The FA’s Regulatory Commission issues landmark anti-doping ruling

New 2021 WADA Code introduces landmark protection for minors.

On 8 July 2020, The FA charged the Player (our client) with breaches of Regulations 4(a) (Use) and 8(a) (Possession) of The FA’s Anti-Doping Regulations (the FAADR) following the discovery of Somatropin (growth hormone), a Prohibited Substance under section 2 of the World Anti-Doping Agency (WADA) Code 2019, in a pen dispenser, at the Player’s host family residence (Anti-Doping Rule Violation (ADRV) Charges).

The principle of lex mitior

It is important to note that at the time of being charged, the Player was subject to the 2019-20 FAADR. Being aware that the 2019-20 FAADR were to be replaced on 1 January 2021 by the 2021 FAADR, we applied to the Regulatory Commission to rely upon the principle of lex mitior.

Lex mitior means that if the applicable law and/or regulations relevant to the offence have been amended since the offence took place, the less severe law and/or regulations should be applied. In this case, the 2021 FAADR and WADA Code 2021 presented lower sanctions in the event that the Player was charged.

The key difference between the two versions of the FAADR and WADA Codes is the treatment of minors. Under the WADA Code 2019, there was no differentiation between minors and adults both of whom were subject to the same sanctioning criteria. Significantly, the WADA Code 2021 introduces categories of athletes under a new rule 10.6.1.3. The Player subsequently fell into the category of ‘Protected Persons’ (in this context a child under age 16). Crucially, this reduced the appliable sanctions and period of suspension up to a maximum of 2 years, whereas under the WADA Code 2019 the Player was subject to a maximum period of suspension of up to 4 years.

Material issues and findings

On behalf of the Player, we disputed the validity of the ADRV Charges on both factual and legal grounds, the main arguments, being:

1. Whether the evidence presented by The FA was sufficient to prove that the Player had committed the ADRV Charge of Use.

We were successful in arguing that The FA’s evidence was insufficient and this ADRV Charge failed.

2. Whether, in relation to the ADRV Charge of Possession the Player knew that the substance found at his host family residence was, in fact, a Prohibited Substance.

The Regulatory Commission concluded that the Player’s knowledge that the substance he possessed was a Prohibited Substance was not something which The FA needed to prove for this ADRV to be well-founded and consequently the Player was found to have committed the ADRV of Possession.

However, as a finding of fact the Regulatory Commission determined that the Player did not know that the epi-pen contained a Prohibited Substance or that there was a risk that it might.  This factored into the level of sanction (see below).

3. Whether, if either or both of the Charges were made out, the Player could demonstrate on the balance of probabilities such ADRV was not intentional (i.e. that the Player did not intend to cheat), reducing the potential sanction from a 4 year to a 2 year mandatory suspension; and

We succeeded in demonstrating to the Regulatory Commission that the Player did not intend to commit the ADRV of Possession.

4. Whether, applying the new WADA Code rule 10.6.3.1, the Player could demonstrate that he bore No or No Significant Fault or Negligence for the ADVR, such that the period of suspension could be reduced from a mandatory 2 years to a shorter period of suspension or lesser sanction.

We succeeded in demonstrating that the Player bore No Significant Fault or Negligence for the ADVR and consequently the period of suspension the Player received as a sanction was reduced from 2 years to 9 months.

Key factors reducing sanction delivered

In reaching its decision, the Regulatory Commission took account of the following material factors which we submitted on the Player’s behalf:

1. the Player’s young age (15) and the impact that had on both his conduct and his understanding
2. the Player’s (and his parents) lack of any anti-doping education from either the Club or directly from The FA.  It was submitted that this meant that the Player lacked the necessary knowledge of:
3. 1. the anti-doping regime and what was required of him in respect of it
   2. what a Prohibited Substance was and where he could find out whether a substance was a Prohibited Substance
   3. what he should have done when he discovered the pen dispenser; and
   4. ultimately what the potential consequences of a breach of the FAADR could be
4. the application of the principle of lex mitior which enabled us to argue that the Regulatory Commission should postpone making its decision until after 1 January 2021 and apply the new WADA Code (by which The FA is bound, notwithstanding that the FAADR do not currently reflect it) when considering an appropriate sanction.

Significant of the regulatory commission’s decision

The Regulatory Commission’s Decision is one of the first applications of a sanction pertaining to a minor under the new Code.  Moreover, this case highlights how crucial a role The FA and Clubs have in educating minors, their parents and other carers on anti-doping. 

For more information on our experience and services please contact Catherine Forshaw.