found in favour of Livermore, applying the proportionality principle despite there being no substantial dispute of fact between the FA and Livermore.


The Commission found no significant fault or negligence on the part of Livermore on the basis that a significant personal tragedy adversely affected his mental health. The degree of impairment caused by this tragedy was such that concepts such as fault and appropriateness of sanction became entirely inappropriate in the circumstances.


In their decision, the Commission found that this was an extreme and unique case in which the imposition of a one year suspension pursuant to Regulation 70 of their Regulations would be wholly unfair as well as evidently and grossly disproportionate.


It was therefore held that the WADA Code minimum sanctions may be disregarded in exceptional cases if the sanction provided for would not be “just and proportionate” in the circumstances.


It remains to be seen whether this decision will be followed as precedent going forward, however from a social perspective, it must be seen as a positive step as the Commission’s decision acknowledges the existence of serious mental health issues in professional sportspeople and treated the individual in a compassionate manner taking into account his personal circumstances. The fact that the prohibited substance was not a performance enhancing substance was undoubtedly an important factor in the Commission’s decision.


Eoin Brereton