Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre. 

This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options (hereafter UEOs) under national and European law. It focuses on the different approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the Court of arbitration for sport (CAS). While in general the DRC has adopted a strict approach towards their validity, the CAS has followed a more liberal trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are not necessarily invalid. In this second blog I will provide an overview of the similarities and differences of the two judicial bodies in tackling UEOs.

The emergence and function of the Portmann criteria

Since their first appearance in a case widely known as the South American Bosman for the impact it had on the whole system of contracts established by the Uruguayan Football Association, the so-called ‘Portmann’ criteria are often referred to in decisions on the validity of UEOs.^[1] In short, these criteria provide that:

1. the potential maximum duration of the employment relationship must not be excessive;
2. the option has to be exercised within an acceptable deadline before the expiry of the current contract;
3. the original contract has to define the salary raise triggered by the extension;
4. the content of the contract must not result in putting one party at the mercy of the other, and;
5. the option has to be clearly emphasized in the original contract so that the player can have full consciousness of it at the moment of signing.^[2]

These five requirements, proposed by Prof Wolfgang Portmann, were meant to represent the standard UEOs had to meet in order to be considered valid and biding upon the players. More precisely, in order not to constitute an excessive self-commitment that would result in a violation of Swiss ordre public.^[3] They emerged in the course of the South American Bosman as Prof. Portmann’s report was presented by Atlético Peñarol in the (unsuccessful) attempt to uphold the validity of the unilateral option the club had used in its employment contracts. From that moment on, the Portmann criteria became a recurrent theme in decisions by the DRC and the CAS. However, these criteria have been used over the years in a rather incoherent fashion and their importance in the assessment of UEOs is not unequivocal.

Thereafter, in its first decision, the DRC used the criteria to assess the validity of an UEO.^[4] But then it drastically drifted away from them. Actually, in the ensuing decisions the DRC did not refer to the five conditions at all. In some instances it limited itself to recall its established jurisprudence finding the validity of UEOs disputable since they give the stronger party in the employment relationship the power to unilaterally extend or terminate the contract.^[5] In another occasion, the DRC expressly dismissed the binding effect of the Portmann report, underlining that it only constitutes a non-binding recommendation.^[6]

Furthermore, interestingly, in the appeal proceedings of the Atlético Peñarol case the CAS did not mention the Portmann report in its evaluation of the UEO. The Panel only referred to it in the part of the award that assessed the question of the applicable law and noted that Prof Portmann’s starting point was radically different from that of the Panel, as he deemed Uruguayan law applicable to the dispute, while the Panel applied Swiss law/the RSTP.^[7] Having said that, the CAS also seems to have departed from its initial approach, but in a rather different way than the DRC. In an early award of 2007, the CAS refused to give too much weight to the Portmann report and focused its reasoning on other circumstances.^[8] Yet, the ensuing awards did not follow suit on this approach. In its more recent awards, the CAS held that the criteria constitute soft guidelines and often de facto relied on them to reach its conclusion on the validity of an option.^[9] In one occasion, the CAS even added to the list of requirements two criteria, “emanating from recent developments in the FIFA DRC and CAS jurisprudence”, namely (i) the proportionality between the extension and the main contract and (ii) the desirable limitation of the number of extensions to one.^[10]

Regarding the relevance of the Portmann criteria, it seems that the only shared trait between the DRC and the CAS is that both have drifted away from their approach. Though, in quite opposite ways. 

Increase in salary as a sine qua non condition for the validity of UEOs

The question of the increase of the player’s salary is considered central, by both the DRC and the CAS, in deciding the validity of UEOs.

In fact, an improvement of the player’s salary is considered by the DRC as a possible ‘validating’ circumstance since the first published decision on the issue.^[11] The FIFA Chamber placed particular emphasis on the necessity to offset the unequal bargaining power that UEOs give to football clubs. To do that, a significant economic gain for the player must be envisaged in the contract as a result of the extension. In the view of the DRC, this is a necessary but sometimes not sufficient condition for the validity of a UEO, since the specification of the financial terms of the renewal in advance “necessarily cannot take into account, neither by the player nor the club, the possible enhancement of the player’s value, and hence earning power, over a two year period”.^[12]

In its awards on the matter, the CAS contends that the player must derive a clear economic advantage from the exercise of the option.^[13] Thus, the increase in salary is the only requirement that is fully embraced by both the DRC and the CAS. It is interesting to note, however, that in only one occasion did the CAS explicitly mentioned that “[e]ven if the financial terms had to be specified in advance, they necessarily take no account of the possible enhancement of a players value – and hence earning power – over a five year period e.g.: if he becomes an international player during that time”.^[14] It is also worth noting that, at least in one award, the CAS concluded that an increase in salary has to be evaluated only in relation to the previous economic conditions of the player’s contract and not in relation to the salary he could earn somewhere else.^[15]

In light of the above, it is safe to conclude that an UEO coming with a substantial increase in salary for the player has good chances to be deemed valid by the DRC and the CAS. To this end, a few additional observations are relevant. Firstly, how much is enough? Unfortunately, no clear guidelines can be derived from the case law. Secondly, it is practically impossible to predict the increase in value of a football player over a long-term period. Consequently, what can be considered a reasonable increase in salary at the signing of the contract might be deemed insufficient a few years later. Lastly, and probably most importantly, this approach might overlook the fact that an increase in salary is not always the only element a footballer takes into account in his career, as sometimes more personal considerations might push a player to move to a different club in another country. For instance family reasons might play a significant role in such a decision. Furthermore, football players might often consider more convenient for the development of their careers to give up on an increase in salary in order to have the chance to move to a club with more playing opportunities. An increase in salary, even substantial, should not be the altar on which a footballer’s fundamental freedom of movement and, ultimately, of choice is sacrificed.

The player’s behaviour

The player’s stance has often been evaluated by the DRC in particular as a concurrent element in determining the validity of an UEO. The main argument is that a certain behaviour of the player, such as keeping training and playing official matches with the club, implies a tacit acceptance of the extension. Once again, the DRC and the CAS are not entirely on the same line. The DRC jurisprudence gives more weight to this aspect, while the CAS has mentioned that particular attention has to be paid to “the player’s conduct during the period leading to the negotiation of the alleged extension clause” only in one single case.^[16]

With regards to the circumstance that the player has played in official matches as a consequence of the extension, the DRC showed a swinging trend. In one instance, it deemed it not relevant.^[17] Yet, in a subsequent decision (the only one by the DRC upholding the validity of an UEO to date), the fact that the player had kept taking part in training sessions and playing official matches for the club after the extension had quite a different impact on the reasoning of the Chamber.^[18] More recently, the DRC stated that the fact that the player trained with the club for a month after the alleged renewal does not imply his tacit acceptance of the unilateral extension.^[19]

The applicable law

As seen in the first part of this blog, each national jurisdiction interprets the validity of UEOs differently. Consequently, the choice of applicable law can play a major role in the outcome of a case, although the issue arises mainly when the dispute is brought before the CAS. The matter is complicated by the fact that CAS panels have a certain degree of discretion in deciding the law applicable to a dispute, and by the circumstance that even when they apply the same law they might reach different conclusions. With regard to the latter point, let us take into consideration two cases in which the CAS has established Greek law as the applicable law. In one occasion the Panel deemed “appropriate to mitigate the letter of Greek law by the spirit of general principles”, as its content concerning UEOs was considered inconsistent with “general principles of labour law”^[20] and consequently dismissed the appeal of the club. In another one, instead, the Panel concluded that the dispute had to be decided according to FIFA Regulations and Swiss law on a subsidiary basis, “with the important exception of any issues related to the Contract […] which shall be decided in accordance with Greek law”.^[21] Therefore, given that in Greece unilateral options allowing clubs to automatically extend employment contracts are legal, the Panel upheld the validity of the clause.^[22]

A radically different approach was taken by the CAS in the Atlético Peñarol case discussed above. In the absence of an express choice of law of the parties, the Panel deemed the FIFA Regulations and, subsidiarily, Swiss Law applicable. It is worth recalling the reasoning of the Panel, as it could pave the way to a reasonable solution for the UEOs issue. The arbitrators noted that the application of art. 187 of the Swiss LDIP gives wide freedom of choice to the parties, who can even require the arbitrators to decide ex aequo et bono, i.e. without any reference to specific State laws. This means that art. 187 LDIP allows, a fortiori, to refer to rules that transcend the particular State laws, such as sports regulations. The Panel stressed that sport is a phenomenon that naturally crosses borders, and thus it is necessary to ensure uniform legal standards. Only if the same terms and conditions apply to everyone who participates in organised sport, is the integrity and equal opportunity of sporting competition guaranteed. In practice, the FIFA Statutes and Regulations provide such uniform rules. Additionally, the arbitrators underlined that the application of Uruguayan law would lead to a result incompatible with the minimum standards of protection of employees provided by Swiss labour law. Hence, the CAS concluded that the Uruguayan system of UEOs is not compatible with the FIFA Regulations. Furthermore, the Panel noted that these options effectively bypass the basic principles of the FIFA regulations, which “very particularly protect the interests of training clubs through training compensation and the solidarity contribution […] It is not possible that this protection of the contents of a contract between clubs and players can be bypassed in order to serve only the interests of one party, in this case the club, which does not itself have to make a commitment. So the Panel considers that the unilateral contract renewal system is not compatible, in its very principle, with the legal framework which the new FIFA rules were designed to introduce”.^[23] In other words, the Uruguayan system seemed to reintroduce, through the backdoor, the system that was abolished with the reforms of the FIFA Regulations 1997, 2001 and 2005.^[24]In such a system the player is bound to a contract negotiated at a moment of his career when he did not have a strong bargaining power. Which is to say, the player is left at the mercy of the club. The arbitrators stressed that only the most talented players can escape this mechanism, when the club receives an important transfer offer for their services.^[25]In that occasion, the player will hardly refuse the transfer knowing that, doing otherwise, he will be bound to the club because of the UEO in his contract.

Conclusions: The way forward

We have seen in part 1 of this blog that we lack a coherent regulatory framework for UEOs at the national level. This second part has also shown that things are not much clearer at the DRC and the CAS, as the two bodies, while agreeing on the existence of certain criteria, take different approaches on the assessment of each of them (except for the increase in salary). Furthermore, the outcome of a case can be heavily dependent on the applicable law. Consequently, the future validity of UEOs is uncertain, given that no uniformity can be found in the CAS jurisprudence.

The uncertainties related to the applicable law issue are manifold. Upholding the validity of national law, although granting some advantages in terms of foreseeability, presents two main drawbacks. First of all for the clubs which draft the contracts and cannot predict to what extent this law will be deemed applicable by the CAS and, consequently, are unable to draft the contract with all the necessary information desirable in respect to UEO clauses.^[26]Secondly, and most importantly, this approach overlooks the fact that football is a global phenomenon, and the transfer market a transnational one, which requires uniform rules at the international level.

The conclusion reached by the Panel in the Atlético Peñarol case is a fair starting point in the quest for more certainty in the matter. The undisputable merit of that award was to clearly highlight (i) the unequal nature of a clause that is accepted by the player at the early stages of his career and (ii) the necessity to have a body of regulations that can be understood and predicted by the entire international football family.[27] Let us conclude, therefore, that only the universal application of a set of regulations, such as the FIFA RSTP, would ensure legal rationality, predictability and, significantly, “the equality of treatment between all the addressees of such regulations, independently of the countries from which they are”.^[28] A fortiori, when at stake is the fundamental freedom of movement and choice of footballers, the need to rely on a uniform body of principles and rules, a lex sportiva, universally applicable without discrimination becomes crucial.

However, applying the FIFA Regulations in a standardised way still leaves a problem unsolved. This body of rules is in fact silent on the very issue of UEOs. FIFA could tackle the issue in a variety of ways, for instance by codifying in the RSTP a revisited version of the Portmann criteria. Suggesting precise reforms to FIFA goes beyond the purpose of this blog, but one thing is sure: in the face of the extreme uncertainty that surrounds the validity of these clauses, having one single body of rules expressly targeting the issue and universally applicable would be of great help to all the parties involved.

[1] The case concerned the contracts of two Uruguayan players, Carlos Heber Bueno Suárez and Christian Gabriel Rodríguez Barotti with the Uruguayan football club Atlético Peñarol. Pursuant to their contracts, the professional services of Bueno and Rodríguez could be extended unilaterally by the club for two years, provided that their salary would increase in accordance with the National Consumer Price Index. At the end of the season, and after being suspended and deprived of the possibility of playing for four months, the players signed for the French club Paris Saint Germain, and refused the club’s unilateral extension. See TAS 2005/A/983 & 984, Club Atlético Peñarol v. Carlos Heber Buen Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint Germain, award of 12 July 2006. In fact, the framework has slightly changed over the last few years in South America. In Argentina, for instance, the 2009 Collective Bargaining Agreement (CBA) n. 557/09, signed by the Association de Futbol Argentino (AFA) and the Union of Amateur and Professional Football Player provides the current guidelines. In this context, contracts of athletes who have reached the age of 21 can be extended once for one year only, provided that a salary increase of 20% is guaranteed as a consequence of the extension. Extension options for players older than 21 shall be considered null and void, even in the circumstance that AFA has registered the contract, and consequently the player is to be declared a free agent and thus free to sign a contract with another club (see Colucci, Hendricks, Regulating Employment Relationships in Professional Football, A Comparative Analysis, European Sports Law and Policy Bulletin 1/2014, 26). See also Juan de Dios Crespo Pérez’s commentary of the case in A. Wild (ed.) CAS and Football: Landmark Cases (2011), 118. 

[2] F. de Weger, The Jurisprudence of the FIFA Dispute Resolution Chamber, 169.

[3] Prof Portmann considered South American law the law applicable to the substance of the matter. Nevertheless, according to the author, in order to be considered valid, the option not only had to be consistent with local employment law, Collective Bargaining Agreements and regulations of the relevant national association, but it also had to respect mandatory rules of Swiss law and Swiss ordre public. Although he considered the principle of parity of termination rights not part of ordre public per se (and, therefore, the circumvention of that right that these clauses entail not problematic in itself), he stressed that an excessive self-commitment of one of the parties to a contract could indeed result in an infringement of Swiss and international ordre public.

[4] In the unpublished decision 12 January 2007 (see F. de Weger, The Jurisprudence of the FIFA Dispute Resolution Chamber, 169), the DRC made reference to the five elements of the Portmann report to conclude that the option was not valid because, among other considerations, the notice period was too short.

[5] See decision 30 November 2007 n. 117707 and decision 7 May 2008 n. 58860.

[6] See decision18 March 2010 n. 310607, where the DRC interestingly pointed out that the inequality derives from the fact that the player, given the circumstances of contractual inferiority existing at the time he signs his first contract, either accepts the contract with the UEO or gives up on playing football with that team.

[7] TAS 2005/A/983 & 984, Club Atlético Peñarol v. Carlos Heber Buen Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint Germain, award of 12 July 2006, para. 66.

[8] CAS 2006/A/1157, Club Atlético Boca Juniors v. Genoa Cricket and Football Club S.p.A., Award of 31 January 2007, para. 16. The Panel had “great difficulty in following Dr Portmann’s reasoning, and in accepting the validity and enforceability of a unilateral option”. The arbitrators deemed more important, instead, to put emphasis on the general assumption that a person, and a fortiori a minor who had just moved with his family to another country, cannot be required to perform a contract for personal services against his or her will.

[9] The CAS held recently that “these criteria may be taken into consideration and are important, but […] they are not absolute rules, the failure of which would determine the absolute invalidity of the option clause”, in CAS 2014/A/3852, Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahda Sprts and Cultural Club, award of 11 January 2016, para. 86.

[10] More precisely, a Panel held “the need to not accord too much weight and value to the Portmann criteria at the expense of the very important specifics and circumstances behind each individual dispute” CAS 2013/A/3260, Grêmio Foot-ball Porto Alegrense v. Maximiliano Gastón López, Award of 4 March 2014, para. 76, see also para. 68-69.

[11] In Decision 22 July 2004, the DRC noted that because the player’s economic conditions remained substantially unaltered in the renewal, the option was invalid.

[12] See Decision 23 March 2006, para 14. In this case, the DRC deemed that a monthly increase of less than € 1.000 of the player’s salary could not be seen as a significant economic gain for the player.

[13] See CAS 2004/A/678, Apollon Kalamarias F.C. v. Oliveira Morais, award of 20 May 2005, para. 21 and TAS 2005/A/983 & 984, Club Atlético Peñarol v. Carlos Heber Buen Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint Germain, award of 12 July 2006, para. 93. See also CAS 2005/A/973, Panathinaikos Football Club v. Sotirios Kyrgiakos, Award of 10 October 2006 and CAS 2013/A/3260, Grêmio Foot-ball Porto Alegrense v. Maximiliano Gastón López, Award of 4 March 2014, para. 77.

[14] CAS 2004/A/678, Apollon Kalamarias F.C. v. Oliveira Morais, award of 20 May 2005, para 21.

[15] See CAS 2005/A/973, Panathinaikos Football Club v. Sotirios Kyrgiakos, Award of 10 October 2006, para. 23. In which the Panel considered inappropriate to compare between the salary of the extended contract from the Greek club and the salary the footballer would have received at a club in the Scottish league (the Rangers FC) since “it is well known that football clubs operating in richer markets are able to offer a higher income to players”.

[16] CAS 2013/A/3260, Grêmio Foot-ball Porto Alegrense v. Maximiliano Gastón López, Award of 4 March 2014, para. 70.

[17] See Decision 13 May 2005. Here the DRC also pointed out the non-decisiveness of the acceptance by the player of a payment of €1,950 after the extension as a result of the new contract.

[18] See Decision 21 February 2006, in which the DRC noted that: (i) the player had waited almost five months after the beginning of the extension to bring the case before the FIFA.

[19] See Decision 31 July 2013.

[20] CAS 2004/A/678, Apollon Kalamarias F.C. v. Oliveira Morais, award of 20 May 2005, para 24. The Panel dismissed the appeal of the club even though its contract with the player seemed to be drafted in conformity with Greek Sports Law, which – pursuant to Law 2725/99 – allows for the unilateral renewal of the contract provided that (i) the overall duration of the contract, including the extensions, does not exceed five years and that (ii) the financial terms are agreed at the signing of the initial contract.

[21] CAS 2005/A/973, Panathinaikos Football Club v. Sotirios Kyrgiakos, Award of 10 October 2006, para.10.

[22] The Panel, which considered “inappropriate to apply substantive Swiss law to the contract as it has no connection whatsoever with Switzerland (para. 8), made reference to the same Law 2725/99.

[23] TAS 2005/A/983 & 984, Club Atlético Peñarol v. Carlos Heber Buen Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint Germain, award of 12 July 2006, paras. 81-83 (the translation is of the author).

[24] Ibid., para. 80.

[25] Ibid., para. 79.

[26] Ibid.

[27] J-S Leuba, R Fox, J de Dios Crespo Pérez, G L Acosta Perez and F m de Weger, ‘Contractual Stability: Unilateral Options’, in A. Wild (ed.) CAS and Football: Landmark Cases (2011), 119.

[28] Ibid.

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:

1. 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;
2. 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.

II.              Addressing the risk of the athlete tested having been exposed to COVID-19

Obviously, sample collection personnel must not be exposed to unnecessary risks as a result of collecting samples from athletes who could have come into contact with COVID-19. This concern is legitimate, whether anti-doping organizations conduct sample collection through their own doping control officer network, or outsource this task to external service providers.

A.     The solutions provided for in the WADA COVID Guidance

A first set of measures in the COVID Guidance is designed to keep individuals at risk from having to go on testing missions at all. The Guidance does so in two ways: on the one hand, by identifying categories of ‘Vulnerable Populations’ of sample collection personnel which anti-doping organizations should avoid sending on testing missions (section 3(e)), and on the other hand by making it clear that “the ADO should clearly communicate that any SCP who are not comfortable collecting samples during this time do not have to do so” (section 3(a)).

A second set of measures seeks to identify whether the individual athlete at stake presents any symptoms or heightened risk of having be exposed to COVID-19, or is even confirmed to be infected. To this effect, anti-doping organizations are invited to develop an additional Athlete Information Letter for the sample collection session, as well as appropriate information and education material.

The material should stress, in particular, that “additional personal information may be requested from athletes during sample collection. Identify the additional health information that the ADO will be asking athletes to provide to ensure their health and safety as well as that of SCP, and the manner in which this information will be used, stored and shared” (section 4(a)(iv)). The Athlete Information Letter should include “outline of the potential consequences to the athlete should they refuse to comply” (with the testing), as well as “request that the athlete contacts you (ADO) if their health situation changes”.

It is further recommended that a specific ‘COVID-19 Athlete Questionnaire’ be developed by each anti-doping organization (section 4(d)). Annex A of the COVID Guidance outlines the details:

• Athletes must be asked at the door, before proceeding with formal notification: “Are you or anyone present with you at this location/living at this residence/who lives with you, experiencing any COVID-19 symptoms” or “do you, or anyone present with you at this location/living at this residence/who lives with you, have COVID-19”?;
• Athlete who answer YES must then fill out the questionnaire: according to the WADA COVID Guidance, the sample collection personnel must “inform the athlete that they must complete this questionnaire truthfully and to the best of their knowledge and that if they purposefully provide any information which is inaccurate or incorrect, it could be construed as an anti-doping rule violation (e.g. tampering or attempted tampering) and they may be subject to a sanction of up to four years. Confirm that the athlete understands this”;
• Athletes must be informed that because they have declared they or someone close to them have COVID-19 or symptoms, “sample collection will not proceed due to the risk of infection with COVID-19”.

Beyond individual testing attempts, Section 4(f) provides that athletes who are tested and subsequently contract COVID-19 “should be encouraged” to inform the ADO. The Athlete Q&A also advises athletes, if they are concerned that they may have acquired the virus, that “you should advise your ADO of your situation with your whereabouts submission or when sample collection personal notify you for testing so that they can adjust their plans accordingly” (Question 5).

B.     Assessment of the situation in the light of data protection requirements

Through various tools (oral questions, COVID-19 Athlete Questionnaire, whereabouts submission), the COVID Guidance provides that information be obtained from athletes about whether they, or their close entourage, exhibit symptoms of COVID-19 or have been diagnosed with COVID-19. This type of information represents health data, which is sensitive data that typically enjoys special protection under data protection laws.

The question arises, then, how athletes can be required to provide such data, and what the consequences should be if they refuse to do so, or if they provide inaccurate data.

A first issue that deserves analysis is whether the data can be requested pursuant to the current WADA regulatory framework and what sanctions can be attached to failing to comply based on the WADA Code.

Sample collection is governed by the WADA International Standard for Testing and Investigations (‘ISTI’). The ISTI – whether incorporated by reference or directly transposed into the anti-doping organization’s rules – is the only binding document in this context. While the term ‘guidance’ is not one that has an established status under the WADA Code, it is probably closest to the Level-3 document defined as ‘Guidelines’ (section Purpose, Scope & Organization). This type of document enshrines recommendations to anti-doping organization, but is not mandatory upon them. These documents cannot, therefore, result in amending the ISTI. Any departure from the ISTI could give rise to an objection to invalidate the finding of an anti-doping rule violation, as per the regime set forth in Article 3.2.3 WADA Code.[1]

The ISTI section 7.4.5 provides a bullet-point list of the data to be collected during the sample collection session, which is introduced as follows: “In conducting the Sample Collection Session, the following information shall be recorded as a minimum” (emphasis added). Despite this wording, it is submitted that the ISTI cannot be read as authorizing anti-doping organizations to collect additional health information on their doping control forms, certainly not subject to the penalty of an anti-doping rule violation. Athletes risk a so-called ‘failure to comply’ (e.g. tampering) violation if they refuse or provide false information at sample collection.[2] They cannot be asked to provide information that is not either listed in the ISTI, or – where the anti-doping organization has adopted its own standard – reflected in the implemented rules. Otherwise, anti-doping organizations could come up during sample collection with random additional requests for data and turn a refusal to provide such data into an anti-doping rule violation at will.

The Athlete Q&A states that “you may see enhancements that seek to strike the balance between the protection of clean competition and personal health” (emphasis added). These may include “a self-declaration concerning your health status” (Question 4). In spite of the euphemistic language used, the additional information requested and the related COVID-19 Athlete Questionnaire are purported amendments to the ISTI requirements. This is all the more concerning since the questionnaire also may also require athletes to give out health data concerning identifiable third parties.

Accordingly, the blanket statement in the COVID Guidance whereby athletes should be informed that they may be charged with an anti-doping rule violation for failing to truthfully fill in the Athlete COVID Questionnaire may prove unenforceable to a large extent. Asking for such data represents a departure from the ISTI. Applying the proof regime set forth in Article 3.2.3 WADA Code, such departures invalidate the finding of an anti-doping rule violation at the very least if they ‘caused’ the anti-doping rule violation.[3]

Furthermore, one should distinguish cases in which athletes refuse the data outright, or hide COVID-related symptoms, from the situation in which an athlete falsely states having COVID-related symptoms. Obviously, if the athlete refuses to provide a sample because of the anti-doping organization making the health data compulsory to complete sample collection, in breach of the ISTI, the departure is directly causative for the refusal, which as a result cannot be prosecuted under Article 2.3 WADA Code (refusal to submit to testing). The same would, arguably, apply if the athlete answers the questions but fails to provide genuine health data which could have led to aborting testing (e.g fails to mention COVID-19 symptoms). This could impossibly result in charges for tampering with the doping control process under Article 2.5 WADA Code, in the absence of a regulatory basis for requesting the information in the first place.[4]

The only scenario in which one could imagine charging athletes with a tampering violation is where the athlete is shown a posteriori to have invented COVID-19 symptoms or a COVID diagnosis, and deliberately used it as an excuse for not being tested. The anti-doping organization would, however, have to demonstrate intent,[5] specifically show that the athlete had no symptoms whatsoever, or that the athlete did not believe in good faith that the symptoms could be evidence of COVID-19. Such proof would probably prove impracticable in all but the most exceptional situation.

Thus, what seems most concerning about the WADA COVID Guidance in the way it informs athletes on the consequences of not filling the questionnaire truthfully, is its utterly generic wording. The Guidance is misleading insofar as it implies that athletes are under an obligation to provide the health data at stake, under the threat of disciplinary sanctions of up to four years. With respect to the equivalent self-certification recommended for the sample collection personnel as to their symptoms or contacts with COVID, the Guidance clarifies that introducing such self-certification is subject to being “permitted by applicable data protection, health, and employments laws”. Though the Guidance does not include the same caveat when it comes to the COVID-19 Athlete Questionnaire, the same reservations must obviously apply for health declarations that athletes are asked to make.

This leads over to the second issue, which is whether athletes can be compelled to provide the data and sanctioned for refusing to do so based on grounds outside the ISTI and WADA regulatory framework. There may be – in the current spread of the pandemic – state law under certain jurisdictions in which there is a legal obligation to declare COVID symptoms or COVID diagnosis, under one form or another. It seems highly unlikely, however, that this type of obligation would extend to an obligation to give out non-coded health information – including data regarding third parties – to private entities. If there is, the legal basis should be specified on the COVID-19 Athlete Questionnaire.

Assuming the absence of extraordinary COVID-related laws, anti-doping organizations have to rely on ordinary data protection rules. In an European context, we can use as a reference the EU General Data Protection Regulation (‘GDPR’), which will be applicable to a significant amount of doping controls, and has otherwise acquired a status of ‘best practice’. According to the GDPR, health data represents ‘special-category’ data which can only be processed based on very restrictive grounds (Article 9 GDPR). One of these is consent explicitly given by the data subject (Article 9(2)(a) GDPR). This ground cannot be used based on the terms of the COVID Guidance, since consent given under threat of a four-year disciplinary sanction can hardly be considered free, and thus valid, under the GDPR.[6]

Much will then depend on whether the anti-doping organization at stake benefits from a basis in national law to process health data in the context of doping control based on public interest grounds (under Article 9(2)(e) or (i) GDPR), and how broadly such legal basis is framed. It is by far not manifest that COVID-related health data would qualify as collected for ‘anti-doping purposes’ within the meaning, in particular, of Article 5.1 WADA Code. No claims are made in the COVID Guidance that the information is necessary for the sake of reliable sample analysis. In addition, the WADA Code certainly provides no basis for collecting health information about the athlete’s entourage.

In sum, any COVID-19 Athlete Information Letter or Athlete Questionnaire should make it crystal clear that athletes cannot be compelled by their anti-doping organization to provide data regarding their current health status. If a questionnaire is introduced, athletes should be informed that they may – voluntarily – provide health information about themselves or their entourage, provided that they have obtained consent from their entourage if the data subject is identifiable. The questionnaire could be treated like consent to anti-doping research, which is declared unequivocally optional on the doping control form, with no consequences arising from an athlete refusing to provide the information requested. Athletes must receive transparent information to the effect that they cannot be charged for an anti-doping rule violation if they refuse to give such data, and that possible charges might, at most, apply if they use false COVID symptoms or a false COVID diagnosis as a pretext to avoid sample collection. If the mere optional character of the questionnaire were, depending on the local pandemic situation, considered to create inacceptable risks for the sample collection personnel and if there is no other basis in national law to request such information, testing should not resume.

III.            Dealing with the risk of sample collection personnel having been exposed to COVID

As mentioned, a second set of concerns addresses the hypothesis of athletes being endangered – or feeling endangered – by the presence of sample collection personnel. These concerns appear equally legitimate since the WADA COVID Guidance acknowledges that some situations may not allow for recommended social distancing requirements to be maintained at all times during testing.

A.     The solutions provided for in WADA COVID Guidance

The WADA COVID Guidance seeks to address these concerns through the following means:

• By defining categories of ‘Risk Groups’ of sample collection personnel (e.g. health care professionals currently employed) (section 3(e)), who should not be sent on testing missions;
• By encouraging a system of self-certification to be completed by the sample collection personnel before a testing mission, “if permitted by applicable data protection, health, and employment laws” (section 3(f));
• By providing that social/physical distancing is to be maintained “as much as possible” (Annex A), and informing athletes of the role that protective equipment (e.g. wearing masks) can play for their safety.

While the consequences of an athlete disagreeing about the anti-doping organization’s assessment of safety is not addressed in the COVID Guidance itself, it is discussed in the Athlete Q&A: “Can I refuse to be tested if I [..] do not feel that adequate precautions are being taken by sample collection personnel?”.

The answer given is that, where confinement measures are still in place, “such a scenario is unlikely as ADOs must exercise sound judgment in these unprecedented times”. The answer continues: “Unless there is a mandatory isolation/lockdown, however, you are advised to comply with testing while following the preventative measures put in place by your ADO, which should be commensurate with the risks at hand. If you refuse to be tested or if you do not complete sample collection process after notification, or if you are not able (or willing) to provide a sample due to a lack of protective measures, your refusal will follow the normal results management process, which may result in a period of ineligibility of up to four years” (Question 8; emphasis added).

B.     Assessment of the solutions proposed in light of protection of the athlete’s health

The WADA COVID Guidance arguably seeks to create a reasonable safety standard and encourages anti-doping organizations to have in place appropriate protective measures. However, WADA takes no responsibility for guaranteeing to athletes that they will suffer no prejudice if those safety standards are not maintained in individual testing attempts. Instead, the Athlete Q&A explicitly warns athletes that if they fail to submit to sample collection “due to a lack of protective measures”, they will be subject to ordinary results management.

Let us be very clear about the starting point, which goes beyond the context of the COVID-19 pandemic: no athlete should ever have to subject themselves to sample collection when they fear for their health and physical integrity.

In the CAS award WADA v. Sun Yang & FINA, the CAS panel held that “as a general matter, athlete should not take matters into their own hands, and if they do they will bear the risk of serious consequences. The proper path for an Athlete is to proceed with a Doping Control under objection, and making available immediately the complete grounds for such objection”.[7]

Though this may appear a rather peremptory statement, the panel also insisted, rejecting WADA’s claim that athletes must always allow a sample to be collected, that “it cannot be excluded that serious flaws in the notification process, or during any part of the Doping Control process, could mean that it might not be appropriate to require an athlete to subject himself to, or continue with, a sample collection session. Rather, they could invalidate the sample collection process as a whole, so that an athlete might not be perceived as having tampered with the Doping Control, or as having failed to comply with the sample collection process”.[8]

It is submitted that, where athletes express legitimate concerns about their physical integrity or broader health, they cannot be referred to submitting to testing nonetheless and subsequently file their objections against the procedure. In fact, the CAS panel in WADA v. Sun Yang & FINA did endorse past CAS jurisprudence to the effect that: “whenever physically, hygienically and morally possible, the sample be provided despite objections by the athlete”.[9] A contrario, where circumstances exist that relate to ‘physical, hygiene or moral’ hazards, the athlete should be entitled to refuse sample collection.

The stakes here reach far beyond the potential to obstruct collection of evidence to support disciplinary proceedings for anti-doping purposes. They concern the rights of an individual asked to provide biological materials, in a way that is either highly intrusive of their intimate sphere (urine sampling), or represents an actual medical act (blood sampling).[10] Filing objections and documenting concerns a posteriori are not measures capable of achieving the goal of protecting those rights where the threat emanates directly from the sample collection process, as opposed to its potential detrimental disciplinary consequences.

Previous guidance issued by WADA on 20 March 2020 included some more details about how cases arising from refusal to submit to testing due to (alleged) lack or preventative measures should be treated:

“If a potential refusal or failure to submit to sample collection is submitted to the ADO, the typical results management process should be followed and the athlete will have the opportunity to submit their defense, including any reasons why they believe their refusal or failure to complete the process was justified. This information will be taken into account when: 1) the ADO determines if a potential anti-doping rule violation should be asserted, and 2) the disciplinary panel hears the case”.

A typical results management process for refusing to submit to sample collection would be handled as a failure to comply under Annex A of the ISTI, according to which the sample collection personnel will submit a report to the anti-doping organization and athletes will be asked to provide explanations.

The claim that the anti-doping organization did not ensure appropriate protective measures should be analysed initially as a departure from the ISTI and treated in accordance with the regime set forth in Article 3.2.3 of the WADA Code. Annex D.1 of the ISTI indeed provides that its objective is: “To collect an Athlete’s urine Sample in a manner that ensures: a) consistency with relevant principles of internationally recognised standard precautions in healthcare settings so that the health and safety of the Athlete and Sample Collection Personnel are not compromised. The same statement is provided for blood sample collection in Annex E.1.

If it becomes apparent that, objectively, no adequate precautions were taken with respect to the risk of COVID-19 (or indeed any other health hazard) during the sample collection session, this represents a departure from the ISTI which – to use the wording of Article 3.2.3 WADA Code – could “reasonably have caused” a refusal. The burden then shifts to the anti-doping organization to establish, to the comfortable satisfaction of the hearing panel (Article 3.1 WADA Code), that this departure was not in reality what led the Athlete to refuse sample collection. If the anti-doping organization cannot discharge this burden – and discharging it should prove difficult once established that safety was objectively lacking – no finding of an anti-doping rule violation can occur.

Whether adequate precautions were taken should be analysed based on the local situation and applicable public health guidelines at the time of collection in the relevant country. The anti-doping organization may reach the conclusion that the standards were inadequate spontaneously when reviewing the failure to comply, or the conclusion may be drawn by the hearing panel. The WADA COVID Guidance can serve as a minimum benchmark, since athletes can legitimately expect that anti-doping organizations would at least comply with these. However, stricter local guidelines in place should always prevail, since doping control cannot claim exemption from the rules that would otherwise apply to medical or similar acts requiring close interpersonal contact. Athletes who are of the view that they are not offered adequate protective measures would be well-advised to document the exact circumstances, the concerns they voiced and the measures that were proposed by the sample collection personnel to alleviate these concerns.

Even if it can be demonstrated, a posteriori, that the safety measures were objectively adequate at the given site and time, and thus no departure from the ISTI occurred, this should not be the end of the assessment. Article 2.3 WADA Code reserves the presence of “compelling justification” for refusing testing.[11] If athletes can demonstrate, by a balance of probabilities (Article 3.1 WADA Code),[12] that their doubts about the protective measures proposed by the anti-doping organizations were legitimate at the time and given the circumstances, this should qualify as a compelling justification. Again, the consequence will be that the finding of an anti-doping rule violation must be rejected.

The regime proposed above seeks to avoid athletes putting their health at risk for fear of facing disciplinary sanctions. It strikes an appropriate balance with the interests of doping control and appears sufficient to prevent athletes using fake safety concerns as an excuse to escape testing. At the very least, they will have to demonstrate plausibly that they were reasonably entitled to hold such concerns.

Hearing panels will inevitable retain considerable latitude in their judgment, since the WADA COVID Guidance leaves ample room for interpretation, and so will most public authorities’ guidelines. Hence, athletes who choose to refuse testing will need to accept the risk that they may be erring about what protective measures should be in place, especially if they claim that the measures should go beyond those advocated in the COVID Guidance. Conversely, they can certainly not be invited to assume and trust a priori that the anti-doping organization is necessarily taking measures “commensurate with the risks at hand”, as the COVID Guidance suggests. Importantly, the athlete’s individual circumstances must be taken into consideration. It is worth recalling that some athletes, just like sample collection personnel identified in the COVID Guidance, may belong to a vulnerable population category, including for reasons that they feel unable to communicate to the sample collection personnel in detail (e.g. because of a chronic condition that would lead them to reveal highly sensitive health data). The assessment of what constituted ‘understandable’ concerns should therefore not be too strict, but should be made in light of the ambient anxiety and scientific uncertainty prevailing during the pandemic.

IV.            Conclusion

The WADA COVID Guidance represents a commendable attempt to strike a balance between maintaining doping control during the COVID-19 pandemic, and safeguarding the health of all participants, sample collection personnel and athletes alike.

Anti-doping organizations will, however, have to apply the Guidance with caution and discernment. As shown above, the Guidance walks a thin line when it comes to athlete privacy and physical integrity. This is all the more so since athletes have no option to ‘take a break’ from exposure to the risks going along with testing,[13] in contrast to sample collection personnel who are given a choice to refrain from participating in missions if they feel uncomfortable.

COVID-19 confronts anti-doping organizations with tough dilemmas. Continued and comprehensive testing is viewed by many, including athletes, as a prerequisite for ensuring that they can return to competition in a level playing field. This does not mean that we can forgo compliance with mandatory standards of law. Where testing proves impracticable in accordance with the law and with applicable sports regulations, and in a way that guarantees safety for all participants, such testing must not take place. As important as the quest for clean sport may be, it cannot override legitimate health concerns and basic privacy rights.

[1] Reference is made here to the currently applicable 2015 version of the WADA Code. Note that the 2021 version purports to restrict even further the athlete’s options for invalidating an anti-doping rule violation based on procedural departures.

[2] Failure to Comply is defined in the ISTI as: “A term used to describe anti-doping rule violations under Code Articles 2.3 and/or 2.5”. Article 2.3 targets refusal to submit to testing, whereas Article 2.5 targets a violation of tampering.

[3] Article 3.2.3 WADA Code reads (2015 version) : “Departures from any other International Standard [i.e., other than the ISL] or other anti-doping rule or policy set forth in the Code or Anti-Doping Organization rules which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such evidence or results. If the Athlete or other Person establishes a departure from another International Standard or other anti-doping rule or policy which could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding or other anti-doping rule violation, then the Anti-Doping Organization shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation”.

[4] In any event, it is questionable whether refusal to give health data could ever qualify as impeding sample collection, since the athlete’s silence enabled sample collection which could otherwise not have proceeded.

[5] Tampering is no strict liability violation under Appendix 1 WADA Code and requires proof of an intentional conduct on part of the athlete.

[6] On this, see also Viret Marjolaine, How Data Protection Crystallises Key Legal Challenges in Anti-Doping, International Sports Law Blog, 19 May 2019.

[7] CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 209.

[8] CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 208.

[9] CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 206.

[10] On this, see more broadly Viret Marjolaine (2016), Evidence in Anti-Doping at the Intersection of Science & Law, Springer, e.g. pp 218 & 682.

[11] In CAS 2016/A/4631, Brothers v. FINA, para. 78, the panel cited as hypotheses of justification in relation to health: “if the athlete were to faint unconscious on the floor upon seeing the DCO’s needle, or if he were stone drunk or would experience an epileptic fit at the time of the test.”

[12] Though Article 2.3 does not explicitly so provide, CAS panels typically place the burden of proof on athlete to show the existence of compelling justification (see e.g. CAS 2016/A/4631, Brothers v. FINA, para. 76; or already CAS 2005/A/925, de Azevedo v. FINA, para. 68 & 78).

[13] The WADA Athlete Q&A explicitly warns athletes that they remain subject to testing at any time and anywhere unless public authorities have put in place physical mobility restrictions (Question 1).