An analysis of the recent FA v Harry Toffolo case

On 13 September 2023, it was announced that Nottingham Forest full back Harry Toffolo had been given a five month ban and a fine of £20,956 for 375 breaches of the FA Betting Rules. Mr Toffolo’s ban was suspended in full and would therefore only take effect if he committed a further breach of the FA Betting Rules before the end of the 2024/25 season.

In light of this decision, the lengthy ban handed to Ivan Toney earlier this year for fewer breaches of the Rules has raised the question how Mr Toffolo, who had been charged with more breaches, had been given what appeared to be a more lenient sanction than his Premier League colleague. However, the recently published Written Reasons for the FA's decision demonstrate that it is more than just the number of breaches of the Betting Rules which determine the sanction that will be handed out. The type of bet placed, as well as any arguments in mitigation will also be considered by the Panel when determining the appropriate sanction in each case.

Phil Hutchinson and Harry Bambury of Mills & Reeve LLP (alongside Nick de Marco KC of Blackstone Chambers) represented Harry Toffolo in these proceedings.

The type of bet placed

The FA Betting Rules guidelines on sanction classify bets placed by Participants (which includes professional footballers in England) into a number of categories. These categories range from bets placed on a football competition that the Participant or their Club does not compete in, to the most egregious types of bets that may be placed: either a bet on the Participant’s own team to lose (where that player plays in the match), or a bet placed on a particular occurrence involving the Participant themselves.  Each category of bet has a corresponding suggested financial and sporting sanction, with the less reprehensible bets only attracting a fine, while the more serious bets could see a Participant handed a lifetime ban from all footballing activity.

It is crucial to note however that a Panel is not bound by these suggested sanctions, but in the interests of consistency and fairness, the guidelines invariably serve as a starting point when determining sanction. The type of bets placed by Mr Toffolo, in comparison, for example, to those placed by Toney, serves as the first explanation for the difference in sanction. While a large number of the bets placed by Mr Toffolo fell into the categories that attract less severe sanctions, Toney was found to have placed bets which, under the guidelines on sanction, on the face of it were more severe:

• Of Mr Toffolo’s 375 bets, 173 were placed on competitions in which neither Mr Toffolo nor his Club were participating or had participated during the relevant season. For this type of bet, the sanction guidelines recommend a sanction of a fine, with no suspension if there is no connection with the team that the Participant has bet on. Of the remaining 202 bets, only 17 fell into the category which attracted a potential ban of between 6 months and life.
• On the other hand, Ivan Toney was charged with 232 breaches of the FA Betting Rules. Of these, 50 bets were identified where Toney had either placed a bet against his own team or on a particular occurrence involving himself during a match. These bets fall into the most serious category for sanction.

Aggravating and mitigating factors

The second consideration which meant that the sanction handed to Mr Toffolo differed from that handed to Toney was the presence of mitigating factors (and the absence of aggravating factors). As noted above, the guidelines on sanction serve as a starting point for the Panel when determining the sanctions to be handed to a Participant who has been found to have breached the FA Betting Rules. The Panel, however, retains a discretion to consider any mitigating or aggravating factors present in each case. The Written Reasons for the FA's decision in Mr Toffolo’s case discuss the various mitigating factors that were considered by the Panel, namely:

• In Mr Toffolo’s case, the bets in question were placed between January 2014 and March 2017. During this time, Mr Toffolo was playing for Norwich City Under 23 Development Squad and went on loan a number of times. In an attempt to break into the first team, Mr Toffolo naively began gambling in order to ‘fit in’ with the first team players at the time, as it was commonplace for these players to discuss betting around the training ground.
• During the period in which the bets were placed, Mr Toffolo struggled with his mental health and became addicted to gambling.
• While on loan as a young player, Mr Toffolo lived on his own away from his family and suffered with loneliness. This was compounded by other issues that Mr Toffolo experienced during his times away on loan. The effect of these issues was that, during this time, Mr Toffolo considered his career in football to be over.
• The stakes placed on the more egregious bets by Mr Toffolo were very small.
• Mr Toffolo had not committed any other breaches of the FA’s Betting Rules outside of the relevant period and has not placed any bets on football since March 2017.
• When charged, Mr Toffolo did not seek to deny that the bets were made by him. He also assisted the FA in a number of different respects and fully co-operated with their investigation.
• Notably, Mr Toffolo had not received any formal education, instruction or training on ethical conduct or the FA Betting Rules during the period in which the bets were placed. Interestingly, the Panel did not view this as a mitigating factor but rather, as the absence of an aggravating factor. Ignorance of the Rules does not serve as a defence to a breach of the Rules. Instead, the Panel adopted the position that where a Participant is aware of the Rules and engages in conduct that breaches them, this will be treated as an aggravating factor. As Mr Toffolo had not received any education or training on the Rules during the relevant period, this aggravating factor was not present in this case.

A similar analysis of the Written Reasons for the FA's decision in Ivan Toney's case does not reveal the presence of these mitigating factors, but rather, shows that there were a number of considerations which were considered by the Panel to be aggravating factors, beyond simply the nature of the bets placed:

• Toney was fully aware of the FA Betting Rules while placing the bets in question.
• Toney was accepted to have given false and misleading responses during his interviews with the FA as part of their investigation.
• Toney placed bets through third parties in an attempt to deliberately conceal his betting from the FA.

Conclusion

Mr Toffolo’s case was the latest in a series of high-profile footballers charged with betting offences by the FA. The difference in sanction handed out in this case compared to those which have been given previously has once again sparked the wider debate as to whether the FA Betting Rules strike an appropriate balance between safeguarding the integrity of the game and treating players or those involved in the sport fairly. The emphasis on the significant mitigation in Mr Toffolo’s case is evidence that the FA are seemingly willing to view these charges in the context of a Participant’s own career and personal circumstances, although some may argue that the Rules remain too heavy-handed.