The FA v Jake Livermore – Proportionality trumps mandatory doping sanction in exceptional circumstances

In Football Association v Jake Livermore,¹ 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.

This article reviews the case and provides comment on the decision. It will be of particular interest to anti-doping practitioners.

Facts

The case was brought by The FA under its Anti-Doping Regulations² (reflecting the 2009 WADA Code) (the “Regulations”) 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 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.

Decision

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.