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Marc Delehanty acts for Scottish footballer Jordan McMillan in successful appeal against length of doping ban

Marc
Delehanty, instructed by Thomas Cooper LLP, successfully represented
Scottish footballer Jordan McMillan in his appeal against the length of his
anti-doping ban.

In the appeal Marc
argued on McMillan’s behalf that he qualified for a reduction in the duration
of his ban because of the assistance he gave to the police in connection with
his anti-doping violation.

On that basis,
it was argued that McMillan satisfied the ‘Substantial Assistance’ criteria in the
WADA Code and UK Anti-Doping Rules (as transposed into the Scottish FA rules). Under
those rules, an athlete is eligible for a reduction of up to three-quarters of
the length of their ban if they provide information to the authorities which
satisfies the relevant criteria. The definition of ‘Substantial Assistance’ requires
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.”

There is little
caselaw on the meaning and interpretation of the rules on ‘Substantial
Assistance’. As such, the decision in McMillan’s appeal (published 16 August 2016)
will be of interest for two reasons:

1. First, the decision answered a novel
   point of interpretation of the rules concerning the threshold which has to be
   reached in order for provision of information to the police to qualify as
   provision of ‘Substantial Assistance’. UK Anti-Doping (UKAD) had argued that
   the threshold would be met only if the information provided by an athlete to
   the police led to the prosecution and/or conviction of another person. However,
   on this point of law, the National Anti-Doping Panel (NADP) agreed with Marc’s
   submissions and ruled that it is sufficient for the information provided by an
   athlete to have led to a criminal charge being brought and it was not necessary
   for a prosecution to have followed on from that.

2. Secondly,
   the decision provides guidance on the factors to be taken into account when
   determining how much time an athlete’s ban should be reduced by (if the athlete
   qualifies in principle for a reduction under the ‘Substantial Assistance’ rule).

McMillan had
tested positive for metabolites of cocaine in late 2014 and received a two-year
suspension following an NADP hearing in April 2015 (upheld on appeal in July
2015). McMillan’s defence was that he had inadvertently consumed cocaine which,
unbeknownst to him, had been mixed into an alcoholic drink given to him when
socialising. The NADP tribunal and appeal panel found that McMillan had not
discharged the burden of showing how the cocaine entered his system. (Marc did
not represent McMillan at these hearings.)

McMillan went to
the Scottish police and reported the incident of his drink having been spiked
by another person. The Scottish police went on not only to interview but also
to charge that other person with a criminal offence for his alleged conduct.
However, Scots law requires corroboration to found a criminal conviction and so
the Procurator Fiscal did not bring a prosecution.

On the facts,
the NADP decided to reduce McMillan’s ban by one month.

A copy of the
full decision can be found here: Jordan
McMillan v UKAD (No 2).

Marc is part of Littleton’s
Sports Group and is available to provide advice and representation to
athletes of all levels. He can be instructed via solicitors or, in appropriate
cases, directly by an athlete on a public access basis (i.e., without
the need for a solicitor). Please contact his clerks here.