Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Sporting nationality and the Olympic Games: selected issues by Yann Hafner (University of Neuchâtel)

Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized in sports and nationality issues. He is also Legal Affairs Manager at the Fédération Internationale de Volleyball. Yann is an editor of the ASSER International Sports Law Blog and has previously published on the blog on nationality conundrums at the FIFA World Cup 2014 in Brazil (see here).  

This contribution aims to decipher the relationship between sporting nationality and the Olympic Games. To this end, the author will first define sporting nationality and discuss athletes’ eligibility in national team in the context of the Olympic Games. Then, selected issues in relation with sporting nationality and the Olympic Games (with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated. More...



Regulating the human body in sports: Lessons learned from the Dutee Chand case - by Dr Marjolaine Viret & Emily Wisnosky

Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.

Introduction

A remarkable aspect of the run-up to the 2016 Rio Olympic Games was the stream of negative media reports portraying broad-scale public mistrust in sport, with the most prominent topic being the doping scandals in athletics and questions surrounding the participation of Russia.  

A different controversy, but one also directed at the credibility of sports, has exposed a few female Olympians to repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported that Indian track-and-field athlete Dutee Chand had qualified for the Rio Olympic Games by breaking the national record, thus to become the first Indian athlete to run the 100m at the Olympics since 1980. The attention that Dutee Chand’s qualification attracted within international media, however, was not related only to her outstanding results. It came as part of a medical, ethical and legal controversy that has existed for many years relating to ‘policing’ the male versus female divide in sports. Another athlete who has found herself in the midst of this controversy is South African runner Semenya Caster, whose participation in the Olympics has been the object of much conjecture.

The divide between male and female athletes forms the core of most sports’ competition rules, including athletics. The justification for this basic divide has rarely been questioned as such, but has been a matter for debate when it comes to handling atypical situations on both sides of the ‘dividing line’ ­ such as ‘transgender’ or ‘intersex’ athletes. A category of athletes that has, especially, been viewed as a challenge to the divide is composed of female athletes affected by ‘hyperandrogenism’, a health condition that results in naturally elevated androgen levels, including testosterone levels.

On 24 July 2015, a CAS panel rendered a decision involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the ongoing debate about the policies regulating hyperandrogenism in sport. Much has been reported in the media about the case: controversial issues include whether the CAS was the appropriate forum to assess these questions; whether the decision was appropriate, both on the merits and on the procedure; and what the consequences of the CAS award would be, for the parties, for athletics and for the sporting community at large.

Much like the current crisis surrounding doping in sports, the public attention on women with (proven or suspected) hyperandrogenism is driven by a concern that an athlete’s physiology – natural or artificially induced ­ could distort competition, destroying the ‘level playing field’ that supports the Olympic ideal. Both topics are also often brought back to the goal of protecting an athlete’s health. Parallels are further found in the strong reactions both topics evoke, and the steps taken by the regulating authorities to convince the public that everything in their power is being done to preserve a level playing field.

A less obvious but equally important point of comparison can be found in the issues both topics raise concerning the legal validity of decisions made by sports organizations, especially in a science-related context. This blog focuses on those more ‘legal’ aspects, through the prism of the decision of the CAS in the Dutee Chand matter and its legal implications. After touching briefly on the background of the case, we will comment on two aspects of the Chand award with respect to challenges in regulating hyperandrogenism in sport within the confines of the law: First from the viewpoint of a CAS panel called upon to evaluate the validity of a set of regulations, and second from the viewpoint of the sports organizations seeking to both adequately protect fairness in sport and to provide a legally valid (and effective) regulatory solution.[1]

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International and European Sports Law – Monthly Report – July 2016 - By Marine Montejo

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we have overlooked. 

The Headlines

The McLaren Report on Russia’s State Doping System

It is difficult not to start this monthly report without referring to the never-ending Russian doping investigation that is shaking the sporting world. On 18 July, the independent investigation on Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested by the World Anti-Doping Agency (“WADA”), released its report. It confirmed evidence of widespread, State-sponsored doping in Russian sports and called for a full ban on the country from the next Rio Olympics. In response to the report, the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the appeal of the Russian Olympic Committee and 68 Russian athletes against the International Association of Athletics Federations (“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF membership given the evidence of a state-sponsored doping system. As a consequence, Russian track and field athletes were also banned from Rio 2016 Olympics. With the IAAF welcoming this decision, one could think that nothing was standing in the way of a full Olympic ban for all Russian athletes. While some Russian athletes announced that they would appeal the CAS award to the Swiss Federal Court. Yelena Isinbayeva, the banned pole vault champion, even took it a step further by claiming that she would challenge the IAAF decision as far as the European Court of Human Rights. Yet, it is very improbable that any of these challenges be decided in time for the Rio Games.More...

Brexit and EU law: Beyond the Premier League (Part 2). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre. 


Part 2. EU competition law and sports funding

The first analysed impact of Brexit on sport was the one regarding EU internal market rules and free movement. However, all sport areas that are of interest to the European Union will be impacted by the result of the future Brexit negotiations. This second part of the blog will focus on EU competition law and the media sector as well as direct funding opportunities keeping in mind that if the UK reaches for an EEA type agreement competition law and state aid rules will remain applicable as much as the funding programs.  More...


With or without them? Russia’s state doping system and the Olympic fate of Russian athletes. By Antoine Duval, Kester Mekenkamp and Oskar van Maren

On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian doping program surrounding the 2014 Sochi Winter Olympics. The report was expected to seriously threaten the participation of Russian Athletes to the rapidly approaching Rio Games, starting on 5 August. In the weekend prior to the report’s publishing, Reuters obtained a leaked letter drafted by the CEO’s of the US and Canadian anti-doping agencies, which according to the New York Times was backed by “antidoping officials from at least 10 nations— including those in the United States, Germany, Spain, Japan, Switzerland and Canada — and 20 athlete groups”, urging the International Olympic Committee (IOC) to ban all Russian athletes from the upcoming Olympics.

Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg

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Brexit and EU law: Beyond the Premier League (Part 1). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

The result of the Brexit referendum on 23 June 2016 took the European Union (almost) by surprise. A lot has been said and written about the impact of the United Kingdom leaving the EU. As in all other areas, the British sport sector will also face the effects of the modification of the relationship between the EU and its (probable) former Member State, the UK. It is nearly impossible to foresee all consequences as the UK has not even triggered article 50 TFEU yet to officially start the exit negotiations. However, as the UK position toward the EU will change in any case, this two-part blog aims to examine the main practical implications of such an exit for the UK, but also for the EU, in relation to the actual application of EU law in sport and the EU sport policy.

Unless stated otherwise, the use of the terms Brexit in this blog should be understood as a complete exit of the UK from the European Union. This blog focus in particular on this worst case scenario and its consequences for UK sport. However, it is highly improbable that the future Brexit negotiations with the EU will end up without some kind of special agreement between the two parties the first of which being an EEA type of agreement with full access to the internal market and applicability of EU law. 

The first part of this blog will examined the consequences for UK sport in terms of access to the EU internal market and the applicability of free movement principles. The second part is focused on specific impacts with regard of others domain of EU law for professional and grassroots UK sport.  More...

International and European Sports Law – Monthly Report – June 2016. By Kester Mekenkamp

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.   


The headlines

What a month June turned out to be. Waking up the morning after the 23rd, the results of the UK referendum on EU membership were final. The words of Mark Twain: “Apparently there is nothing that cannot happen today”, might provide the most apt description of the mood felt at the time.[1] The Leave campaign’s narrow victory has brought along tremendous economic, political and legal uncertainties for both the UK and the (other) Member States. To give but one example, with regard to the implications of Brexit on Europe’s most profiting football league, we recommend an older blog by Daniel Geey and Jonny Madill. More...


The EU State aid and sport saga: The Showdown

It’s been a long wait, but they’re finally here! On Monday, the European Commission released its decisions regarding State aid to seven Spanish professional football clubs (Real Madrid on two occasions) and five Dutch professional football clubs. The decisions mark the end of the formal investigations, which were opened in 2013. The Commission decided as follows: no State aid to PSV Eindhoven (1); compatible aid to the Dutch clubs FC Den Bosch, MVV Maastricht, NEC Nijmegen and Willem II (2); and incompatible aid granted to the Spanish football clubs Real Madrid, FC Barcelona, Valencia CF, Athletic Bilbao, Atlético Osasuna, Elche and Hércules (3). 

The recovery decisions in particular are truly historic. The rules on State aid have existed since the foundation of the European Economic Community in 1958, but it is the very first time that professional football clubs have been ordered to repay aid received from (local) public authorities.[1] In a way, these decisions complete a development set in motion with the Walrave and Koch ruling of 1974, where the CJEU held that professional sporting activity, and therefore also football, is subject to EU law. The landmark Bosman case of 1995 proved to be of great significance as regards free movement of (professional) athletes and the Meca-Medina case of 2006 settled that EU competition rules were equally applicable to the regulatory activity of sport. The fact that the first ever State aid recovery decision concerns major clubs like Real Madrid, FC Barcelona and Valencia, give the decisions extra bite. Therefore, this blog post will focus primarily on the negative/recovery decisions[2], their consequences and the legal remedies available to the parties involved.[3] More...

International and European Sports Law – Monthly Report – May 2016. By Marine Montejo

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.   


The Headlines

Challenged membership put a lot of emphasis on football federations in May. The Court of Arbitration for Sport (“CAS”) has rendered an award, on 27 April 2016, ordering the FIFA Council to submit the application of the Gibraltar Football Association (GFA) for FIFA membership to the FIFA Congress (the body authorised to admit new members to FIFA). The GFA has sought since 1999 to become a member of UEFA and FIFA. In May 2013, it became a member of the UEFA and went on to seek membership of FIFA. More...


Operación Puerto Strikes Back!

Forget the European Championship currently held in France or the upcoming Olympic Games in Rio. Doping scandals are making the headlines more than ever in 2016. From tennis star Sharapova receiving a two-year ban for her use of the controversial ‘meldonium’, to the seemingly never-ending doping scandals in athletics. As if this was not enough, a new chapter was added on 14 June to one of the most infamous and obscure doping sagas in history: the Operación Puerto.

The special criminal appeal chamber,  the Audiencia Provincial, has held that the more than 200 blood bags of professional athletes that have been at the center of the investigations since 2006 can be delivered to the relevant sporting authorities, such as the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). In other words, there is now a good chance that the identities of the involved athletes might eventually be revealed.

Source: http://www.telegraph.co.uk/sport/othersports/cycling/9834122/Operation-Puerto-doctor-Eufemiano-Fuentes-treated-tennis-players-athletes-footballers-and-a-boxer.html

This case note will analyze the court’s ruling and summarize its most important findings. Given the amount of time passed since the scandal first came to light (2004), the blog will commence with a short background summary of the relevant facts. More...

Asser International Sports Law Blog | How Data Protection Crystallises Key Legal Challenges in Anti-Doping - By Marjolaine Viret

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

How Data Protection Crystallises Key Legal Challenges in Anti-Doping - By Marjolaine Viret

Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.


Since the spectre of the EU General Data Protection Regulation (‘GDPR’) has loomed over the sports sector,[1] a new wind seems to be blowing on anti-doping, with a palpable growing interest for stakes involved in data processing. Nothing that would quite qualify as a wind of change yet, but a gentle breeze of awareness at the very least.

Though the GDPR does mention the fight against doping in sport as a potential matter of public health in its recitals,[2] EU authorities have not gone so far as to create a standalone ground on which anti-doping organisations could rely to legitimise their data processing. Whether or not anti-doping organisations have a basis to process personal data – and specifically sensitive data – as part of their anti-doping activities, thus remains dependent on the peculiarities of each national law. Even anti-doping organisations that are incorporated outside the EU are affected to the extent they process data about athletes in the EU.[3] This includes international sports federations, many of which are organised as private associations under Swiss law. Moreover, the Swiss Data Protection Act (‘DPA’) is currently under review, and the revised legal framework should largely mirror the GDPR, subject to a few Swiss peculiarities. All anti-doping organisations undertake at a minimum to abide by the WADA International Standard for Privacy and the Protection of Personal Information (‘ISPPPI’), which has been adapted with effect to 1 June 2018 and enshrines requirements similar to those of the GDPR. However, the ISPPPI stops short of actually referring to the GDPR and leaves discretion for anti-doping organisations to adapt to other legislative environments.

The purpose of this blog is not to offer a detailed analysis of the requirements that anti-doping organisations must abide by under data protection laws, but to highlight how issues around data processing have come to crystallise key challenges that anti-doping organisations face globally. Some of these challenges have been on the table since the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but are now exposed in the unforgiving light of data protection requirements.


Who is who and who does what?

It is hardly a scoop for those familiar with the World Anti-Doping Program to state that its structures are complex, relying on an intricate network of private entities as well as public (or quasi-public) agencies, each subject to their own applicable laws. The World Anti-Doping Program has always struggled with reconciling its objectives of global harmonisation with the sovereignty and diversity of national laws. National Anti-Doping Organisations (‘NADO’s) operate at the national level; they are in charge of doping issues across all sports in one country and are endowed with more or less extensive enforcement powers depending on their country’s regulatory approach to the sport sector. By contrast, international federations claim exclusive governance over one sport worldwide, uniformly and without regard to national borders but have to do so with the instruments available to private entities based on contractual or similar tools of private autonomy.

Over time, the WADC has been repeatedly updated to strike a balance between the two (national versus international) spheres and avoid positive or negative conflicts of competence. Provisions seek to clarify attributions in areas where international- and national-level competences collide, such as roles in Therapeutic Use Exemption (‘TUE’) management, testing authority, or results management responsibilities.[4] Even as it is, there is no safeguard to prevent disputes from arising about the proper authority to investigate and initiate proceedings for doping.[5]

Data processing activities are not exempted from the difficulties that accompany the complexity of anti-doping. If anything, these difficulties are rather exacerbated by data protection laws. In particular, the GDPR seeks to create a framework within which data subjects can easily recognise when data is being processed about them, by whom and to what aim(s), and whom to turn to in order to exercise their rights. This forces anti-doping organisations to be precise and unambiguous about their respective roles and attributions among themselves and chiefly towards the data subjects, the athletes subject to doping control.

The GDPR draws a distinction between two major categories of entities that process personal data: an entity can be characterised either as a data ‘controller’, or as a data ‘processor’. A controller is defined as an entity which “alone or jointly with others, determines the purposes and means of the processing of personal data”. A processor is an entity “which processes personal data on behalf of” a controller.[6]

The distinction may seem rather straightforward at first sight: the controller has a personal or commercial interest in the data processing and decides which data to collect, from whom, and through what means. At the other end of the spectrum, a ‘typical’ processor receives documented instructions from a controller and merely implements these instructions with no autonomy of decision or an autonomy limited to technical issues and logistics. However, interrelationships are often much more subtle in reality with considerable room for borderline situations: multiple controllers may need to agree on their (joint) controllership of the data while operating alongside entities that may act in part as processors, in part as controllers of their own right for different aspects of the data processing.[7]

In anti-doping, more than half a dozen entities may be involved in a routine doping control activity, between test planning and the outcome of a disciplinary process. All of these will either collect or gain access to athlete data, including sensitive data, as illustrated by the following: an international federation decides to conduct blood testing on an athlete from its registered testing pool but delegates sample collection to the NADO of the country in which the athlete is currently residing. To do so, the NADO has access to the athlete’s whereabouts filings through the ADAMS database, managed by the World Anti-Doping Agency (‘WADA’). The NADO itself carries out sample collection through a private service provider with its dedicated blood control officers and decides to use the opportunity to order, in addition, the collection of urine samples from the athlete. Upon sampling, the athlete is asked to fill in the doping control form in front of the doping control personnel, which includes disclosing several ongoing medication courses in the dedicated box. Samples are then transported, in a de-identified (‘coded’) form, by private courier from the country of collection to the international federation’s usual WADA-accredited laboratory in a different country.

Assuming the laboratory reports an adverse analytical finding in the blood sample, the international federation requests a full documentation package from the laboratory and verifies whether a Therapeutic Use Exemption on the record could be related to the adverse analytical finding. Upon notification of the results and public announcement of the immediate provisional suspension, the athlete requests the analysis of the B sample, thereby de facto lifting the code on the A sample where the laboratory is concerned. The athlete submits a series of explanations regarding the possible causes for the adverse analytical finding, including a report from his treating physician regarding a medical condition that might account for the findings. The international federation may send the laboratory documentation package and athlete explanations to external experts for additional input and then hands over the file to its external anti-doping tribunal members. Most data will at some point have to pass through the ADAMS database and be stored within that database for up to ten years. However, it may also be communicated by other (electronic or physical) means among anti-doping organisations and their service providers and experts.

Once the disciplinary decision is issued, its main elements are publicly disclosed by the international federation on its website, and the decision shared with WADA and any NADO having jurisdiction over the athlete. The NADO further decides to send the negative urine sample for long-term storage and possible reanalysis to the WADA-accredited laboratory that provides its storage facilities.

The above description represents an imaginary but ultimately rather standard situation for anti-doping organisations. It does not seem too far-fetched to identify that the international federation at the very least acts as a controller of the athlete data processed. However, a NADO who receives instructions to collect samples and also decides to collect additional data (and additional biological materials) on its own and for its own purposes, potentially acts as both a processor and controller depending on the data at stake. A number of processors and sub-processors are involved in the process as service providers, while the qualification of external experts may have to be assessed on a case-by-case basis. WADA offers the ADAMS database as an IT infrastructure for data storage and sharing for the international federation and NADO but also uses the data to fulfil its own obligations and purposes under the WADC, such as exercising its appeal rights or verifying compliance of the anti-doping organisations with their duties. Arguably, at the very least there will be three controllers of data (international federation, NADO, and WADA) in addition to multiple processors and sub-processors.

Characterising the role of each entity as a ‘controller’ or as a ‘processor’ is far from being of academic interest only. The two types of entities have distinct responsibilities and requirements for lawful processing. Appropriate contractual arrangements need to be set up among the entities involved, and data subjects must be informed of these in a comprehensible manner allowing them to exercise their rights. Controllers have primary responsibility for dealing with data subject requests and responding to supervisory authorities and have a more extensive scope of liability across the entire scope of data processing. By contrast, processors are, in essence, only liable for their own processing activities and merely undertake to support the controllers in their obligations towards data subjects and authorities.[8]

There is one other important difference that carries special significance in the context of anti-doping: a processor who acts under instructions can rely on the processing contract with the controller responsible for the data as a lawful basis for processing.[9] By contrast, if two or more parties qualify as controllers in their own right, each controller needs to secure its individual lawful basis with respect to the data subjects. The requirement of lawful processing is entwined with the discussion around the validity of ‘consent’ to anti-doping regulations.


Lawful basis and problematic character of consent

Processing of personal data under the GDRP requires a lawful basis. As relevant to our topic, three types of legitimising grounds co-exist: i.) grounds rooted in private autonomy (consent or necessity for performance of a contract with the data subject), ii.) grounds relying on public interest or overriding interests of the controller (e.g. pursuing a legal claim), or iii.) a specific basis in Union or national law, e.g. for performance of a substantial public interest or public health task.[10] Not all grounds enter into consideration for every category of data; special categories of data – also known as ‘sensitive’ data under the DPA – have a more limited number of valid processing grounds.[11] Obviously, a major part of data processed as part of doping control qualifies as sensitive data as it relates to health,[12] including the data gathered through analysis of doping control samples or collected as part of TUE applications.

The traditional way for international sports organisations to impose their rules on their ultimate addressees, i.e., the individual athletes, has been through contract, quasi-contractual chains of submission, or other instruments involving a declaration of consent. The validity of consent on the part of those who submit to anti-doping regulations is a recurring matter for debate, in particular as its informed and voluntary character is generally described at best as limited and more frequently as purely illusory. The issue has been scrutinised in particular with respect to submission to proceedings before the Court of Arbitration for Sport (‘CAS’),[13] which the WADC imposes as a legal remedy in international doping disputes. While acknowledging the ‘constrained’ nature of the athlete’s consent, the Swiss Supreme Court accepts the validity of arbitration clauses in sports regulations in the name of the needs for swift and competent resolution of sport disputes. It has, however, imposed certain limits on the extent to which an athlete can entrust their fate to the sports resolution system. As decided in the Cañas v. ATP case, an athlete cannot validly waive in advance the right to challenge the CAS award in front of the Supreme Court in disciplinary matters.[14] In Pechstein v. Switzerland, the European Court of Human Rights (‘ECtHR’) was asked to discuss the status of an arbitration clause in the context of doping proceedings. It reached the same conclusion that the only choice offered to the athlete was either to accept the clause in order to be able to make a living by practising her sport at a professional level or to refuse it and completely give up on practising at such level. As a result of this restriction on the athlete’s professional life, it was not possible to argue that she accepted the clause ‘in a free and unequivocal manner’.[15]

In both cases, the findings were ultimately of little consequence for the sports sector. The Swiss Supreme Court only reviews CAS awards through an extremely narrow lens so that the power to set strategic jurisprudence in sports matters remains with the CAS panels, whether or not athletes retain their rights to challenge the award. Similarly, in the Claudia Pechstein matter, the only shortcoming found in the ruling was the lack of an option for a public hearing in CAS proceedings. Absence of genuine consent has thus been – expressly or implicitly – compensated for by courts through procedural safeguards, in an effort to ensure that athletes still benefit overall from a system of justice broadly compliant with Article 6 of the European Convention on Human Rights.

Data protection issues create a greater challenge here, since the GDPR explicitly requires consent to be ‘freely given’, in addition to being informed.[16] The same is true under the Swiss DPA.[17] The GDPR does not accommodate compensatory mechanisms to account for the ‘fictional’ character of consent in the sports context: consent that is not optional is not free, and consent that is not free is not valid. Importantly, free consent also presupposes that consent can be withdrawn at any time as easily as it was given and without significant detrimental consequences for the data subject.[18]

I will not delve here into how anti-doping organisations can fulfil the requirement of ‘informed consent’, which as per the GDPR requires “intelligible and easily accessible form, using clear and plain language”.[19] The template information notices (here and here) proposed by WADA currently in effect inform athletes, in essence, that their data may be processed based on various legal grounds, may be accessed by various entities around the world according to various data protections laws, which may offer them various levels of protection, and that they may have various rights and obligations under these laws. It is questionable whether explanations in this form would satisfy the requirements for informed consent. Still, adequate information appears at least achievable with appropriate and individualised legal drafting supported by a data protection specialist. The question of free consent is a much more delicate one since it is not in the hands of anti-doping organisations to give athletes a genuine choice in this respect.

In spite of the potential financial implications, one could argue that consent is freely given where the athlete can choose at any time to withdraw consent to data processing, with the sole consequence of losing the benefit of the services attached to the ‘contractual’ relationship with their sports authorities, i.e. the right to participate in sports competitions. This would, for example, suppose that an athlete notified of a testing attempt could elect to either submit or instead declare immediate retirement from sport without any further consequences. Under the current rules, however, such withdrawal of consent would trigger disciplinary sanctions, which may include ineligibility or fines depending on the sport, and in any event, will have a significant impact on the athlete’s reputation. The templates proposed by WADA explicitly warn athletes about these consequences, as well as the fact that anti-doping organisations may retain and continue processing their data in spite of any withdrawal (see here and here). In fact, the WADC provides that the results management and disciplinary process may be initiated or may continue in spite of the athlete announcing their retirement from sport.[20]

To this day, one is still awaiting a realistic proposal that would allow consent to anti-doping regulations to be genuinely freely given. Most stakeholders would agree that there is no viable manner of making compliance with anti-doping rules optional for athletes without undermining the very notion of a level playing field.[21] Unlike the relatively benign implications that lack of genuine consent had for the sport dispute resolution system so far, the impossibility of creating the prerequisites for free consent to anti-doping regulations is far more consequential in the data protection context. Indeed, it precludes reliance on consent as a reliable lawful basis that can be used globally by international sports governing bodies to secure the lawfulness of their data processing. This is the case unless courts would be willing to go against the explicit wording of data protection laws and tolerate ‘forced’ consent as a lawful basis in the context of sport.

As the Swiss Federal Council noted in their official communication on the Swiss Sport Act, the questionable validity of athlete consent makes it necessary to create express legal provisions authorising anti-doping organisations to collect and process personal data for anti-doping purposes.[22] Under the GDPR, processing sensitive data relying on an interest of substantial public or public health interest equally requires a legal basis in EU or relevant national law of a member state. Without intervention of national lawmakers to recognise anti-doping as a matter of ‘substantial public interest’ or ‘public health’ interest and identify those entities that are entitled by law to process data together with an appropriate description of the admissible scope and purposes for such processing, sports organisations will continue to rest on shaky ground when it comes to data processing and in particular processing of sensitive data.


Proportionality of treatment

The issue of proportionality is relevant for almost any component of an anti-doping system. It is recognised by CAS panels and courts as an internationally accepted standard,[23] as part of the assessment for deciding whether an encroachment upon individual freedoms is justifiable and justified in any given case. Proportionality is frequently debated in connection with the severity of the disciplinary sanctions set forth in the WADC,[24] but it is also a test that every other aspect of the regulation must stand up to.[25]

An important limb of the proportionality test is the ‘necessity’ of a measure having regard to the rights affected. This aspect was recently addressed by the European Court for Human Rights in the context of French legislation on the whereabouts regime applicable to professional athletes and its compatibility with privacy: “the general‑interest considerations that make them necessary are particularly important and, in the Court’s view, justify the restrictions on the applicants’ rights under Article 8 of the Convention. Reducing or removing the requirements of which the applicants complain would be liable to increase the dangers of doping to their health and that of the entire sporting community, and would run counter to the European and international consensus on the need for unannounced testing.”[26] The ECtHR conducted its assessment with respect to the right to privacy under Article 8 of the European Convention on Human Rights without having regard to specific data protection provisions.

The requirement of proportionality is a pillar of data protection in all its aspects, from the decision to collect the data to its retention. It is enshrined both in the GDPR and in the DPA[27] and is notably also highlighted in the WADA ISPPPI.[28] Concerns about proportionality of the anti-doping system were expressed by EU data protection advisory authorities as early as 2008,[29] and numerous exchanges with WADA have ensued.[30] Various adjustments have been made to the ISPPPI since then with a significant review to adapt the ISPPPI to the GDPR requirements, and a new set of WADA Guidelines adopted in 2018.

Still, the threats on proportionality are bound to be ubiquitous in a context where standardisation is a guiding principle of regulation. For example, the ISPPPI (Annex A) enshrines retention times based on different categories of data (TUE, samples, whereabouts, etc.), but with only two different retention periods overall: 18 months (newly being reconsidered in the draft revised version as 12 months) or 10 years. These have been criticised again in the ongoing stakeholder consultation process as being insufficiently differentiated to be adequate.[31] Indeed, while a column in the Annex formally indicates for each category that the retention time has been chosen based on “necessity” or “proportionality” criteria, Annex A states in limine that the limitation to two retention periods is “for practical reasons”. These justifications cannot be easily reconciled. To properly account for proportionality, anti-doping organisations would need to conduct their own assessment in a more individualised fashion, adapted to their athlete pool and sport. However, as in many other domains of doping control, one wonders how many of them will have the resources, competences and willingness to look beyond WADA prescriptions. Also, since most of the data must be processed through the ADAMS database managed by WADA, anti-doping organisations may have limited effective power over the set-up of the data deletion process.

The proportionality principle is also connected to another fundamental requirement, which is that data processing must remain within the ‘purpose’ defined (‘purpose limitation’ principle). The ISPPPI contains a list of purposes for which anti-doping organisations may process data. However, the ISPPPI gives anti-doping organisations an option to decide to process data for other purposes related to the fight against doping, provided they carry out a documented assessment. The WADA Guidelines propose a template for ‘new purpose assessment’, and indicate that such new purpose could encompass purposes that were not contemplated in the WADC nor perhaps could even be envisaged at the time of collection. The draft revised ISPPPI seems to go even further down this line: “In certain contexts, it may be appropriate or necessary for Anti-Doping Organizations/WADA to Process Personal Information for additional purposes, […] besides those already permitted or required by the Code, the International Standard or expressly required by law, in order to engage effectively in the fight against doping”.[32] It is unclear how this assessment is to be effectively implemented especially for sensitive data, be it under the assumption of a consensual basis or of one based on national law recognising substantial public interests for anti-doping activities. In both cases, if the actual purposes for which the data may be used are in limbo awaiting potential reassessment for ‘new’ purposes, it is questionable whether informed consent or a sufficiently predictable legal basis respectively could even be created.[33]

As the claims for more ‘evidence-based’ approaches and stronger monitoring of anti-doping programs grow louder, more thought could be spent on proportionality and purpose limitation of data processing in anti-doping. Most of the discussion so far has revolved around the intrusiveness of the whereabouts requirements. Whereabouts information, however, is only collected from a limited number of high-profile athletes (i.e., those included within a registered testing pool) and is only a fraction of the data collected as part of anti-doping programs. In the FNASS et al. v. France ruling, the ECtHR essentially relied on the pleas of the anti-doping movement and governments to find that the fight against doping pursues a public health interest and implements it in a proportionate way. In doing so, the ECtHR seems to perpetuate a tendency of CAS and other courts to take policy documents and consensus statements - whether enshrined or not in international law instruments such as the UNESCO Convention against Doping in Sport - as proof of the reality of the claims they contain[34] without requiring much supporting evidence. In many instances, this is technically justified by placing on the contesting party the burden of demonstrating any lack of proportionality.[35] On a higher level, however, it tends to create a presumption that any doubt must benefit the cause of anti-doping.[36] This may lead to self-perpetuating policy biases based on circular reasoning by justifying new measures through previous, unverified claims.

Data protection laws, with their detailed requirements and descriptions of data subject rights, may offer a foundation for a more granular analysis than general human rights provisions under the undetermined heading of ‘privacy’. Opportunities for legal analysis may still be hindered by the fact that an argument related to data protection is hard to build into a defence when athletes – or their counsel – would typically start seriously thinking about these issues only once they become subject to investigations or discipline for a potential breach of the anti-doping rules. CAS panels have been rather generous in admitting evidence unlawfully obtained against individuals charged in disciplinary proceedings.[37] It could thus prove extremely difficult – perhaps even counter-productive as a defence strategy – for an athlete to object to the admissibility of doping control data obtained in breach of data protection laws, in particular when the objection relates to a breach that leaves as much discretion to the panel as proportionality of data collection or retention. CAS panels have repeatedly recognised the fight against doping as an interest that overrides individual freedoms without carrying out much of an individualised balance of the interests at stake. [38]  More promising impetus could come from a random athlete seeking advice from supervisory authorities through the avenues offered by his or her national data protection laws prior to exposure to a positive test or other disciplinary action. Unfortunately, much like consumers, athletes often seem to show little interest in their privacy until they are confronted with some tangible detrimental consequences.


A true plague or a real opportunity?

Some may view recent developments in data protection laws as just another headache for sports governing bodies and deplore the advent of a new hurdle for anti-doping organisations who aspire to take their tasks under the World Anti-Doping Program seriously. Anti-doping organisations advocate that they are carrying out a mission of public interest. As we have seen, this view has been supported by various bodies and courts around the world and is also reflected in the UNESCO Convention against Doping in Sport. However, the GDPR does not regard public interest as an absolute basis for all data processing; in particular, sensitive data cannot be processed on the sole basis of an alleged public interest unless such public interest is substantial or related to public health, and its modalities are set out in national or EU law.

In a time where the credibility of existing structures and procedures within anti-doping authorities is questioned, the challenge arising from data protection standards can also be perceived as an opportunity for the anti-doping system. The ISPPPI and related WADA Guidelines, unfortunately, do not purport to provide solutions to the various crucial challenge set out above but merely invite anti-doping organisations to act in accordance with their applicable data protection laws. They give little guidance on how this is to be achieved in the event that these laws conflict with their duties under the WADC.

Developments in data protection force anti-doping organisations to look at their structures, legal status and their relationships with other organisations within the system. These developments should also have the effect of prompting national legislators to take measures more supportive of anti-doping policies in this domain, and in particular by making sure that sports governing bodies benefit from an appropriate legal basis for processing data, including sensitive data. Given that the very purpose of the WADC is to harmonise the regulation of doping in sport worldwide and that this objective is routinely invoked to justify restrictions on athlete rights, it would seem somewhat counterintuitive not to afford all athletes the same level of protection where their data is concerned. If there is truly a general international consensus on the legitimacy of the fight against doping and this consensus is supported by the State parties to the UNESCO Convention, those States, at a minimum, must be willing to give anti-doping organisations the means to carry out their tasks in a legally sustainable manner, unless and until these States are ready to engage in a fundamental overhaul of the current system.


[1] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. The GDPR started to apply on 25 May 2018. In theory, all entities conducting data processing activities within the scope of the GDPR ought to have secured compliance as of this effective date.

[2] Recital 112 refers to requirements for cross-border data transfers and provides: “Those derogations should in particular apply to data transfers required and necessary […] for public health, for example […] in order to reduce and/or eliminate doping in sport”.

[3] Article 3 para. 2 of the GDPR regarding territorial scope of application.

[4] See Articles 4.4 of the WADC for TUEs, 5.2 for testing, and 7.1 for results management.

[5] See e.g. CAS 2014/A/3598, 3599 & 3618, in which the authority of USADA to initiate proceedings against Johan Bruyneel and others was challenged.

[6] Article 4 (Definitions) of the GDPR. Note that a processor within the meaning of the GDPR may itself choose to delegate part of its activities to a sub-processor, if and to the extent authorised by the controller.

[7] See the guidance and examples given by the UK Information Commissioner’s Office.

[8] See Chapter IV of the GDPR.

[9] Article 28 para. 3 of the GDPR.

[10] Article 6 of the GDPR.

[11] Article 9 of the GDPR.

[12] Article 9 para. 1 of the GDPR; Article 3 lit. c of the DPA.

[13] See e.g. Duval A (2017) Not in My Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-01; Rigozzi A & Robert-Tissot F (2015) "Consent" in Sports Arbitration: Its Multiple Aspects. In: Geisinger & Trabaldo-De Mestral (eds) Sports Arbitration: A Coach for Other Players? ASA Series 41, Jurisnet NY, pp 59-95;

[14] Swiss Supreme Court Decision, 4P.172/2006, 22 March 2007.

[15] ECtHR Decision 22 October 2018, Mutu & Pechstein v. Switzerland, no 40575/10 et 67474/10, para. 114.

[16] Article 4 (Definitions) of the GDPR.

[17] Article 4 para. 5 of the DPA.

[18] Article 7 para. 3 of the GDPR.

[19] Article 7 para. 2 of the GDPR.

[20] Article 7.11 of the WADC.

[21] Though it is often debated to what extent exactly the performance enhancing effect of individual prohibited substances and methods is established. Heuberger J, Cohen A (2018) Review of WADA Prohibited Substances: Limited Evidence for Performance-Enhancing Effects. Sports Med. 2019; 49(4): 525–539.

[22] Message du Conseil fédéral du 11 nov. 2009, FF 09.082, pp 7450/7451 : « Aujourd’hui, les contrôles antidopage relevant du sport de droit privé reposent sur une déclaration de consentement du sportif. Cette déclaration doit être librement consentie. Or, cette liberté n’est pas garantie, dans la mesure où le refus de donner son consentement peut entraîner l’exclusion de la manifestation ou la perte de la licence ».

[23] CAS 2005/C/976 & 986, FIFA & WADA, para. 138 ; CJEU decision Meca-Medina & Majcen v. Commission (C-519/04).

[24] A recent example: CAS 2018/A/5546, Guerrero v. FIFA, CAS 2018/A/5571, WADA v. FIFA & Guerrero, paras 85 et seq.; Legal Opinion by Jean-Paul Costa on the 2015 revision of the WADC.

[25] Viret (2016), Evidence in Anti-Doping at the Intersection of Science & Law, T.M.C Asser, p. 133; Since its 2015 version, the WADC has included an explicit reference to proportionality as one of the key considerations underlying its drafting. See introductory section “Purpose, Scope and Organization of the World Anti-Doping Program and the Code”.

[26]ECtHR, FNASS et al. v. France (48151/11 and 77769/13), para. 191.

[27] Article 5(1)(c) of the GDPR, whereas the data must be “adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’)”.

[28] Section 5.0 ISPPI “Processing Relevant and Proportionate Personal Information”.

[29] Art. 29 Working Party, now replaced by the European Data Protection Board under the GDPR.

[30] See collection of legal documents on WADA website.

[31] Comment to revised ISPPPI by NADA Germany, ad Annex Retention Times.

[32] Comment ad Article 5.3(d) draft ISPPPI.

[33] The EU Commission warns that extension of purpose is not possible where processing was based on consent or a provision of law without renewing the consent or creating a new legal basis.

[34] See e.g. preamble of the UNESCO Convention “Concerned by the use of doping by athletes in sport and the consequences thereof for their health, the principle of fair play, the elimination of cheating and the future of sport”.

[35] See already in CJEU decision Meca-Medina & Majcen v. Commission (C-519/04) regarding the proportionality of threshold levels.

[36] Maisonneuve Mathieu, La CEDH et les obligations de localisation des sportifs : le doute profite à la conventionnalité de la lutte contre le dopage, note sous CEDH, 5e sect., 18 January 2018, Fédération nationale des associations et des syndicats sportifs (FNASS) et autres c. France, req. Nos 48151/11 et 77769/13. Journal d’actualité des droits européenes, Centre de recherches et de documentation européennes et internationales, 2018.

[37] CAS 2016/A/4487, IAAF v. Melnikov, para. 108.

[38] CAS 2009/A/1879, Valverde v. CONI, para. 139.

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