The FA has today (12 February 2021) published the written reasons in the case of The FA v Nathaniel Mendez-Laing. This case concerned charges brought by The FA against the Player under The FA Anti-Doping Regulations 2019-20 (“19-20 ADR”), following the Player having provided a urine sample after his match for Cardiff City FC against Bristol City FC on 4 July 2020 which subsequently tested positive for metabolites of cocaine. Mr Mendez-Laing was represented by Simon Barker of the PFA, Phil Hutchinson of Mills & Reeve and Thomas Horton of 3 Hare Court.
The Player was notified of his anti doping rule violation (“ADRV”) on 14 August 2020 and provisionally suspended from participating in all first team and non-first team matches from that date. He was formally charged by The FA on 12 November 2020. Following evidence being submitted by both parties, the case was heard by a Regulatory Commission on 20 January 2021.
It is important to note that at the time of being charged, the Player was subject to the 19-20 ADR. However, by the time the case was heard, the 19-20 ADR had been replaced with the updated, and significantly amended, FA Anti Doping Regulations 2021 (“2021 ADR”). The 2021 ADR incorporated the FIFA Anti Doping Regulations 2021 (which in turn reflected the 2021 World Anti Doping Agency (“WADA”) Code) and came into force on 1 January 2021.
A key difference between the two sets of Regulations is the treatment of recreational drugs. As we anticipated in our previous article 1 , the 2021 ADR now contain radically different sanctions for substances that fall into the ‘Substances of Abuse’ category. The 2021 WADA Prohibited List defines “Substances of Abuse” as those that are ‘identified as such because they are freely abused in society outside of the context of sport.’ Specifically, it includes “cocaine, diamorphine (heroin), methylenedioxymethamphetamine (MDMA/”ecstasy”), tetrahydrocannabinol (THC).
Whereas under the 19-20 ADR a Player who tested positive for cocaine following an ‘in competition2 ’ test could potentially be facing a ban of up to 2 years where the ingestion was not ‘intentional3’ (save for any reduction based on ‘No Significant Fault or Negligence’ or ‘No Fault or Negligence’), under the 2021 ADR the appropriate sanction for a Player who can establish that the ingestion/use of cocaine occurred out of competition and was unrelated to sport performance is 3 months. This can be further reduced to one month if the Player completes a Substance of Abuse treatment program.4
The effect of these changes in the Regulations cannot be understated. Players/Athletes whose careers would have potentially been ended under a sanction imposed pursuant to the 19-20 ADR will now be able to continue in sport when sanctioned for the same offence under the more lenient 2021 ADR.
This is because the 2021 WADA Code and Prohibited List now recognise the difference between Substances of Abuse and performance enhancing substances in sport. This includes the acknowledgment that Substances of Abuse are often associated with addiction, which is reflected in the possibility of a further reduction in sanction for athletes who undergo a rehabilitation program. Contrast this to the sanctions of several years (and sometimes life) under the 2021 WADA Code for those athletes who have been found to have deliberately taken a performance enhancing substance. This suggests a deliberate and focused shift by WADA to primarily tackling those who cheat, rather than those who may have addictions to substances that do not, generally speaking, enhance sporting performance.
But what about players like Nathaniel Mendez-Laing, who were sanctioned under the 19-20 ADR but had their cases considered at the time the 2021 ADR/2021 WADA Code were in force? In these circumstances, players and athletes are entitled to rely upon the legal principle of lex mitior. This principle means that if the applicable law/regulations relevant to the offence/breach by the individual accused have been amended since the offence/breach took place, the less severe law should be applied. In this case, the less severe law is the 2021 ADR/2021 WADA Code.
However, it is important to note that whilst lex mitior is available to such individuals, both the 2021 ADR and 2021 WADA Code expressly state that the application of lex mitior is at the discretion of the Commission/Panel hearing the case, and that the starting point is the ADR under which the player/athlete was charged. In practice however, one would expect Commissions and Panels to exercise this discretion.
Crucially, lex mitior also provides recourse to athletes/players who were charged and sanctioned under the previous ADRs/WADA Code where the sanctions imposed were more severe than they would have been if they were imposed under the current regulations. Those individuals can now apply under the 2021 WADA Code or 2021 ADR (where applicable) for a reduction in sanction based on the new Substances of Abuse regime.
For Mr Mendez-Laing, this meant that provided he could demonstrate that he took cocaine out of competition and in a context unrelated to sport performance, he was able to rely on lex mitior to benefit from the new sanction regime of the 2021 ADR and therefore the substantial reduction for Substances of Abuse. Mr Mendez-Laing successfully demonstrated this, and the Regulatory Commission determined that lex mitior was applicable and therefore sanctioned him under the 2021 ADR.
Given that Mr Mendez-Laing had been provisionally suspended for over five months by the time his case was determined (which exceeded the maximum applicable suspension of 3 months under the 2021 ADR for this offence), he was able to resume playing football with immediate effect on 20 January 2021 once the Regulatory Commission had determined his case.
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Under the 19-20 ADR, the ‘in-competition’ period commenced 24 hours before the kick-off of a match (or first match of a competition) and terminates 24 hours after completion of the sample collection that takes place after the final whistle of a match (or final match of a competition). ↩
Para 50 2019-20 ADR: The term “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 Anti-Doping Rule 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 Anti-Doping Rule Violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competition shall be rebuttably presumed to be not intentional if the substance is a Specified Substance and the Participant can establish that the Prohibited Substance was Used Out-of-Competition. ↩
Paragraph 80(a) 2021 ADR ↩