Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

The surge of e-sports has stimulated a lively discussion on the essential characteristics of sport and whether e-sports, in general, can be considered a sport. However, one should not overlook the fact that e-sports encompass a broad range of video games that fundamentally differ from one another. Thus, as one commentator recently underlined, “the position of video games and the e-sport competitions based on them should be analysed on a case-by-case basis.”[1] In this spirit, this blog aims to provide a concise analysis of one of these e-sports, League of Legends (LoL), and one of its main competitions, the League of Legends European Championship (LEC), to assess whether it could be considered a sport in the sense of EU law. The LEC offers a fascinating opportunity to examine this issue especially since the previous European League of Legends Championship Series (EU LCS) was rebranded and restructured this year into the LEC.

2.     What is League of Legends and the LEC?

At the time of writing, LoL released nearly a decade ago by Riot Games (a game developer based in the USA) and rapidly became one of the most played video games in the world due in part to its free to play business model. This means that anyone can download and play LoL on their computer without ever having to pay anything. In-game microtransactions exist but do not provide any competitive advantage. The game itself involves two teams of five players who each control a ‘champion’, which are characters in the game that each possess unique abilities. A team only wins when it has destroyed the enemy base (‘nexus’). The game is not only a popular video game, but it is a popular e-sport. The most recent world championships finals attracted 99.6 million unique viewers. While these numbers are greatly due to its popularity in China and South Korea, there is also a sizeable European viewership of LoL. For example, the LEC regular season matches have reached a record-breaking 355,000 concurrent viewers in its 2019 spring competition.

The LEC is LoL’s highest level of European competition and is owned and organised by Riot Games who establishes and enforces the rules which apply to the teams participating in the LEC. Consequently, Riot Games is truly at the apex of professional LoL in Europe by setting both the in-game parameters (the rules of the game) and the regulations that govern its competitive play. As explained earlier, Riot Games restructured and rebranded its previous European competition, EU LCS, into the LEC. While previously the EU LCS was characterised by a pyramid structure with a promotion and relegation system familiar to the European sports world, the LEC introduced a franchise model to follow its sibling competition in North America, the League Championship Series (LCS). The LEC itself is a limited liability company registered in the Republic of Ireland as League of Legends European Championship Limited.[2] The LEC buy-in fee for teams already in the EU LCS was reportedly set at 8 million euros and 10.5 million euros for those outside the EU LCS. Additionally, big brands such as KIA, Shell, Foot Locker and Red Bull sponsor the LEC and are featured during the broadcast. Besides being produced and diffused weekly by the official Riot Games English broadcast team in a professional studio in Berlin on Twitch (an online video game livestreaming service) and YouTube, the LEC partners with other official broadcasters who provide coverage of the matches in other languages (French, Spanish, Polish, German, Italian). Nevertheless, before examining the LEC’s position under EU law, a review of the broader arguments on the fundamental traits of sport will contextualise the Court of Justice of the European Union’s (CJEU) interpretation of the concept of sport.

3.     Is LoL played in the LEC a sport competition?

The academic discourse on the definition of sport has provided a plethora of elements and conditions for an aspiring sport to meet in order to be considered a ‘real’ sport. Needless to say, this blog will not be able to address all of them. However, the characteristics identified by Suits and elaborated by Jenny et al. and Abanazir are a good starting point for this brief review.[3] Suits explains that sports are in essence games that require skill, where the skill requires physicality, that the game have a wide following, and that this following have a certain level of stability. Abanazir delved into the concept of stability in the e-sports context by explaining institutionalisation’s central role in achieving permanence.

On the first requirement, there is very little room to argue that professional LoL does not require a great amount of skill. Suits explains that games of skill provide ‘unnecessary obstacles’ (in relation to daily life) “to realize capacities not otherwise realizable” that do not rely on pure chance.[4] Playing LoL is not in any way a necessary part of human life, yet many players practicing LoL play to refine and improve their mechanical skill (the physical element of the game, e.g. muscle memory and reflexes). Chance sometimes plays a role in LoL, but it is rarely a decisive factor in determining the outcome of a competitive match. Generally, Riot Games has taken steps over the years to limit the elements of pure luck in its game.

The role of physical motor skills in e-sports has been explained in detail by van Hilvoorde and Pot, and this blog will not dive into the arguments on whether actions taken in a video game can be considered taking place in the ‘real’ world.[5] Assuming that it does, the skill required in LoL is intrinsically connected to its physicality. LoL is played on a computer with a mouse and a keyboard. High level play requires precise movement of the arm, wrist and/or hand to most effectively control one’s character with the mouse. Additionally, the clicks and inputs registered by one’s fingers on the mouse and keyboard must be timed precisely and with enough practice these movements become muscle memory. The classic example of a game that does not require this sort of physicality is chess because the manner in which one moves a chess piece from a to b does not affect the result of the game. On the other hand, LoL demands precise and timed movements of the player’s arms, wrists, and/or fingers to be played optimally. One can be a LoL strategic genius but without a sufficient level of mechanical skill, it is impossible to become a professional LoL player.

Next, a large following is probably the easiest criteria for LoL and the LEC to fulfil. Between the large viewership that watch the LoL events online and the thousands of spectators that come to watch the championships live, there is very little doubt that LoL and the LEC have a wide following at the moment. However, this point leads into the next element which arguably may be the hardest criteria for it to satisfy in the long term: stability.

Video games and consequently, e-sports, generally reach a point where they have achieved their max popularity and eventually begin to lose players and viewers. Often times, this is the result of newly released video games pushing older and ‘outdated’ games out of the spotlight. LoL has remained at the forefront of e-sports for nearly a decade and there is little suggestion that this will change in the near future. Part of this is Riot Games’ continued support of LoL by regularly updating the game. Updates are released nearly every other week and can range from graphical improvements, balancing the game to ensure the viability of new strategies, the introduction of new champions (currently 143 champions) and tweaks that improve the way the game runs on the computer. Abanazir describes that changes such as these “present a double-edged sword” because while they keep the game fresh for players, they can result in drastic changes to the best strategies (meta) to win the game.[6] Thus, professional teams and players must continually adapt their play to conform to the meta. Nevertheless, updates have never fundamentally changed the goal and overall ‘rules’ of the game. Professional LoL is always two teams of five players, each controlling one champion, aiming to destroy the enemy nexus.

From an outsider’s point of view, it may seem that the constant flux of the meta would truly damage any of LoL’s claim to stability. However, in this context, it is imperative to highlight the institutionalisation of the LEC. Institutionalisation describes the appearance of “standardisation of rules, the formalisation of learning of the games, the development of expertise and finally the emergence of coaches, trainers, officials and governing bodies.”[7] The very fact that the meta often changes have pushed professional teams to hire analysts that review the team’s play and are constantly searching for new and creative ways to play LoL. Additionally, all professional teams have at least one coach who not only define the team’s strategy before each game, but also ensure that players observe strict practice schedules. During LEC matches, referees (Riot Games employees) are always present in order to ensure that the LEC rules are observed, which greatly lends to the idea of a ‘standardisation’ of the rules.[8] In fact, Riot Games directly state that the creation of the LEC Rulebook is to help “unify and standardize the rules used in competitive play.”[9] From this outline, there are many indications that the LEC and LoL have many of the characteristics of a sport and currently have achieved a certain amount of stability and institutionalisation. The true test will be whether these structures continue to last as they have been developed and implemented over the past eight years.

4.     A Sport under EU Law?

Recently, the Court of Justice of the European Union (CJEU) ruled on whether the English Bridge Union could benefit from a sports exemption under the VAT Directive and in doing so examined the concept of sport under that Directive.[10] Furthermore, in this case, Advocate General (AG) Szpunar provided an enlightening opinion to the Court examining the concept of sport in the context of the VAT exemption.[11] Both provide a good opportunity to infer how the Court would perhaps go about determining whether the LEC is a sport competition under EU law. This being said, the sport exception in the current VAT Directive would not apply to the LEC since Article 132 (1) (m) applies only to services provided by non-profit organisations. Nonetheless, should League of Legends European Championship Limited eventually restructure into a non-profit, it would not be far-fetched to imagine a situation in which it would seek to have VAT reimbursed from authorities under a sports exception in the future. After all, Riot Games has repeatedly stated that it does not make a profit on its e-sport activities.[12]

The AG’s opinion began by explaining that the concept of sport in the exemption should be “interpreted in a narrow manner, while bearing in mind the purpose and objective of the exemption.”[13] From this it is clear that the analysis of the concept of sport differs depending on the applicable provision, which could mean that the LEC could be considered a sport competition under one provision and a purely economic activity in another context. The AG goes on to identifying elements which preclude an activity from being considered a sport and states that “where a physical element is not necessary, sport is defined by competition and the fact that equipment is provided by not just one supplier -  which excludes activities without a broad basis in civil society, such as commercial products in the market place, designed by firms for pure consumption (for instance video games).”[14] If this interpretation of the concept of sport had been endorsed by the CJEU, it would have constituted a tremendous obstacle for the LEC. Indeed, if the ‘equipment’ also encompasses the game itself, it is impossible to argue that Riot Games does not hold a monopoly over the supply of LoL. Moreover, Riot Games has made and continues to support LoL in order to make money. In analysing this opinion, Abanazir explains the core issue well: “e-sport competitions based on video games created for purely consumption purposes and organised by persons aimed to profit from these activities may find themselves out of the scope as they are perceived to be devoid of social function.”[15] Indeed, it can seem difficult for the LEC and LoL to argue that it has a deeper ‘social function’ but perhaps this requirement might not be completely insurmountable. An argument could be made that the e-sports aspect of LoL is not only a commercial product made for pure consumption especially because LoL is a free to play game, and Riot Games does not seem to be making any profit in its e-sport related activities. Riot Games and the LEC have also taken steps to enhance the social function of LoL by investing in regional leagues to develop local talent.

In its ruling on the Bridge case, the CJEU sidelined the AG’s approach and decided to focus on a physicality requirement. The Court, in examining the specific VAT provision, found that sport must be “characterised by a not negligible physical element,” and the fact that an activity has elements of competition, professionality and organisation were not deemed sufficient to argue that the activity is a sport for the VAT exemption.[16] Physicality was the central criteria in the CJEU’s interpretation of the concept of sport, but in doing so, it did not give any further clarity as to the threshold of physicality required for an activity to benefit from the VAT sport exemption. It has already been contended above that LoL does have a clear physical element which is intrinsically connected to the game’s skill, yet the question remains whether the physicality would be considered more than negligible by the CJEU.

In summary, if LoL and the LEC were to be examined under the VAT Directive sport exemption, it would be confronted with several challenges. The approach endorsed in the AG’s opinion would have been the most problematic since LoL is mainly a commercial product designed to attract consumers and ultimately profit a private company. However, the CJEU chose to focus its interpretation of the concept of sport on a physicality criterion. This decision may give the LEC a wide enough window to argue that the fine motor skills involved in LoL are enough to fulfil this condition.

5.     Conclusion

In its current form, the LEC would not be able to benefit from the sport exemption in the VAT Directive, but this is just one provision of EU law, and there could be other opportunities where it could attempt to claim to be a sport. In the meantime, this gives an opportunity to Riot Games to continue to develop and emphasise the social function of its e-sports competitions, which might entail building a not-for-profit entity to run the competition and to strengthen the redistribution of economic gains to the grassroots. In any case, LoL and the LEC share many characteristics with established sports, but it remains to be seen if this will be enough to boost its recognition as a ‘real’ sport in law and society.

[1] Cem Abanazir, ‘E-sport and the EU: the view from the English Bridge Union’ (2019) International Sports Law Journal 102.

[2] ‘LEC Rules’ (LoLEsports).

[3] William Morgan, Ethics in Sport (3rd edn, Human Kinetics 2018) ch 1: Elements of Sport by Bernard Suits; Seth Jenny et al., ‘Virtual(ly) Athletes: Where eSports fit within the definition of “Sport”’(2016) Quest 1; Cem Abanazir, ‘Institutionalisation in E-Sports’ (2019) Sport, Ethics and Philosophy 117.

[4] Morgan (n 3) ch 1.

[5] Ivo van Hilvoorde and Niek Pot, ‘Embodiment and fundamental motor skills in eSports’ (2016) Sports, Ethics and Philosophy 14.

[6] Abanazir (n 3).

[7] Jenny et al. (n 3); Abanazir (n 3).

[8] See LEC Rulebook Art. 8.15.

[9] LEC Rules (n 2).

[10] Case C-90/16 The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs ECLI:EU:C:2017:814.

[11] Case C-90/16 The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs ECLI:EU:C:2017:814, Opinion of AG Szpunar.

[12] Steven Asarch, ‘“League of Legends” cuts esports budget, can Riot Games bounce back?’ (Newsweek, 28 August 2018); Derrick Asiedu head of Global Events at Riot Games confirmed this in a Reddit post: “We’re a long way from breaking even (revenue minus cost equalling 0)”.

[13] English Bridge Union Opinion (n 11) para 21.

[14] English Bridge Union Opinion (n 11) para 38.

[15] Abanazir (n 1).

[16] English Bridge Union (n 10) para 19, 25.

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, 5^e 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.