Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.
I.
Introduction
The COVID-19 pandemic has shaken the manner
in which we approach human interactions that suppose close and prolonged physical
contact. Across the world, authorities are having to design ways to resume
essential activities without jeopardising participants’ health, all the while
guaranteeing that other fundamental rights are paid due respect. The fight
against doping is no exception. Anti-doping organizations – whether public or
private – have to be held to the same standards, including respect for physical
integrity and privacy, and considerate application of the cornerstone principle
of proportionality.
Throughout this global crisis, the World
Anti-Doping Agency (‘WADA’) has carefully monitored the situation, providing
anti-doping organizations and athletes with updates and advice. On
6 May 2020, WADA issued the document called ‘ADO
Guidance for Resuming Testing’ (‘COVID Guidance’). A COVID-19
‘Q&A’ for athletes (‘Athlete Q&A’) is also available on WADA’s
website, and has been last updated on 25 May 2020. This article focuses on
these two latest documents, and analyses the solutions proposed therein, and
their impact on athletes.
Like many public or private recommendations
issued for other societal activities, the WADA COVID Guidance is primarily
aimed at conducting doping control while limiting the risk of transmission of
the virus and ensuing harm to individuals. More specifically, one can identify two
situations of interest for athletes that are notified for testing:
- The athlete has or suspects
that they may have been infected with COVID-19, or has come in close contact
with someone having COVID-19;
- The athlete fears to be in
touch with doping control personnel that may be infected with COVID-19.
Quite obviously, either situation has the
potential to create significant challenges when it comes to balancing the
interests of anti-doping, with individual rights and data protection concerns.
This article summarises how the latest WADA COVID Guidance and Athlete Q&A
address both situations. It explores how the solutions suggested fit in with
the WADA regulatory framework and how these might be assessed from a legal
perspective.
The focus will be on the hypothesis in
which international sports federations – i.e. private entities usually
organised as associations or similar structures – are asked to implement the COVID
Guidance within their sport. National anti-doping organizations are strongly
embedded in their national legal system and their status and obligations as
public or semi-public organisations are likely to be much more dependent on the
legislative landscape put in place to deal with the COVID-19 pandemic in each
country. Nevertheless, the general principles described in this article would
apply to all anti-doping organizations alike, whether at international or
national level. More...