Mendez-Laing and the 2021 WADA Code
On 12 November 2020 Nathaniel Mendez-Laing (“the Player”) was charged with a violation of the FA’s Anti-Doping Regulations 2019/2020 (“the FAADR”), reg. 3(a) (“the Charge”). FAADR, reg. 3(a) states:
‘Anti-Doping Rule Violations
…
(a) The presence of a Prohibited Substance or any of its Metabolites or Markers in a Sample provided by a Player is prohibited unless the Player establishes that the presence is consistent with a Therapeutic Use Exemption that has been granted to the Player’.
The Charge related to an ‘In-Competition’ Sample that the Player had provided on 4 July 2020 after his game against Bristol City FC (“the Sample”). Analysis results of the Sample disclosed the presence of benzoylecgonine and methylecgonine, metabolites of cocaine. Cocaine was a ‘Non-Specified Stimulant’ included on the ‘In-Competition’ Prohibited List (FAADR, Schedule Three; WADA Prohibited List 2020, S6.A).
The Player had been notified of the analysis results of the Sample on 14 August 2020 and, as a result, had been provisionally suspended from all football activity from that date pursuant to the FAADR, reg. 25.
The Player admitted the Charge.
Consequently, when the matter came before a FA Regulatory Commission the only issue to be determined was the appropriate sanction.
On 12 February 2021 the FA Regulatory Commission’s decision on the sanction imposed on the Player was announced (“the Commission’s Decision”).[1] The Player was sanctioned with a three-month suspension effective from the date of the Player’s provisional suspension. Accordingly, considering the duration of the provisional suspension already served by the Player as at the date of the Commission’s Decision (amounting to over five months) the Player’s three-month suspension ceased immediately.
The Commission’s Decision is significant as it provides an example of a successful application of the lex mitior principle. Between the date of the Charge and the matter coming before the FA Regulatory Commission, the WADA 2021 Code (“the 2021 Code”) had come into effect on 1 January 2021. Pursuant to the FAADR, reg. 51 and 69, the Player was facing a suspension of between one to two years. Comparatively, the 2021 Code, article 10.2.4 provides for a suspension of between one to three months in respect of an athlete’s use of, inter alia, cocaine if used ‘Out-Of-Competition’ and ‘unrelated to sport performance’.
This article will explain how the lex mitior principle was applied in the Commission’s Decision to allow the Player to be sanctioned in accordance with the 2021 WADA Code rather than the FAADR.
Lex mitior
The FAADR
The starting point for the Player’s FAADR violation was FAADR, reg. 36, which states:
‘… a penalty shall be imposed in accordance with Parts Six and Seven of [the FAADR]. Unless the Participant establishes that there are grounds to eliminate or reduce such penalty in accordance with any applicable provision of Part Eight [of the FAADR], the Regulatory Commission or Appeal Board shall have no discretion to reduce those penalties’ (emphasis added).
The FAADR, reg. 51 – found in Part Six of the FAADR – states:
‘Subject to the relevant provisions of Part Eight of [the FAADR], for a violation committed by a Player under Regulation 3 (presence)… the following penalties must be imposed:
(a) Where the [FAADR] Violation does not involve a Specified Substance, 4 years’ suspension, unless the Player… establishes that the violation was not intentional, in which case 2 years’ suspension’ (emphasis added).
As noted above, cocaine is only prohibited ‘In-Competition’ and is not a ‘Specified Substance’. The FAADR, reg. 50 is the relevant provision for determining whether the Player’s FAADR violation was ‘not intentional’, which states:
‘… “intentional” as used in this Part Six is meant to identify those Participants who cheat. The term therefore requires that the Participant engaged in conduct which he knew constituted an [ADR] Violation or knew that there was a significant risk that the conduct might constitute or result in an Anti-Doping Rule Violation and manifestly disregarded that risk... An [FAADR] violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competition shall not be considered intentional if the substance is not a Specified Substance and the Participant can establish that the Prohibited Substance was Used Out of Competition in a context unrelated to sport performance’ (emphasis added).
Accordingly, pursuant to the FAADR and subject to the Player proving on the balance of probabilities that his use of cocaine was ‘Used out of Competition’ and ‘in a context unrelated to sport performance’, the starting point for the Player’s sanction was to be a two-year suspension.
Pursuant to the FAADR, reg. 65 and 69, there was scope to seek a reduction to the starting point of a two-year suspension down to a minimum of a one-year suspension if the Player could also prove he bore ‘No Significant Fault or Negligence’. However, for the purposes of this article, and as noted in the Commission’s Decision, it is irrelevant to consider FAADR, reg, 65 and 69.[2]
The 2021 Code
As noted above, the 2021 Code came into effect on 1 January 2021. The FA is yet to release an updated version of the FAADR to reflect the 2021 Code. However, FIFA has released its Anti-Doping Regulations 2021(“FIFA ADR 2021”), which came into effect on 1 January 2021 and reflect the 2021 Code (FIFA ADR, reg. 88.5). Further, the FA, as a member association of FIFA, is obliged to comply with and incorporate the FIFA ADR 2021 into its own rules (FIFA ADR 2021, reg. 2).
The 2021 Code, article 27.2 states:
‘Any anti-doping rule violation case which is pending as of the Effective Date and any anti-doping rule violation case brought after the Effective Date based on an anti- doping rule violation which occurred prior to the Effective Date shall be governed by the substantive anti-doping rules in effect at the time the alleged anti-doping rule violation occurred, and not by the substantive anti-doping rules set out in this 2021 Code, unless the panel hearing the case determines the principle of “lex mitior” appropriately applies under the circumstances of the case’ (emphasis added).
The 2021 Code is unchanged insofar as FAADR, regulation 51 is concerned.[3] However, and significant to the Player’s case, the 2021 Code, article 10.2.4 states (see also FIFA ADR 2021, regulation 20.4):
‘Notwithstanding any other provision in Article 10.2, where the anti-doping rule violation involves a Substance of Abuse:
10.2.4.1 If the Athlete can establish that any ingestion or Use occurred Out-of- Competition and was unrelated to sport performance, then the period of ineligibility shall be [3] three months Ineligibility.
In addition, the period of Ineligibility calculated under this Article 10.2.4.1 may be reduced to one (1) month if the Athlete... completes a Substance of Abuse treatment program approved by the Anti-Doping Organization with Results Management responsibility...’ (emphasis added).
Pursuant to the 2021 Code, article 4.2.3 (see also FIFA ADR, regulation 17.4) ‘Substances of Abuse shall include those Prohibited Substances which are specifically identified as Substances of Abuse on the Prohibited List’.
The 2021 WADA Prohibited List, which also came into effect on 1 January 2021, states:
‘Pursuant to Article 4.2.3 of the Code, Substances of Abuse are substances that are identified as such because they are frequently abused in society outside of the context of sport. The following are designated Substances of Abuse: cocaine, diamorphine (heroin), methylenedioxymethamphetamine (MDMA/”ecstasy”), tetrahydrocannabinol (THC)’ (emphasis added).
Accordingly, pursuant to the 2021 Code, and subject to the Player proving on the balance of probabilities that his use of cocaine occurred ‘Out-of-Competition’ and was ‘unrelated to sport performance’, the Player’s sanction was to be a maximum of a three-month suspension or as low as a one-month suspension.[4] This is a significant difference from the starting point of a two-year suspension under the FAADR.
Lex mitior explained
The Commission’s Decision addressed whether, pursuant to the lex mitior principle, the Player could benefit from the more lenient sanction under the 2021 Code despite the Player’s FAADR violation occurring before the 2021 Code came into effect.
The lex mitior principle has been summarised as follows:
‘If the rules change in favour of the athlete between the time the acts in question occur and the time the hearing panel comes to determine the charge, either in terms of what constitutes a violation... or in terms of what the sanction is for a particular violation... the [Court of Arbitration for Sport] jurisprudence is clear that the criminal doctrine of lex mitior applies by analogy, ie the athlete is entitled to the benefit of the more lenient rule’.[5]
The Court of Arbitration for Sport jurisprudence referred to in that quotation includes the decision in Jakub Wawrzyniak v Hellenic Football Federation CAS 2009/A/2019, where the Panel in that case stated at para 16:
‘The principle of non-retroactivity is however mitigated by the application of the “lex mitior” principle. In this respect the Panel fully agrees with the statements contained in the advisory opinion CAS 94/128 rendered on 5 January 1995, UCI and Coni (Digest of CAS Awards (1986-1998), p. 477 at 491), which read (in the English translation of the pertinent portions) as follows:
“The principle whereby a criminal law applies as soon as it comes into force if it is more favourable to the accused (lex mitior) is a fundamental principle of any democratic regime... This principle applies to anti-doping regulations in view of the penal or at the very least disciplinary nature of the penalties that they allow to be imposed. By virtue of this principle, the body responsible for setting the punishment must enable the athlete convicted of doping to benefit from the new provisions, assumed to be less severe, even when the events in question occurred before they came into force. This must be true, in the Panel’s opinion, not only when the penalty has not yet been pronounced or appealed, but also when a penalty has become res judicata, provided that it has not yet been fully executed…’
Following that jurisprudence, the FA Regulatory Commission confirmed that the lex mitior principle will apply and allow the Player to be sanctioned pursuant to the 2021 Code if, on the balance of probabilities, the Player was able to prove that his use of cocaine occurred ‘Out-of-Competition’ and was ‘unrelated to sport performance’.[6]
The Player’s Case
Whether or not the Player’s use of cocaine was ‘Out-of-Competition’ required a determination of whether the Player’s use of cocaine occurred before the period commencing at 11:59pm on the day before the Sample was taken and ending once the Sample collection procedure had completed.[7] If the cocaine was used during that period, then the use of cocaine would be ‘In-Competition’.
Whether or not the Player’s use of cocaine was ‘unrelated to sport performance’ requires a simple determination of whether the Player’s use of cocaine was unrelated to his sport performance. For example, whether the player used cocaine socially as opposed to enhancing his sport performance.
The evidence before the FA Regulatory Commission on those points was as follows:
The Player’s witness statement, which explained that he had used cocaine before midnight on the evening of 3 July 2020 and that such use was unrelated to his sport performance.[8] The FA did not dispute the Player’s evidence.[9]
The FA relied upon an expert report from a Professor David Cowan to provide an opinion on when the Player used cocaine. Upon, inter alia, consideration of the Player’s witness statement and the Sample analysis results, Professor Cowan was of the opinion that the Player’s use of cocaine could have occurred either ‘Out-of-Competition’ or ‘In-Competition’.[10]
The Player relied upon an expert report from a Professor Pascal Kintz to provide an opinion on when the Player used cocaine. Upon, inter alia, consideration of the Player’s witness statement and the Sample analysis results, Professor Kintz was of the opinion that the Sample analysis results were consistent with the Player’s explanation that he had used cocaine before midnight on 3 July 2020.[11]
Considering that evidence, the FA Regulatory Commission accepted the Player’s evidence that he used cocaine before midnight on the evening of 3 July 2020 and that such use was unrelated to sport performance.[12] Consequently, the Player was entitled to rely on the principle of lex mitior and the more lenient sanction under the 2021 Code.[13]
Significance of the Commission’s Decision
The Commission’s Decision is one of the first applications of a sanction in respect of ‘Substances of Abuse’ under the 2021 Code where written reasons have been provided, if not generally. Moreover, the Commission’s Decision is a shining example of avoiding an excessive sporting sanction for conduct that, in this author’s opinion, is more effectively dealt with by a shorter sporting sanction and rehabilitative measures such as ‘a Substance of Abuse treatment program’. This is precisely why ‘Substances of Abuse’ were introduced and prescribed for in the 2021 Code: to see such conduct as a societal problem, and a problem that, individually, is properly addressed from the perspective of an athlete’s health and wellbeing rather than with mere punishment.
It is also worth noting that the 2021 Code allows for a football player currently serving a sporting sanction for an FAADR violation in relation to what are now deemed ‘Substances of Abuse’ to apply for a reduction to their sporting sanction considering the more lenient sanction under the 2021 Code.[14] This author represented the former Port Vale FC player Mr Ricky Miller in one of the first applications for retroactive application of the 2021 Code to reduce his two-year suspension to a three-month suspension. Mr Miller was consequently able to sign for Aldershot Town FC in January 2021. On a practical level, this also makes the Commission’s Decision even more appropriate.
Thomas Horton, barrister at 3 Hare Court and founder of Football Law, (instructed by Mills & Reeve) represented Nathaniel Mendez-Laing in the case discussed in this article.
Footnotes
[1] The FA v Nathaniel Mendez-Laing, The FA Regulatory Commission (Ch Charles Hollander QC), 20 January 2021.
[2] Ibid, [22].
[3] The 2021 Code, article 10.2.
[4] Ibid, article 3.1.
[5] Sport: Law and Practice (Bloomsbury 2014, 3rd edn.), Chapter C2, footnote 63.
[6] (n1), [16].
[7] The 2021 Code, Appendix 1; FIFA ADR 2021, Definitions, para. 34.
[8] (n1), [20].
[9] Ibid, [19].
[10] Ibid, [17] and [19].
[11] Ibid, [18].
[12] Ibid, [20].
[13] Ibid, [21].
[14] The 2021 Code, article 27.3; FIFA ADR 2021, regulation 88.5(d). The provision under the 2021 Code of course applies to athletes generally that are bound by the 2021 Code but the focus of this article – and this website – is on football in particular.
12 February 2021