SR/NADP/594/2016 NATIONAL ANTI-DOPING PANEL Before: Matthew Lohn (Chairman) BETWEEN: Jordan McMillan Appellant - and - UK Anti-Doping Respondent IN THE MATTER OF PROCEEDINGS BROUGHT UNDER THE ANTI-DOPING REGULATIONS OF THE SCOTTISH FOOTBALL ASSOCIATION 2015-16 NATIONAL ANTI-DOPING PANEL APPEAL DECISION INTRODUCTION 1. The appellant, Mr Jordan McMillan, appeals against a decision by UK Anti-Doping, communicated to him by email on 26 April 2016, that he has not provided Substantial Assistance for the purposes of Article 10.6.1(a) of the Scottish Football Association Anti-Doping Rules and is therefore not eligible to be considered for a partial reduction of the two year period of Ineligibility imposed upon him by a National Anti-Doping Panel.
2. Following directions issued by the Chairman, the appeal was heard in London on 17 June 2016. UKAD were represented by Ms Stacey Cross and Mr Tony Jackson. Mr McMillan was represented by Mr Mark Delehanty, instructed by Thomas Cooper LLP. Mr McMillan, his partner, Ms Elaine Maher, and Mr McClintock (who, although not a lawyer, represented Mr McMillan at a previous appeal) joined the hearing by video-link from Glasgow. BACKGROUND 3. Jordan McMillan ('the athlete') was charged by UK Anti-Doping ('UKAD') in 2014 following a positive finding for the metabolites of cocaine in a sample provided by him. The National Anti-Doping Panel ('NADP') found him guilty of committing an anti-doping rule violation pursuant to the Scottish Football Association Anti- Doping Rule ('ADR') 2.1: Presence of a Prohibited Substance. The decision of the NADP dated 21 April 2015 was to impose a two year period of Ineligibility commencing on 18 December 2014. 4. The athlete appealed the first instance decision. The appeal was dismissed by an Appeal Panel of the NADP and the period of Ineligibility was confirmed on 24 July 2015. The decisions from both tribunals set out in some detail their findings which are not necessary to repeat for the purposes of this decision. 5. At both the original hearing and before the appeal tribunal, the athlete maintained that he had ingested cocaine inadvertently when consuming a drink provided to him by a third party, Mr Sean Malloy. The athlete's evidence was that he had spent an afternoon in Mr Malloy's company where a considerable quantity of alcohol was consumed whilst watching a game of football. Mr Malloy gave evidence at both hearings to the effect that he mistakenly handed to Mr McMillan the wrong drink which contained cocaine. Neither the first instance tribunal nor the appeal tribunal accepted Mr Malloy's evidence and concluded that the athlete was unable to show how the cocaine came to enter his system. The athlete was therefore unable to seek a reduction of the period of Ineligibility for the purposes of the No Significant Fault provisions set out in ADR 10.5.2. 6. Amongst the new matters raised by the athlete at the appeal hearing was that Mr Malloy had been charged by the police with an offence in respect of the
provision of cocaine to the athlete and a decision was awaited from the Procurator Fiscal as to whether Mr Malloy would be prosecuted. 7. The background to the involvement of police was that Mr McMillan visited his local police station in Baird Street, Glasgow, in May 2015. He made a brief statement to the duty officer concerning Mr Malloy and the use of cocaine. Investigating officers subsequently visited the athlete at his home address and took a statement. According to the athlete he was advised by the police that they would undertake initial investigations. The athlete was later requested to attend Shettleston Police Office and made a formal statement that was recorded. 8. As part of the assistance provided to the police, the athlete said that he had arranged for his brother-in-law to make a formal statement xxxx xxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx. 9. The athlete was advised on 3 July 2015 that Police Scotland had concluded its investigation and Mr Malloy had been charged with an offence of Culpable and Reckless Conduct. 10. The Appeal Panel reviewed the issues relating to the police involvement. It concluded in its decision of 24 July 2015 that: "..the fact that a third party may be being investigated for a criminal offence on the basis of an admission does not establish the accuracy of the admission for the purposes of proceedings involving another person." 11. After the appeal tribunal's decision the athlete remained in contact with UKAD to ascertain whether any appeal would be brought by WADA or FIFA against the decision. No appeal was forthcoming. Alongside these events, the prosecution process against Mr Malloy faltered. The Procurator Fiscal indicated in September 2015 that Mr Malloy would not be prosecuted because of a lack of corroborative evidence. 12. Despite the decision not to prosecute, the athlete believes that the information he has provided to the police in relation to the commissioning of a criminal offence by Mr Malloy constitutes Substantial Assistance for the purposes of ADR
Article 10.6.1 and as such he is eligible for a reduction to his period of Ineligibility as provided for by the ADR. The athlete remains firm in his belief that Mr Malloy was responsible for his ingestion of the Prohibited Substance. 13. On 17 November 2015, following a number of discussions with UKAD, the athlete formally sought to invoke the provisions for Substantial Assistance. This led to both UKAD and the athlete entering into correspondence with the Procurator Fiscal to determine exactly why no prosecution would be brought. The answer to this question was provided in a letter dated 21 February 2016 to UKAD from Procurator Fiscal. The letter confirmed that 'it is correct that there was insufficient evidence to prosecute the person reported to this office. The law of Scotland requires that there is evidence from more than one source, establishing that a crime was committed and that a particular person was responsible for the commission of that crime On the facts available and presented, there was insufficient evidence and no action could be taken by this office.' 14. Thereafter the interpretation of the Substantial Assistance provisions was the subject of continued correspondence between UKAD and the athlete. UKAD disagree with the athlete's interpretation of the Substantial Assistance provisions. This was substantively confirmed by an email dated 26 April 2016 from UKAD to the athlete. It informed him of UKAD's view that the information he had provided to Scottish law enforcement/the Procurator Fiscal did not constitute substantial assistance as defined in ADR 10.6.1. It confirmed that its conclusion was shared by both WADA and FIFA. The email acknowledged that the athlete did have a right under the ADR to appeal its decision to the NADP, and moreover should the NADP consider that the information provided by athlete to Scottish law enforcement/the Procurator Fiscal did constitute substantial assistance, part of the athlete's period of Ineligibility may be suspended. 15. The athlete subsequently lodged an appeal through his representative on 17 May 2016. By way of skeleton argument dated 15 June 2016 the athlete submitted that it was not necessary for another person to be 'prosecuted' as a result of the assistance provided by him in order to satisfy the substantial assistance provisions; it was enough for another person to have been charged with a
criminal offence. Moreover, even if a prosecution were necessary, the information provided by the athlete did provide a sufficient basis for a prosecution. SUBSTANTIAL ASSISTANCE 16. Article 10.6.1(a) of the ADR provides: UKAD may, prior to a final appellate decision under Article 13 or the expiration of the time to appeal, suspend a part of the period of Ineligibility imposed in an individual case in which it has results management authority where the Player or other Person has provided Substantial Assistance to the Scottish FA, an Anti-Doping Organisation, criminal authority or professional disciplinary body which results in: (i) the Anti-Doping Organisation discovering or bringing forward an Anti-Doping Rule Violation by another Person, or (ii) which results in a criminal or disciplinary body discovering or bringing forward a criminal offense or the breach of professional rules committed by another Person and the information provided by the Person providing Substantial Assistance is made available to UKAD. After a final appellate decision under Article 13 or the expiration of time to appeal, UKAD may only suspend a part of the otherwise applicable period of Ineligibility with the approval of WADA and the applicable International Federation. 17. The ADR Appendix Definitions section provides: Substantial Assistance: For purposes of Article 10.6.1, a Person providing Substantial Assistance must: (1) fully disclose in a signed written statement all information that he/she possesses in relation to Anti-Doping Rule Violations; and (2) fully cooperate with the investigation and adjudication of any case related to that information, including (for example) by testifying at a hearing if requested to do so by UKAD or the hearing panel. Further, the information provided must be credible and must comprise an important part of any case that is initiated or, if no case is initiated, must have provided a sufficient basis upon which such a case could have been brought.
SUBMISSIONS 18. UKAD's position as to whether the athlete had provided Substantial Assistance was set out in its skeleton argument and developed at the hearing as follows: a. ADR Article 10.6.1(a) allows UKAD to suspend a part of the period of Ineligibility imposed on the athlete if the athlete has provided Substantial Assistance to the Scottish criminal authorities. The Substantial Assistance provided must result in the Scottish criminal authorities bringing forward or being able to bring forward a prosecution. b. UKAD accepts that the athlete (either personally or via third parties) has provided information regarding the commission of alleged criminal offences to the Scottish criminal authorities and has taken steps to assist the Scottish criminal authorities in discovering or the bringing forward a criminal offence. c. The Scottish criminal authorities determined that no action could be taken in respect of potential criminal proceedings due to a lack of corroborating evidence. (The law of Scotland requires there to be corroborative evidence in addition to a defendant admission for a prosecution to take place.) UKAD understands this to mean that the admissions made by Mr Malloy did not and could not provide a sufficient basis on which a criminal case could have been brought. d. The information provided by the athlete therefore did not provide a sufficient basis on which a case could have been brought; there was not enough evidence to bring a case or provide a sufficient basis upon which such a case could have been brought'. e. In consequence, the athlete has not provided information that qualifies as Substantial Assistance and is not able to benefit from a suspension of part of the period of Ineligibility in accordance with ADR Article 10.6.1. 19. UKAD confirmed it had consulted with WADA and FIFA in relation to this matter and both organisations agreed with UKAD s conclusions.
20. The athlete's position in response focussed on the question as to whether a case had been initiated; focussing on the language used in the definition of Substantial Assistance. The submissions made on the athlete's behalf were as follows: a. Where a police authority has charged a person with a criminal offence then that is sufficient to engage the Substantial Assistance provisions and by definition at that time the criminal offence must have been brought forward and therefore 'discovered'. b. The ordinary and plain meaning of the bringing forward of a criminal offence is that this refers to the first step on the road to a defendant being convicted at trial. That first step is charging, not prosecuting. c. The discovering or bringing forward of criminal offences by a 'criminal body' is not limited to a prosecuting authority but is plainly wide enough to encompass police forces. d. 'Case' cannot be limited to criminal proceedings that have reached the stage of prosecution. This can be seen from the deliberate choice of the verb initiate, which means to cause a process to begin. A criminal case does not begin with a prosecution. e. There are a number of stages to a criminal case in Scotland: (a) first, the stage of charging the person; (b) then, the stage of prosecuting the person; and, (c) the stage at which that person is either found guilty or not guilty. f. The definition of Substantial Assistance requires an athlete s co-operation in the 'investigation and adjudication of any case'. It follows that the meaning of a 'case' encompasses the investigation into the criminal offence that covers the post-charge, pre-prosecution phase. Therefore, if the word 'case' encompasses investigation then it must, in the context of a criminal offence, encompass the post-charge pre-prosecution stage. g. The purpose of the wording discovering or bringing forward a criminal offence in ADR Article 10.6.1(a) is to ensure that assistance rendered by an athlete in providing the information is material assistance which is worthy of
reward. The wording provides a threshold which requires that the criminal body in question be satisfied that a criminal offence may have been committed. There is no good reason for considering that information provided by an athlete which leads to a charge being brought is not material assistance worthy of reward. h. Interpreting the wording 'bringing forward of a criminal offence' so that the threshold is only met when the other person has been prosecuted sets far too high a bar and diminishes the incentive for athletes to report information to authorities. i. UKAD s approach to the interpretation also gives rise to a very practical problem of timing. It is not uncommon for persons to be charged with criminal offences for prolonged periods of time before they are eventually prosecuted particularly if the case is complex. UKAD's approach would give rise to scenarios where an athlete might consider that there is no point in taking the risk of providing information because his/her period of Ineligibility could well expire by the time any prosecution would come about. In such cases, the Substantial Assistance provisions would have been rendered redundant and the purpose of the regime frustrated. 21. On behalf of the athlete it was also submitted in the alternative (relying on the second part of the definition) that even if it were found that a case had not been 'initiated' then the athlete had provided information that 'provided a sufficient basis upon which such a case could have been brought'. This submission was amplified as follows: a. The purpose of the Substantial Assistance provisions is to encourage athletes to take risks in exposing drug misuse. Taking a narrow interpretation of sufficient basis would hinder the underlying purpose since an athlete in Scotland would have to be confident that there was corroborative evidence available in order to make it worth their while to provide information about doping. b. It would be an absurd result to require that athletes in Scotland have to seek out and provide corroborative evidence to benefit from the Substantial
Assistance provision. Athletes do not have the investigative powers that the Scottish police have, nor do they have access to legal advice to inform them of the necessary legal tests and thresholds required for an offence to be prosecuted. c. The information provided by the athlete did provide a sufficient basis for the Scottish police to bring a case and caused the police to seek out corroborative evidence such that a case could have been brought. 22. The Substantial Assistance definition also requires that the information must be 'credible'. Although both tribunals found the information provided by Mr Malloy was not credible UKAD did not pursue any line of argument that the information provided by the athlete was not 'credible' for the purposes of the definition. DECISION APPLICATION OF ADR ARTICLE 10.6.1(a) 23. For an athlete to avail themselves of the benefit of the Substantial Assistance provisions, ADR Article 10.6.1(a) requires that 'a criminal or disciplinary body' has discovered or brought 'forward a criminal offense'. This requirement is supplemented in the definition of Substantial Assistance which stipulates that 'the information provided must be credible and must comprise an important part of any case that is initiated or, if no case is initiated, must have provided a sufficient basis upon which such a case could have been brought' 24. In this case the athlete of his own volition reported what he believed to be criminal behaviour by Mr Malloy to the Scottish Police. In consequence of his actions, the athlete was formally interviewed by the police and a statement was taken from the athlete. Subsequent to this, Mr Malloy was charged with an offence. 25. There is a clear causal link between the athlete's action in visiting the Scottish Police and Mr Malloy being charged. The requirement for a criminal body to discover or bring forward a criminal offence is satisfied. 26. It therefore falls to consider whether a case was initiated and if so whether the athlete's information comprised 'an important part' of any decision that was
taken. UKAD's position is that without a prosecution a case cannot be said to have been initiated. That cannot be correct. 27. It was open to the Scottish Police having heard the athlete's account to take no further action or in the alternative make further preliminary enquiries and then to take no further action. The Scottish Police took a different course. Having considered the information provided to it by the athlete, it decided to charge Mr Malloy with an offence. In doing so, the Scottish Police must have formed a preliminary view as to the cogency of the athlete's evidence and the propensity for it to form the basis of a prosecution. 28. By charging Mr Malloy a criminal process was formally initiated. There is no suggestion that the charging decision by the Scottish Police was otherwise initiated but for the actions of the athlete. The athlete is therefore entitled to the benefit of the conclusion that the information provided by him comprised an important part of the decision to initiate the case. 29. To set the initiation threshold for an athlete to meet at a higher point and require a prosecution to be commenced would be importing into the ADR a requirement that has not been prescribed. The decision as to whether a prosecution is taken may require the collation of evidence which is simply outwith the possession, control or access of an athlete who seeks to assist the authorities. The ADR does not require this threshold to be met and were it to be the case then athletes could potentially be deterred from assisting the authorities (mindful of the adverse factors that could accompany such a decision) due to the concomitant uncertainty that the requirement for a prosecution may bring. 30. The fact that the Procurator Fiscal determined that a case could not be brought due to the lack of corroborative evidence should not undermine the benefit due to the athlete which arises from the charging decision having been made. The legal technicalities which must be observed by those who determine if a prosecution should be pursued are separate and distinct from the requirements set out in the ADR. 31. For these reasons the appeal against the decision made by UKAD that the athlete has not provided Substantial Assistance to the Scottish Criminal Authorities is
allowed. In the light of this finding it has not been necessary for consideration to be given to the alternative limb of appeal in respect of whether the athlete had provided information that 'provided a sufficient basis upon which such a case could have been brought'. SUSPENSION OF PERIOD OF INELIGIBILITY 32. At the hearing on 17 June 2016, the decision regarding applicability of ADR Article 10.6.1(a) was reserved. That noted, both Ms Cross and Mr Delehanty, on behalf of UKAD and the athlete respectively, agreed that submissions should be made on how the question of a suspension of ineligibility should be approached were the appeal to be allowed on the point of interpretation. 33. In the light of the finding above these submissions now fall to be considered. 34. For the athlete, it was submitted that three key factors should be taken into account: a. The athlete has provided information to the Police in circumstances where he and his family have suffered greatly to their detriment by his actions. b. But for the athlete's actions the police would not have uncovered this wrongdoing. c. The actions of the athlete in reporting the matter to the police have furthered the aims of the anti-doping authorities by showing that people in Mr Malloy's position also have to take responsibility for their actions around athletes who are bound by the WADA code. 35. In respect of the first issue, evidence was given to the hearing by the athlete and Ms Maher, the partner of the athlete. Xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 36. On behalf of the athlete it was submitted that if a reduction was made of only 1-2 months then it would send out a message that it's not worth assisting the authorities in doping matters. It was submitted that a signal needs to be sent out that there is to be a reward for going to the police in circumstances such as these. 37. With regard to the timing of the athlete seeking to avail himself of the Substantial Assistance provisions, there was a dispute as between the parties as to what the athlete had been advised by UKAD following the appeal tribunal decision. Notwithstanding this disagreement, it was common ground that the athlete had first visited the police in May 2015. 38. On behalf of UKAD, it was submitted that any reduction was entirely in the discretion of the Chairman; the matter had not been considered more widely by UKAD and, before it reached a view, it would need to be endorsed by FIFA and WADA in any event. DECISION SUSPENSION OF PERIOD OF INELIGBILITY 39. ADR Article 10.6.1(e) provides that where UKAD have declined to exercise its discretion and the matter comes before an appeal panel it may 'exercise such discretion if the conditions of article 10.6.1(a) are satisfied'. 40. The extent to which the otherwise applicable period of Ineligibility may be suspended is provided for by ADR Article 10.6.1(b) which provides that that the decision to suspend a period 'shall be based upon the seriousness of the Anti- Doping Rule Violation committed by the Athlete or other Person and the significance of the Substantial Assistance provided by the Athlete or other Person to eliminating doping in sport. No more than three quarters of the otherwise applicable period of Ineligibility may be suspended'. 41. The purpose of the Substantial Assistance regime was addressed by the Court of Arbitration for Sport in Hans Knauss v FIS, (Arbitration 2005/A/847; award of
20.07.05), in the context of other anti-doping rules which implemented similar Substantial Assistance provisions. The case was referred to in submissions on behalf of the athlete and reference was made to the determination of the Court at [25] as follows: "The intention of Article 10.5.3 FIS-Rules is to grant preferential treatment to athletes who, by furnishing information, contribute towards the fight against doping in their immediate environment. The motive for this preferential treatment is the recognition that the instruments for combating and eliminating the acts of trafficking, possession or the administration of prohibited substances are extremely limited. This is due primarily to the inherently clandestine nature of these activities and, secondly, the personal relationships which the athlete usually has developed to the people and athletes in his immediate proximity. The athlete will generally not want to expose these persons to the risk of a sanction. Article 10.5.3 FIS-Rules is intended to create an incentive for the athlete to provide the information which is urgently required for the fight against doping." 42. The Knauss decision clearly articulates the underlying purpose of the Substantial Assistance provisions: to provide an incentive to athletes to assist authorities in catching others involved in doping. The athlete's actions in this case must be considered against this background. 43. There is no question that the athlete should be given some credit for his actions. He has informed the police about Mr Malloy's actions in inadvertently providing him with cocaine which has led to Mr Malloy being charged with a criminal offence. The athlete has been prepared to inform the police and co-operate with them. His actions have been to the detriment of his and his immediate family's wellbeing. 44. That noted, the benefit to be derived from the athlete's behaviour is very limited. He contacted the police following his first NADP hearing. His actions have sought to demonstrate that people in Mr Malloy's position have to take responsibility for their actions around athletes who are bound by the WADA code; they were also seeking to assist his own position. The anti-doping value of his actions is limited.
Mr Malloy has not been revealed by the athlete to be involved with trafficking and distribution of performance enhancing drugs to athletes; the police investigation has not progressed the fight against doping of athletes to any material extent; and Mr Malloy was not engaged in systematically providing cocaine to athletes (according to the athlete, the provision of cocaine was inadvertent in any event.) 45. Against this analysis the suspension of the period of Ineligibility falls to be at the lower end of the scale. Athletes should not be deterred from seeking to avail themselves of the benefit of ADR 10.6.1(a) by the award of negligible periods but should also be realistic as to the true nature of the benefit they are providing by their actions. 46. In the instant case a period of one month properly reflects the benefit due to the athlete and his period of Ineligibility falls to be shortened by this period so as to end on 17 November 2016. Matthew Lohn 8 July 2016
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