On the 24th June 2014 the Spanish Audiencia Nacional issued its ruling on a hotly debated sports law topic: The
whereabouts requirements imposed to athletes in the fight against doping. This
blog aims to go beyond the existing commentaries (here and here) of the case, by putting it in the wider
context of a discussion on the legality of the whereabouts requirements.
I.
The Facts
In 2013, the Spanish High Council for Sports (Consejo Superior de Deportes) adopted resolution 1648/2013 providing two forms (Annex I and Annex II) for
athletes to complete in order to fulfil their whereabouts requirements, in the
view of implementing the existing Spanish laws against doping.[1]
The key legal provisions underlying this resolution read as follows
(translation ASSER[2]):
Article 5 of Ley Orgánica 7/2006, de 21 de noviembre,
de protección de la salud y de lucha contra el dopaje en el deporte.
3. In the view of conducting the controls referred to in the first
paragraph with the greatest efficiency possible, the athletes, the teams,
trainers (coaches) and managers should facilitate, in accordance with the
established regulations, the gathering of the data necessary for the
localisation of the habitual whereabouts of the athletes, in a way that permits
to carry out the doping tests.
Article 43 of 641/2009 Real Decreto
641/2009, de 17 de abril, por el que se regulan los procesos de control de
dopaje y los laboratorios de análisis autorizados, y por el que se establecen
medidas complementarias de prevención del dopaje y de protección de la salud en
el deporte.
1. The athletes with a licence enabling them to participate in official
competition on national level should, in accordance with the following paragraphs,
facilitate the transmission of the data that permit the localisation of the
habitual whereabouts of the athletes through completion of the specific form established
by Resolution of el Presidente del Consejo Superior de Deportes.
3. The athletes subjected to the Individualized Plan have a specific duty
to complete the form established by Resolution of el Presidente del Consejo
Superior de Deportes.
Article 45 of 641/2009 Real Decreto
1. The athletes subjected to the Individualized Plan have to provide
trimestral information on their habitual whereabouts, to this end they should complete the form approved by
Resolution of el Presidente del Consejo Superior de Deportes, including in any
case the following minimum information:
a) A postal address where the athlete can receive correspondence for
notification purposes related to doping tests.
b) A clause signed by the athlete, by which he agrees to communicate the
data provided to other anti-doping organizations, pursuant to article 36 de la
Ley Orgánica 7/2006.
c) For each trimester, in case of an absence longer than 3 days from the
habitual residence, the athlete must provide the full address of his residence
or whereabouts.
d) The details, including the name and address, of the training
locations of the athlete, as well as his training calendar for the trimester,
and the minimum schedule of availability necessary for conducting the doping
controls.
e) The trimestral competition calendar, specifying the locations, dates
and types of competitions in which he is due to compete.
Spanish athletes are thus divided into two categories: those subjected
to an individualized plan under article 45 of the Real decreto and those not
subjected to an individualized plan. Accordingly, the Council’s resolution
provides two types of obligatory forms, one for athletes not included in the
individualized plan covering only the usual place(s) of training (Annex I) and
one for athletes included in the individualized plan covering the usual
place(s) of training but also the unusual places of training (Annex II). Those
forms must be completed and communicated to the national anti-doping agency
before the beginning of each trimester.
It is the legality of this resolution, which was challenged by the
Spanish Association of Professional Cyclists in front of the Audiencia Nacional , that lead to the
ruling adopted 24 June 2014.
II.
The Ruling
As a preamble, the judges recognized that “the efficiency of the fight against doping would be seriously impeded
if no adequate mechanism existed to monitor effectively the whereabouts
obligation of the athletes”. However, the Court also considered that “both
legal texts refer to the habitual localization of the athlete in order to enable
the testing”. Annex I does not go
beyond what is necessary to assert this usual localization. Annex II, reserved
for athletes subjected to an individualized plan, however, “besides indicating the location of the
habitual training whereabouts, also include the request to provide information
that should facilitate the ‘occasional localization’… which means that the
athletes subject to this annex are (also) subject to a permanent localization
obligation”.
The judges considered that this “permanent
localization duty” is “submitting the
athlete to a permanent control during all the days and hours of the year,
thereby exceeding what can be considered “habitual or frequent”. The measure is
disproportionate and contrary to the right to privacy, and is not mandated by
law, even when considering the special duties that an athlete bears as holder of
a sporting licence. It is especially so when subjected to a differentiated
plan, since it could be analogized to a measure of penal character requiring a
permanent localization that can only be imposed as a consequence of a criminal
offence. Therefore, such a permanent localization duty entails an interference
that is contrary to the essence of the right to privacy”.
Thus, the Court considered that the resolution was contrary to the right
to privacy and was going beyond the wording enshrined in article 5.3 of the Ley
Orgánica. Hence, it is to be considered null and void and a new resolution
needs to be devised.
III.
Whereabouts Requirements in the World
Anti-Doping Code
So, is this just a Spanish case, relevant only to the national context,
or does it reveal a wider problem with the whereabouts requirements imposed by
the World anti-doping Code?
Surely, this is first and foremost a national case. However, the laws at
stake were all adopted to transpose the World Anti-Doping Code at the national
level and to conform to the UNESCO Convention on Doping.[3] Consequently,
grasping the scope of the requirements imposed in this regard by the WADA Code
is crucial to assessing the potential wider impact of this decision.
Article 2.4 of the WADA Code 2009 foresees that the following constitutes an anti-doping rule violation:
2.4 Violation of applicable requirements
regarding Athlete availability for Out-of-Competition Testing, including
failure to file required whereabouts information and missed tests which are
declared based on rules which comply with the International Standard for
Testing. Any combination of three missed tests and/or filing failures within an
eighteen-month period as determined by Anti-Doping Organizations with
jurisdiction over the Athlete shall constitute an anti-doping rule violation.
To this end article
5.1.1 of the WADA Code 2009 provides that each Anti-Doping Organization shall:
5.1.1 Plan and conduct an effective number of In-
Competition and Out-of-Competition tests on Athletes over whom they have
jurisdiction, including but not limited to Athletes in their respective
Registered Testing Pools. Each International Federation shall establish a
Registered Testing Pool for International-Level Athletes in its sport, and each
National Anti- Doping Organization shall establish a national Registered
Testing Pool for Athletes who are present in that National Anti-Doping
Organization’s country or who are nationals, residents, license-holders or
members of sport organizations of that country. In accordance with Article
14.3, any Athlete included in a Registered Testing Pool shall be subject to the
whereabouts requirements set out in the International Standard for Testing.
Finally article 14.3.
of the WADA Code 2009 indicates that:
14.3 Athlete Whereabouts Information
As further provided in the International Standard for
Testing, Athletes who have been identified by their International Federation or
National Anti-Doping Organization for inclusion in a Registered Testing Pool
shall provide accurate, current location information. The International
Federations and National Anti- Doping Organizations shall coordinate the
identification of Athletes and the collecting of current location information
and shall submit these to WADA. This information
will be accessible, through ADAMS where reasonably feasible, to other
Anti-Doping Organizations having jurisdiction to test the Athlete as provided in
Article 15. This information shall be maintained in strict confidence at all
times; shall be used exclusively for purposes of planning, coordinating or
conducting Testing; and shall be destroyed after it is no longer relevant for
these purposes.
These whereabouts requirements are further fleshed
out in the International Standard for Testing
2012. Article
11.3 of the Standard deals with the Whereabouts Filing Requirements
and foresees that:
11.3.1 On a date specified by the Responsible ADO that
is prior to the first day of each quarter (i.e. 1 January, 1 April, 1 July and
1 October, respectively), an Athlete in
a Registered Testing Pool must file
a Whereabouts Filing with his/her IF (if the Athlete has been included in its international Registered Testing Pool) or his/her NADO (if the Athlete has been included in its national Registered Testing Pool) that
contains at least the following information:
a. complete mailing address where correspondence may
be sent to the Athlete for
formal notice purposes. Any notice or other item mailed to that address will be
deemed to have been received by the Athlete
five working days after it was deposited in the mail;
[…]
d. for each day during the following quarter, the full
address of the place
where the Athlete
will be residing (e.g. home, temporary lodgings, hotel, etc);
e. for each day during the following quarter, the name
and address of each location where the Athlete
will train, work or conduct any other regular
activity (e.g. school), as
well as the usual time-frames for such regular activities; and
f. the Athlete’s
competition schedule for the following quarter, including the name and
address of each location where the Athlete
is scheduled to compete during the quarter and the date(s) on which
he/she is scheduled to compete at such location(s).
11.3.2 The Whereabouts Filing must also include, for
each day during the following quarter, one specific 60-minute time slot between
6 a.m. and 11 p.m. each day where the Athlete
will be available and accessible for Testing at a specific location.
The question whether a specific type of
information is to be included in the Whereabouts
Filing is key to the Spanish ruling. The WADA Standard mentions only the “the name and address of each location where
the Athlete will train, work or
conduct any other regular activity
(e.g. school), as well as the usual time-frames for such regular activities”. This is further broken down in the comment
to article 11.3.1(e) of the Standard, where it is specified that “[T]his
requirement applies only to regular activities, i.e. activities that are part
of the Athlete’s regular routine”. Furthermore, the WADA Guidelines
for implementing an effective athlete whereabouts program provide
at article 3.5 (p.19) that “an
activity is only ‘regular’ if it is done
as part of a standard schedule/in accordance with a routine pattern or practice”.
One can deduce from the above review of the
WADA provisions that the Spanish system was even going beyond what WADA
requires in terms of information to be communicated in the framework of the whereabouts
requirements. Accordingly, the Court considered that the incriminated Annex II goes
beyond what is necessary to fulfil the objective of the anti-doping fight, if
the global anti-doping watchdog is not confident that such information is
needed. It would be a stretch, therefore, to interpret this judgment as an
immediate threat for the WADA Code. Its wording seems rather to be in line with
the Code’s own provisions.
IV.
The Controversy Over Whereabouts Requirements
Anyhow, this case fuels the on-going controversy over the conciliation
of whereabouts requirements with the right to privacy of athletes. The Court’s
view that submitting an athlete to a permanent control of his whereabouts is
contrary to her right to privacy might speak against a requirement to provide “for each day during the following quarter, the full address of the place
where the Athlete will be
residing (e.g. home, temporary lodgings, hotel, etc)” or “for each day during the following quarter, the name and address of each
location where the Athlete will
train, work or conduct any other regular
activity (e.g. school)”. The
proportionality of such, little less intruding, requirements could be put to
the test as well. In fact, in its second opinion on the WADA Code, Article 29 Data Protection working
party of the EU, specified that “the
information to be provided concerning the whereabouts and the time slots for
controls should be clearly determined by taking into account the requirements
of the principles of necessity and proportionality with respect to the purposes
of out of competition testing, and avoiding the collection of information that
might lead to undue interference in athletes’ private lives or reveal sensitive
data on athletes and/or third parties”. In this regard, it “considers it to be proportionate to require
personal data regards to the specific 60-minute time slot and to require
filling in the name and address of each location where the athlete will train,
work or conduct any other regular activity”. But, it called onto WADA to “reconsider requesting that the residence on
each day of the following quarter (even temporary lodging) should be filled in
(article 11.3.1 under d. of the International Standard for Testing) as this
would appear to be questionable”.[4]
This controversy also has a philosophical flavor
as scores of legal and social science scholars have been discussing the issue
over the years. Some laments the “lack of concern given to athletes’ privacy”[5],
the fact that “athletes are now just as likely to be punished for taking
prohibited substances as they are for being bad at paperwork”[6],
or “a State of Exception”[7]
for elite athletes. Leading them to wonder: “[W]ith respect to the
‘whereabouts’ policy we must ask whether human rights are genuinely violated?”[8]
Undeniably, WADA’s Athlete Committee is
supporting staunchly the whereabouts requirements[9],
but its members do not represent in any democratic, nor legitimate, way the
affected athlete population. However, in the face of the impossible task of
enforcing a harmonized global surveillance of the implementation of the whereabouts
requirements[10], recent
social-science surveys have shown that athletes doubt the necessity,
proportionality and efficacy of such controls.[11]
The case at hand is a great opportunity to
reflect on the foucauldian turn of
the anti-doping fight. In practice it is looking more and more like a panopticon, devised to optimize the
surveillance of athletes, while irremediably failing to do so.[12]
In turn, each new failure triggers calls for a reinforcement of the
surveillance’s means and scope, thus, overlooking the deeper socio-economic
roots of doping. In this context, the judgement of the Spanish High Court is
reaffirming a healthy, and reasonable, limit to a potential disciplinary
overreach. An overreach, which, in many eyes, raises a more fundamental
question: “is it worth the cost?”[13]