The FA v Harry Toffolo
On 11 July 2023, Harry Toffolo (“HT”) was charged by the FA with a breach of FA Rules, rule E1(b) in respect of 375 bets placed on football matches between 22 January 2014 and 18 March 2017 in breach of FA Rules, rule E8 (“the Charge”).
The FA Rules breached are those in force in their various forms at the relevant times. Previous versions of the FA Handbook are available here for reference. The most notable and relevant difference in the FA Rules is in rule E8 after the 2013/14 season, which widened the scope of betting offences that could be committed by a Participant.
HT admitted the Charge, and this article provides a case summary of the Regulatory Commission’s decision to sanction HT with (i) a warning; (ii) a fine of £20,956.22; and (iii) a five-month suspension from all football and football-related activities suspended upon condition that HT commits no further breach of the FA Rules, rule E8 before the end of the 2024/25 season.[1] The article will also provide a comparison with the recent case involving Ivan Toney, and identify the key practical takeaways from the Regulatory Commission’s decision.
Relevant background
The bets placed by HT were as follows:
In addition to the above, the following further detail of those bets was known:
40 bets were placed on HT’s own clubs.[2]
Of these, 15 bets were placed against HT’s clubs. In all but one of those matches HT was not in the squad for the match. In one of those matches HT entered the field of play as a substitute.
The remaining bets (it is noted that the written reasons refer to ’26 bets’ when it is presumed it should refer to 25 bets to bring the total to 40 bets) were placed on HT’s clubs. In the majority HT was not in the squad for those matches. On four occasions HT played the full match, and one occasion he was an unused substitute.
Two bets were placed on particular occurrences involving HT. These bets were for a stake of 25p each and were for HT to be ‘first/last goal scorer’ in the relevant match.[3]
26 bets were placed on particular occurrences not involving HT.[4]
Of these, four involved bets against HT’s own clubs. HT was not in the squad for four of the matches to which these bets relate. HT was in the squad and entered the field of play for one of the matches to which these bets relate; this bet was for an opposing player to score first and for the opposing team to win 2-1.
The bets were placed over a period of three years, at a time when HT was aged 18 to 21 years old.[5] HT confirmed that he had not bet on football since March 2017.[6]
Sanction guidelines
The FA has sanction guidelines for betting offences, which a Regulatory Commission must apply.[7] While such sanction guidelines must be applied, the sanction guidelines for betting offences, which can be found here, include the following wording:
‘The guidelines are not intended to override the discretion of Regulatory Commissions to impose such sanctions as they consider appropriate having regard to the particular facts and circumstances of a case. However, in the interests of consistency it is anticipated that the guidelines will be applied unless the applicable case has some particular characteristic(s) which justifies a greater or lesser sanction outside the guidelines.
The assessment of the seriousness of the offence will need to take account of the factors set out above. A key aspect is whether the offence creates the perception that the result or any other element of the match may have been affected by the bet, for example because the Participant has bet against himself or his club or on the contrivance of a particular occurrence within the match. Such conduct will be a serious aggravating factor in all cases. A further serious aggravating factor will be where the Participant played or was involved in the match on which the bet was made.
Betting offences are separate and distinct from charges under FA Rule E5 which concerns match fixing. It should be noted that save in exceptional circumstances a Participant found to have engaged in fixing the outcome or conduct of a match would be subject to a lifetime ban from the game. Where it can be proved that a bet has actually affected a result or occurrence within the match then such conduct will be specifically charged rather than treating the incident as a betting offence’.
The relevant part of the sanction guidelines is as follows:
From the above it can be identified that:
The 173 bets HT placed on matches and competitions where HT or HT’s clubs were not participating fall into the first column, with a recommended sanction of a ‘Warning/Fine’ but with no suspension.
The 15 bets HT placed against his own clubs fall into the fourth column, with a recommended sanction of a ‘Fine’ and a suspension of ‘6 months – life to be determined by factors below’.
The 25 bets HT placed on his own clubs fall within the third column, with a recommended sanction of a ‘Fine’ and a suspension of ‘0-6 months to be determined by factors below’.
The two bets HT placed on particular occurrences involving HT fall within the sixth column, with a recommended sanction of a ‘Fine’ and a suspension of ‘6 months – life’.
The 26 bets HT placed on particular occurrences not involving HT fall within the fifth column, with a recommended sanction of a ‘Fine’ and a suspension of ‘0-12 months’.
It is understood that the remaining 134 bets placed on matches and competitions in which HT or HT’s clubs were participating in did not involve HT’s club(s), and therefore fall into the second column, with a recommended sanction of a ‘Fine’ but with no suspension (there is no indication HT otherwise had a connection to whichever clubs he placed bets on).
It will also be noted from the above-quoted wording from the sanction guidelines that HT’s betting against his own clubs and betting on occurrences in matches in which HT’s clubs and HT were involved are aggravating factors. This was noted by the Regulatory Commission, but it was also noted that certain bets placed against HT’s own clubs were part of accumulator bets which the Regulatory Commission noted as being ‘matches over whose outcome HT could not conceivably have had any influence’.[8]
HT’s personal circumstances and mitigation
Just as the Regulatory Commission is required to apply aggravating factors when imposing penalties, it is also required to apply mitigating factors.[9]
The Regulatory Commission considered a transcript of HT’s interview with the FA held on 17 May 2023, HT’s witness statement and HT’s oral evidence provided at the hearing before the Regulatory Commission.[10] HT also relied upon evidence from Ricky Martin (who held various positions at Norwich City FC (“NCFC”) while HT was a player with NCFC); Steve Cooper (manager of Nottingham Forrest FC (“NFFC”), HT’s current club); Carlos Corberan (manager of Huddersfield Town FC (“HTFC”) while HT was a player with HTFC); and two unnamed individuals referred to as X and Y.[11] This further evidence corroborated, supported or otherwise provided further insight into HT’s evidence.
HT’s evidence can be summarised as follows:
In January 2014, when HT was 18 years old and signed to a professional development contract with NCFC, HT was told that he did not feature in his manager’s plans but also that he could not go out on loan. HT felt his future at NCFC looked bleak, and it was around this time that he began gambling. Interestingly, it is noted that HT began gambling to alleviate his low mood ‘but principally because he wanted to “fit in” with players who were claiming to be gambling regularly and successfully’.[12]
HT believed that he became addicted to gambling during this period. Although HT did not provide any expert evidence on this point the Regulatory Commission accepted that there was a link between his mental health and his gambling.
HT went on loan to Swindon Town FC in October 2014, where, despite on-pitch success, he ‘struggled with his mental health for a variety of reasons … [which] led him to gamble with increasing frequency’.[13]
In October 2015 and January 2016 HT went on loan to Rotherham United FC and Peterborough United FC respectively. At this time HT lived far from his family, suffered from loneliness, and his poor mental health and associated gambling continued.
In August 2016 HT went on loan to Scunthorpe United FC, where he fared much better and which HT attributed to his family moving with him. HT’s gambling decreased around this time until it stopped in March 2017.
Thereafter, with HT’s transfers to Lincoln City FC in July 2018, and later to HTFC and NFFC, HT’s career flourished. The Regulatory Commission noted ‘… it was clear from the evidence before us that [from spring 2017 onwards], with the support of his family and those around him, and with external help from a sports psychologist, HT made huge efforts to “turn things around”’.[14]
HT did not realise until around June 2018 that betting on football amounted to Misconduct. The Regulatory Commission did not give credit to HT for his ignorance of the FA Rules; the Regulatory Commission emphasised the need for Participants to become familiar with the FA Rules and noted that once HT became aware of the same in June 2018, he failed to then self-report his previous Misconduct.[15]
Generally, the Regulatory Commission also noted that HT was young when he placed bets, that he admitted his betting in his interview with the FA in May 2023 (the earliest opportunity to do so), that he assisted the FA in these disciplinary proceedings and continues to assist ‘with another matter’, and that he has offered to help the FA with its education of players to prevent gambling.[16] It was also noted that the bets were placed a considerable time ago, that the amounts staked were low, that HT had not placed a bet since March 2017, that HT was remorseful, and HT otherwise had a good disciplinary record.[17]
Sanction
Suspension
Considering the sanction guidelines and all the circumstances, the Regulatory Commission was of the view that a sporting sanction (i.e., a suspension) was ‘both proportionate and appropriate’ considering the ‘serious nature of the breaches committed by HT over a lengthy period of time’.[18]
The Regulatory Commission considered where HT’s bets fell within each column of the sanction guidelines (as detailed above) and decided that but for HT’s mitigation it would have sanctioned HT with a ten-month suspension.[19] The reasoning provided by the Regulatory Commission for this starting position was that it would have imposed:
A suspension in excess ‘of the bottom end of the ranges’ for offences falling in the fourth and sixth columns of the sanction guidelines (i.e., above six months);
A suspension ‘above the middle range’ for offences falling in the fifth column of the sanction guidelines (i.e., above six to nine months); and
A suspension ‘above the top end of the range’ for offences falling in the third column of the sanction guidelines (i.e., around 6 months).[20]
However, applying HT’s mitigation, the Regulatory Commission considered that that suspension should be reduced to a five-month suspension.[21]
There is a notable absence of reasoning in this part of the Regulatory Commission’s decision. For example, while previously decided cases are not binding and each case turns on its own facts, there is no reference to comparable cases. Similarly, there is no explanation of how (1) above is calculated; considering that the suspension range is from six months to life for offences in the fourth and six columns of the sanction guidelines, a starting point for suspension of 10 months seems low despite there being 17 betting offences falling into either the fourth or sixth columns of the sanction guidelines (and not counting the other betting offences committed). These comments apply in respect of the original ten-month suspension that would have been imposed and as to why a 50% reduction was applied for HT’s mitigation, and notwithstanding that there is evidence from X and Y which is either not summarised or is kept confidential in the Regulatory Commission’s written reasons.
In comparison to the recent decision in The FA v Ivan Toney, FA Regulatory Commission (David Casement KC), 23 May 2023 where Ivan Toney (“IT”) was charged by the FA in relation to 232 bets placed, it is noted:
13 of IT’s bets fell into the fourth column of the sanction guidelines and 15 fell into the sixth column of the sanction guidelines (therefore 28 betting offences falling into either the fourth or sixth columns of the sanction guidelines, 11 more than HT). IT is therefore worse in this regard.
It is also noted that, IT placed nine fewer bets than HT that fall into the third column of the sanction guidelines, and 20 fewer bets than HT that fall into the fifth column of the sanction guidelines. HT is therefore worse in this regard.
IT’s 16 bets that fell into the third column of the sanction guidelines involved games where IT played in 11 of those games and was an unused substitute in one game. Comparatively, HT’s 25 bets that fell into the third column of the sanction guidelines involved games where HT played in four games and was an unused substitute in one game. IT is therefore worse in this regard.
IT's 13 bets that fell into the fourth column of the sanction guidelines involved games where IT did not play in any of those matches. Comparatively, HT’s 15 bets that fell into the fourth column of the sanction guidelines involved games where HT made one appearance as a substitute. HT is therefore just worse in this regard.
IT’s 15 bets that fell into the sixth column of the sanction guidelines involved nine matches where at the time the bets were placed it would not have been public knowledge that IT was starting or playing in those matches. No similar detail is noted with the HT’s two bets that fell into the sixth column of the sanction guidelines. IT is therefore worse in this regard.
IT was sanctioned with, inter alia, an eight-month suspension with the original starting point being 15 months but being reduced considering IT’s guilty plea and mitigation, which included expert evidence identifying that IT suffered from a gambling addiction. However, it should be noted that there were significant aggravating factors in IT’s case, including IT denying his betting initially in interviews with the FA and using third parties and other Participants to place bets on his behalf.
It is appreciated that there is no exact science or calculation in determining the appropriate sanction for betting offences, but some elaboration on the Regulatory Commissions’ three points summarised above and why a 50% discount was applied for mitigation, and/or clear consideration of comparable cases would have been valuable.
Suspended suspension
The FA’s Disciplinary Regulations, Part A – General Provisions (2022/23 edition), para. 42-43 state:
’42. Save where any Rule or regulation expressly requires an immediate penalty to be imposed and subject to paragraphs 43-46 below, the Regulatory Commission may order that a penalty imposed is suspended for a specified period or until a specified event and on such terms and conditions as it considers appropriate
43. When considering imposing a suspended penalty a Regulatory Commission must:
(a) Determine the appropriate penalty for the breach, irrespective of any consideration of it being suspended, and
(b) Consider whether there is a clear and compelling reason(s) for suspending that penalty; if so
(i) Set out what the clear and compelling reason(s) are
(ii) Decide the period of the suspension or event until which the penalty will be suspended
(iii) Upon what other terms or conditions, if any, the penalty will be suspended’.
An FA Regulatory Commission has long had the power to suspend a penalty it imposes; the need to identify a ‘clear and compelling reason’ to suspend a penalty was introduced from the 2021/22 season. Although practically little has changed as to how a Regulatory Commission exercises its discretion to suspend a penalty, the need to expressly identify a clear and compelling reason is notable.[22]
In HT’s case, the Regulatory Commission noted that the FA was not seeking the imposition of an immediate sporting sanction. The Regulatory Commission then relied upon a number of the same points raised in HT’s mitigation as being clear and compelling reasons to suspend HT’s five-month suspension on the condition that HT does not commit any further breach of FA Rules, rule E8 before the end of the 2024/25 season.[23]
The decision provides helpful guidance that matters relied upon as mitigation to reduce the period of suspension and/or sanction generally can also be relied upon in support of establishing a clear and compelling reason to suspend the same. However, this is something notably different from the Regulatory Commission’s decision in Ivan Toney’s case.[24]
Fine, warning and costs
The Regulatory also sanctioned HT with a fine of £20,956.22, £20,000 ‘being proportionate taking into account HT’s net weekly football income’ and the remaining £956.22 representing the returns from HT’s bets.[25]
HT was also provided with a warning as to his future conduct, which is a routine sanction, and ordered HT to pay the Regulatory Commission’s costs.[26]
Conclusion
On balance, considering the amount of mitigation in HT’s case, the sanction imposed seems like a fair outcome. However, the Regulatory Commission’s decision would have benefited from clearer explanation or reasoning as to how it calculated the starting point for HT’s sanction and the reductions applied to the same. It is not inconceivable that if either party had been dissatisfied with the Regulatory Commission’s decision, then the lack of explanation or reasoning would have been used in support of a ground of appeal.[27]
The key practical takeaways however are:
Despite the availability of sanction guidelines, there is no exact science or calculation in determining the appropriate sanction for betting offences.
The Regulatory Commission’s reliance upon mitigating factors that reduced a penalty also being used to identify clear and compelling reasons to suspend that penalty.
The Regulatory Commission’s consideration and acceptance of a link between HT’s mental health and his gambling despite the absence of any expert evidence in respect of the same.
Footnotes
[1] The FA v Harry Toffolo, The FA Regulatory Commission (Ch. Graeme McPherson KC), 14 September 2023.
[2] (n1), [19(b)].
[3] Ibid, [19(c)].
[4] Ibid, [19(d)].
[5] Ibid, [20].
[6] Ibid.
[7] The FA’s Disciplinary Regulations, Part A – General Provisions, para. 42.1.
[8] Ibid, para. 42.2; (n1) [25]-[26] and [47].
[9] (n7), para. 42.2.
[10] (n1), [29].
[11] Ibid, [6(c)].
[12] Ibid, [29(c)].
[13] Ibid, [29(d)].
[14] Ibid, [33].
[15] Ibid, [36].
[16] Ibid, [37]-[39].
[17] Ibid, [40].
[18] Ibid, [46].
[19] Ibid, [47].
[20] Ibid, [47(c)].
[21] Ibid, [49].
[23] Cf. The FA v Mikkel Beck, The FA Appeal Board (Ch. Louis Weston), 28 April 2022, [63].
[23] Ibid, [51]-[53].
[24] The FA v Ivan Toney, FA Regulatory Commission (David Casement KC), 23 May 2023, [52].
[25] Ibid, [55].
[26] Ibid, [57]; The FA’s Disciplinary Regulations, Part A – General Provisions, para. 52.2.
[27] The FA’s Disciplinary Regulations, Part C – Appeals – Non-Fast Track, para. 1 and 2.
27 September 2023