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.
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.
