Mohamed Dahmane is a professional football player of French-Algerian origin, who has played for a variety of European clubs, including French club US Mauberge, Belgian club RAEC Mons and Turkish club Bucaspor. However, he will mostly be remembered as the player whose legal dispute with his former club (Belgian club KRC Genk) revived the debate on football players’ labour rights.  

Journalists wasted no time in comparing it to the Bosman case.[1] Fair enough, Dahmane and Bosman do show some striking similarities: the two cases concerned players employed by mediocre Belgian football clubs claiming their right to be treated as normal workers. Furthermore, in both cases the respective Courts met (to a large extend) the players’ demands. The Bosman case not only changed labour conditions for all footballers, it shook the whole transfer system. In Dahmane, the case is essentially about whether it is justifiable to have a special law that obliges professional football players who unilaterally break their players’ contract to compensate their club for up to 36 months of salary. After all, “normal” workers are only obliged to pay a 12 months of salary compensation in an identical situation. Whether the Dahmane case will have the same weight as Bosman depends on the effects of the judgment on footballers in Belgium, but also on the European football sector in general. Therefore, a close look at the ruling is needed to understand its potential consequences.

Dahmane signed a four-year contract with KRC Genk on 1 July 2007, he then unilaterally terminated the contract in January 2008 following a row with his coach. Due to the contract termination, KRC Genk demanded a compensation amounting to EUR 878.888,88. The demand was based on Articles 4 § 4 and 5 § 2 of the Law for Professional Athletes and the Royal Decree of 13 July 2004. Indeed, according to the Royal Decree, the compensation had to be equal to 36 months of salary. Dahmane disagreed with KRC Genk’s demands and argued that the compensation should be calculated in accordance with Article 40 § 1 of the general Labour Agreements Law. Pursuant to this Article the severance pay can only amount to a maximum of 12 months of salary.

In a judgment of 25 May 2009, the Labour Court (Court of first instance) concurred with the demands of KRC Genk and ordered Dahmane to compensate KRC Genk for EUR 878.888,88.

Dahmane placed an appeal with The Court of Labour arguing that Article 4 § 4 of the Law for Professional Athletes and the Royal Decree breached Articles 10 and 11 of the Belgian Constitution on equal treatment and non-discrimination.[2] KRC Genk, for its part, argued that the difference between labour agreements of professional footballers on the one hand and “normal” labour agreements on the other is based on the ‘specific character of labour agreements of professional footballers and the specific character of sport in general’. Thus, the ‘specificity of sport’ would imply a special status for sport, whereby ‘normal’ law (i.e. the general Labour Agreements Law) cannot be applied unabridged. KRC Genk highlighted that to achieve the objectives inherent to football, which include avoiding competition distortions and the preservation of the stability of participating sport clubs, certain specific measures, such as the Royal Decree of 2004, can be taken in order to safeguard the legal certainty of labour relationships in the sport sector.[3]

The Court of Labour dismissed the arguments raised by KRC Genk, and held that the Royal Decree applies to all professional sports, not only to football, thereby denying validity to RKC Genk’s claims on the specificity of football.[4]

The Court agreed with KRC Genk that sport exhibits certain characteristics that can deviate from other labour relationships between employer and employee. However, the Royal Decree in question did not mention the specificity of sport in its text, nor does it provide any objective justifications as to why separate rules regarding compensation after a unilateral termination of a labour contract is necessary for the sport sector. Furthermore, the pursuit of financial profits, and the importance of preserving a fair competition have to be taken into account. Those economic objectives are not specific to the sport sector. Therefore, the Court saw no valid reason justifying a separate Royal Decree, when sport’s economic dimension can be equally covered by existing legislation. In other words, the same laws should be used to achieve the same objectives.[5]

As regards KRC Genk’s view that some rules preventing richer clubs from buying all the good players from smaller clubs, thereby distorting competition, are justifiable, the Court found that to be incorrect. Even though it is true that football’s transfer system is different from “normal” movement of workers, a distinction needs to be made between buying and selling of players on the one hand, and the unilateral termination of a player’s contract on the other hand. Here again the Court found the breach of the Constitutional Articles on equal treatment and non-discrimination based on the specificity of the football transfer system was not objectively justified in the Royal Decree.

The Court reminded the parties that the transfer system, which only allows two periods a year for clubs to buy and sell players, would limit the possibility for professional footballers to change clubs. Moreover, it highlighted that compensation equal to 12 months of salary comprises two transfer periods, and should therefore not be seen as unreasonable. Lastly, the Court took into account that the average career of a professional sportsman is relatively short (12 years according to KRC Genk and six to eight years according to Dahmane). A compensation amounting to 36 months of salary would, for many professional players, amount to 1/3 of the player’s revenue during his career and should therefore be deemed unjustifiable.[6]

Hence, the Court considered that a Royal Decree imposing a compensation of 36 months of salary on a player breaching his contract is disproportionate. Furthermore, the Court found the Royal Decree unjustifiable under the Constitutional principle of equal treatment and non-discrimination.

Dahmane revives a debate that has occupied academics in the fields of sports law, labour law and other fields of law for many decades. Is sport special and do its specificities oblige the European and national legislators to make laws that answer the specificities of sport? Should professional athletes be treated different from normal workers because sport is “special”? After Bosman, no transfer fees needed to be paid for players whose contract had ended and no limitations on the number of EU nationals were allowed to be imposed by the football clubs. In other words, the European Court of Justice (ECJ) found professional footballers to be very much like normal workers. Similarly, the Dahmane case lead the Belgian Court of Labour to deny any difference between professional athletes and normal workers regarding compensation after a unilateral termination of the labour contract. Even though Dahmane, as appellant, had asked the Court to raise a preliminary question to the ECJ on the compatibility of the law with the free movement of workers[7], the Court decided the case under Belgian law only.[8] It is therefore highly unlikely that Dahmane will have the same transnational effect as Bosman and mass unilateral contract terminations by professional athletes across the EU are not to be expected. 

Dahmane could set a precedent and encourage professional players in Belgium to simply break their contract, move to another club and pay compensation equal to 12 months of salary. This would be the worst-case scenario for Belgian clubs, since a compensation equal to 12 months of salary will nearly always be inferior to a transfer fee. On the other hand, mass unilateral contract terminations by footballers in Belgium would vindicate the need for specific regulation for football clubs.

In many ways the Belgian Court of Labour has “passed the ball” back to the Belgian legislator. Should the Belgian legislator feel that professional athletes, or footballers for that matter, have to be treated differently compared to normal workers then it could always decide to adopt specific laws or Royal Decrees for professional athletes. However, Dahmane will serve as a warning that these separate laws or Royal Decrees will need proper objective justifications as to why professional athletes are to be treated differently.

[1] See for example: Zaak-Dahmane krijgt allure van zaak-Bosman

[2] Arrest A.R. 2009/AH/199 (6 may 2014) Sub II, §1

[3] Ibid, Sub III §6

[4] Ibid, §7

[5] Ibid, §6

[6] Ibid, §7

[7] Ibid, Sub II, §1

[8] Ibid, Sub III §12

On the 24^th 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]

[1] Especially the Ley Orgánica 7/2006, de 21 de noviembre, de protección de la salud y de lucha contra el dopaje en el deporte and the Real Decreto 641/2009, de 17 de abril, por el que se regulan los procesos de control de dopaje

[2] I thank Oskar Van Maren for his translating skills.

[3] Here one should look specifically at the preamble of the Ley Organica 7/2006 and of Real Decreto 641/2009, 1462/2009 and 1744/2011

[4] This provision is still included in the new 2015 version of the International Standard for testing and investigations at I.3.1.(d), p.88

[5] Sarah Teetzel (2007) Respecting privacy in detecting illegitimate enhancements in athletes, Sport, Ethics and Philosophy, 1:2, 159-170

[6] Niall Trainor, The 2009 WADA Code : A more proportionate deal for athletes ?, Entertainment and Sports law journal, June 2010, §65

[7] Lev Kreft (2009) The Elite Athlete – In a State of Exception?, Sport, Ethics and Philosophy, 3:1, 3-18

[8] Lev Kreft (2009) The Elite Athlete – In a State of Exception?, Sport, Ethics and Philosophy, 3:1, 3-18 p.12

[9] One example amongst many WADA Athlete Committee Meeting April 3–4, 2008, p.2

[10] See the Report to WADA Executive Committee on Lack of effectiveness of Testing Programs, 18 may 2012; Dag Vidar Hanstad , Eivind Å. Skille & Sigmund Loland (2010) Harmonization of anti-doping work: myth or reality?, Sport in Society: Cultures, Commerce, Media, Politics, 13:3, 418-430; Dikic N, Samardzic Markovic S, Mc Namee M, ‘On the efficacy of WADA’s Whereabouts policy: between filing failures and missed tests’ Deutsche Zeitschrift für Sportmedizin ‘Jahrgang 62, nr. 10 (2011), 324-328

[11] Dag Vidar Hanstad , Eivind Å. Skille & Sigmund Loland (2010) Harmonization of anti-doping work: myth or reality?, Sport in Society: Cultures, Commerce, Media, Politics, 13:3, 418-430, p.420; Diane Valkenburga, Olivier de Honb, Ivo van Hilvoordea, Doping control, providing whereabouts and the importance of privacy for elite athletes’, International Journal of Drug Policy xxx (2014) xxx–xxx

[12] This logic of surveillance is highlighted by  I. Waddington (2010), Surveillance and control in sport: A sociologist looks at the WADA whereabouts system. International Journal of Sport Policy and Politics 2: 255–74. And Hanstad, D.V., and S. Loland. ‘Elite Level Athletes’ Duty to Provide Information on their Whereabouts: Justifiable Anti-doping Work or an Indefensible Surveillance Regime?’ European Journal for Sport Sciences 9 (2009): 3–10.

[13] I. Waddington (2010), Surveillance and control in sport: A sociologist looks at the WADA whereabouts system. International Journal of Sport Policy and Politics 2: 255–74