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International and European Sports Law – Monthly Report – October 2019 by Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 


The Headlines

International Sports Law Journal (ISLJ) Conference 2019

The T.M.C. Asser Institute and the Asser International Sports Law Centre held the third International Sports Law Journal (ISLJ) Conference on October 24-25. The Conference created a forum for academics and practitioners to discuss, debate and share knowledge on the latest developments of sports law. It featured six uniquely themed panels, which included topics such as ‘Transfer systems in international sports’ and ‘Revisiting the (in)dependence and transparency of the CAS’ to ‘The future of sports: sports law of the future’. The ISLJ Conference was also honored to have two exceptional keynote speakers: Moya Dodd and Ulrich Haas. To kick off the conference, Moya Dodd shared her experiences from an athlete’s perspective in the various boardrooms of FIFA. The second day was then launched by Ulrich Haas, who gave an incredibly thorough and insightful lecture on the importance, function and legal basis of association tribunals in international sport. For a detailed overview of this year’s ISLJ Conference, click here for the official conference report.

The Asser International Sports Law Centre was delighted to have been able to host another great edition of the ISLJ Conference and is thankful to all the participants and speakers who made this edition such a success.

Moving towards greater transparency: Launch of FIFA’s Legal Portal

On October 31, FIFA announced that it was introducing a new legal portal on its website that will give greater access to numerous documents that previously were kept private. FIFA explains that this is in order to help increase its transparency, which was one of the key ‘Guiding Principles’ highlighted in FIFA 2.0: The Vision for the Future released in 2016. This development comes as many sport governing bodies face increasing criticism for the opacity of its judicial bodies’ decisions, which can have tremendous economic and societal impacts. The newly available documents will include: ‘decisions rendered on the merits by the FIFA Disciplinary Committee and the FIFA Appeal Committee (notified as of 1 January 2019); decisions rendered on the merits by the FIFA Ethics Committee (notified since 1 January 2019); decisions rendered on the merits by the FIFA Players’ Status Committee and the FIFA Dispute Resolution Chamber; non-confidential CAS awards in proceedings to which FIFA is a party (notified since 1 January 2019); list of CAS arbitrators proposed by FIFA for appointment by ICAS, and the number of times they have been nominated in CAS proceedings’. The list of decisions from all the aforementioned bodies are updated every four months, according to their respective webpages. However, time will ultimately tell how consistently decisions are published. Nevertheless, this move is a major milestone in FIFA’s journey towards increasing its transparency.

Hong Kong Protests, Human Rights and (e)Sports Law: The Blizzard and NBA controversies

Both Blizzard, a major video game developer, and the NBA received a flurry of criticism for their responses to persons expressing support for the Hong Kong protests over the past month. On October 8, Blizzard sanctioned Blitzchung, a professional Hearthstone player who expressed support of the Hong Kong protest during a post-match interview, by eliminating the prize money he had won and suspending him for one year from any Hearthstone tournament. Additionally, Blizzard will cease to work with the casters who conducted the interview. With mounting disapproval over the sanctions,  J. Allen Brack, the president of Blizzard, restored the prize money and reduced the period of ineligibility to 6 months.

The NBA controversy started when Daryl Morey, the general manager of the Houston Rockets, tweeted his support for the protests in Hong Kong. The tweet garnered much attention, especially in China where it received a lot of backlash, including an announcement from CCTV, the official state broadcaster in China, that it was suspending all broadcasts of the NBA preseason games. In attempts to appease its Chinese audience, which is a highly profitable market for the NBA, Morey deleted the tweet and posted an apology, and the NBA responded by saying that the initial tweet was ‘regrettable’. Many scolded these actions and accused the NBA of censorship to which the NBA Commissioner, Adam Silver, responded that the NBA remains committed to freedom of expression.

Both cases highlighted how (e)sport organizations may be faced with competing interests to either guarantee greater protection of human rights or to pursue interests that perhaps have certain financial motivations. More...


ISLJ International Sports Law Conference 2019 - Conference Report - By Thomas Terraz

On October 24th and 25th 2019, the T.M.C. Asser Institute and the International Sports Law Centre hosted the International Sports Law Journal (ISLJ) Conference for a third year in a row, bringing together a group of academics and practitioners from around the world. This year’s conference celebrated the 20th year of the International Sports Law Journal, which was originally started by Robert Siekmann. Over the past 20 years, the ISLJ has aimed to be a truly international journal that addresses global topics in sports law while keeping the highest academic standards.

With this background, the conference facilitated discussions and exchanges over six differently themed panels on international sports law’s most pertinent issues and gave participants wide opportunities to engage with one another. Additionally, this year’s edition also had the great honor of hosting two distinguished keynote speakers, Moya Dodd and Ulrich Haas, who were able to share their wealth of experience and knowledge with the conference participants.

The following report aims to give an overview of the ISLJ Conference 2019 to extract and underline the fundamental ideas raised by the different speakers.More...

International and European Sports Law – Monthly Report – August and September 2019 - By Thomas Terraz

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

Another Russian Doping Crisis? Inconsistencies Uncovered in the Data from the Moscow Lab

Storm clouds are brewing once more in the Russian Doping Saga, after several inconsistencies were uncovered by WADA from data retrieved from the Moscow Laboratory. More specifically, a certain number of positive tests had been removed from the data WADA retrieved from the Moscow Laboratory compared to the one received from the original whistleblower. WADA launched a formal compliance procedure on 23 September, giving three weeks for Russian authorities to respond and provide their explanations. WADA’s Compliance Review Committee is set to meet on 23 October in order to determine whether to recommend declaring Russia non-compliant.

Russian authorities are not the only ones now facing questions in light of these new revelations. Criticism of WADA’s decision to declare Russia compliant back in September 2018 have been reignited by stakeholders. That original decision had been vehemently criticized (see also Edwin Moses’ response), particularly by athlete representative groups.

The fallout of these data discrepancies may be far reaching if Russian authorities are unable to provide a satisfying response. There are already whispers of another impending Olympic Games ban and the possibility of a ban extending to other sports signed to the WADA Code. In the meantime, the IAAF has already confirmed that the Russian Athletes would compete as ‘authorised neutral athletes’ at the World Athletics Championship in Doha, Qatar.

Legal Challenges Ahead to Changes to the FIFA Football Transfer Market

FIFA is set to make amendments to its player transfer market that take aim at setting new boundaries for football agents. These changes will prohibit individuals from representing both the buying and selling club in the same transaction and set new limits on agent commissions (3 percent for the buying club and player representative and 10 percent for the selling team). FIFA is already in the process of creating a central clearinghouse through which all transfer payments would have to pass through, including agent commissions. FIFA will be making a final decision on these proposed changes at the FIFA Council meeting on 24 October.

If these proposed changes are confirmed, they will almost certainly be challenged in court. The British trade organization representing football agents, Association of Football Agents, has already begun its preparations for a costly legal battle by sending a plea to its members for donations. It claims that it had not been properly consulted by FIFA before this decision had been made. On the other hand, FIFA claims that ‘there has been a consultation process with a representative group of agents’ and that FIFA kept ‘an open dialogue with agents’. Regardless, if these proposed changes go through, FIFA will be on course to a looming legal showdown.

CAS Public Hearing in the Sun Yang Case: One Step Forward for Transparency?

On 20 August, 2019, the Court of Arbitration for Sport (CAS) announced that the hearing in the appeal procedure of the Sun Yang case will be held publicly. It will be only the second time in its history that a public hearing has been held (the last one being in 1999, Michelle Smith De Bruin v. FINA). WADA has appealed the original decision of the FINA Doping Panel which had cleared Sun Yang from an alleged anti-doping rule violation. The decision to make the hearing public was at the request of both parties. The hearing is set to take place November 15th and is likely to be an important milestone in improving the CAS’ transparency.

Sun Yang, who has already served a doping ban for a previous violation in 2014, has also been at the center of another controversy, where Mack Horton, an Australian swimmer, refused to shake hands and stand on the podium with Sun Yang at the world championships in Gwangju. More...

Caster Semenya’s Legal Battle Against Gender Stereotypes: On Nature, Law and Identity - By Sofia Balzaretti (University of Fribourg)

Editor's note: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in International Law. In addition to research in human rights and feminist legal theory, she has also carried out some research in legal philosophy and on the relationship between gender and the law.

 

The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626). More...

International and European Sports Law – Monthly Report – June and July 2019 - By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

The European Court of Justice finds that rule of a sports association excluding nationals of other Member States from domestic amateur athletics championships may be contrary to EU law

On 13 June 2019, the European Court of Justice (ECJ) delivered a preliminary ruling at the request of the Amtsgericht Darmstadt (Local Court Darmstadt, Germany) filed in the course of the proceedings involving Mr Daniele Biffi, an Italian amateur athlete residing in Germany, and his athletics club TopFit based in Berlin, on the one hand, and the German athletics association Deutscher Leichtathletikverband, on the other. The case concerned a rule adopted by the German athletics association under which nationals of other Member States are not allowed to be awarded the title of national champion in senior amateur athletics events as they may only participate in such events outside/without classification. The ECJ’s task was to decide whether or not the rule in question adheres to EU law.

The ECJ took the view that the two justifications for the rule in question put forward by the German athletics association did not appear to be founded on objective considerations and called upon the Amtsgericht Darmstadt to look for other considerations that would pursue a legitimate objective. In its judgment, the ECJ analysed several important legal questions, including amongst others the applicability of EU law to amateur sport or the horizontal applicability of European citizenship rights (for detailed analysis of the judgment, please see our blog written by Thomas Terraz).

Milan not featuring in this season’s edition of Europa League following a settlement with UEFA

On 28 June 2019, the Court of Arbitration for Sport (CAS) rendered a consent award giving effect to a settlement agreement between UEFA and the Milan Football Club, under which the Italian club agreed to serve a one-year ban from participation in UEFA club competitions as a result of its breaches of UEFA’s financial fair play regulations over the 2015/2016/2017 and the 2016/2017/2018 monitoring periods, while the European football’s governing body agreed to set aside previous decisions of the Investigatory and Adjudicatory Chamber of its Club Financial Control Body which had found Milan guilty of the respective breaches.   

This was not the first intervention of the CAS related to Milan’s (non-)compliance with UEFA’s financial fair play regulations. In July 2018, the CAS annulled the decision of the Adjudicatory Chamber of the UEFA Club Financial Control Body of 19 June 2018 which was supposed to lead to the exclusion of the Italian club from UEFA club competitions for which it would otherwise qualify in the next two seasons (i.e. 2018/2019 and 2019/2020 seasons). Following such intervention of the CAS – which concerned the 2015/2016/2017 monitoring period – it may have appeared that Milan would eventually manage to escape a ban from participation in UEFA club competitions for breaches of UEFA’s financial fair play regulations. However, Milan’s case was again referred to the Adjudicatory Chamber of the UEFA Club Financial Control Body in April 2019 – this time its alleged breaches of UEFA’s financial fair play regulations concerned the 2016/2017/2018 monitoring period – and such referral apparently forced Milan into negotiations with UEFA which led to the settlement agreement ratified by the CAS.      

Swiss Federal Tribunal gives Caster Semenya a glimmer of hope at first but then stops her from running at the IAAF World Championships in Doha

Caster Semenya’s legal team brought an appeal to the Swiss Federal Tribunal in late May against the landmark ruling of the CAS which gave the IAAF the green light to apply its highly contentious Eligibility Regulations for Female Classification (Athlete with Difference of Sexual Development) preventing female athletes with naturally elevated levels of testosterone from participating in certain athletic events unless they take medication to supress such levels of testosterone below the threshold of five nmol/L for a continuous period of at least six months. The appeal yielded some positive partial results for Caster Semenya early on as the Swiss Federal Tribunal ordered the IAAF on 3 June 2019 to suspend the implementation of the contested regulations. However, the Swiss Federal Tribunal overturned its decision at the end of July which means that Caster Semenya is no longer able to run medication-free and this will most likely be the case also when the 2019 IAAF World Athletics Championships kick off in Doha in less than one month’s time. The procedural decisions adopted by the Swiss Federal Tribunal thus far have no impact on the merits of Caster Semenya’s appeal.More...

Book Review - Football and the Law, Edited by Nick De Marco - By Despina Mavromati (SportLegis/University of Lausanne)

 Editor's Note: Dr. Despina Mavromati, LL.M., M.B.A., FCIArb is an Attorney-at-law specialized in international sports law and arbitration (SportLegis) and a Member of the UEFA Appeals Body. She teaches sports arbitration and sports contracts at the University of Lausanne (Switzerland) and is a former Managing Counsel at the Court of Arbitration for Sport.


This comprehensive book of more than 500 pages with contributions by 53 authors and edited by Nick De Marco QC “aims to embody the main legal principles and procedures that arise in football law”. It is comprised of 29 chapters and includes an index, a table of football regulations and a helpful table of cases including CAS awards, UEFA & FIFA Disciplinary Committee decisions and Football Association, Premier League and Football League decisions. 

The 29 chapters cover a wide range of regulatory and legal issues in football, predominantly from the angle of English law. This is logical since both the editor and the vast majority of contributing authors are practitioners from England.

Apart from being of evident use to anyone involved in English football, the book offers additional basic principles that are likely to be of use also to those involved in football worldwide, including several chapters entirely dedicated to the European and International regulatory framework on football: chapter 3 (on International Federations) gives an overview of the pyramidal structure of football internationally and delineates the scope of jurisdiction among FIFA and the confederations; chapter 4 explains European law and its application on football deals mostly with competition issues and the free movement of workers; and chapter 29 deals with international football-related disputes and the Court of Arbitration for Sport (CAS).

In addition to the chapters exclusively dealing with international football matters, international perspectives and the international regulatory landscape is systematically discussed – in more or less depth, as the need might be – in several other chapters of the book, including: chapter 2 on the “Institutions” (from governing bodies to stakeholders groups in football); chapter 6 on the FIFA Regulations on the Status and Transfer of Players (RSTP); chapter 8 dealing with (national and international) player transfers; chapter 11 (on Third Party Investment) and chapter 16 on Financial Fair Play (mostly discussing the UEFA FFP Regulations); chapter 23  on disciplinary matters (very briefly discussing the disciplinary procedures under FIFA and UEFA Disciplinary rules); chapter 24 on domestic and international doping-related cases in football, with an overview of the CAS jurisprudence in this respect; and finally chapter 23 on corruption and match-fixing (with a very short description of the FIFA and UEFA regulations).

Furthermore, the book offers extensive chapters in less discussed – yet of high importance – football topics, including: chapter 13 on image rights and key clauses in image rights agreements; chapter 14 on taxation (referring also to taxation issues in image rights and intermediary fees); chapter 15 on sponsoring and commercial rights, with a guide on the principal provisions in a football sponsoring contract and various types of disputes arising out of sponsorship rights; chapter 17 on personal injury, discussing the duty of care in football cases (from the U.K.); and chapter 18 on copyright law and broadcasting (with short references to the European law and the freedom to supply football broadcasting services).

Some chapters seem to have a more general approach to the subject matter at issue without necessarily focusing on football. These include chapters 27 (on mediation) and 22 (on privacy and defamation), and even though they were drafted by reputable experts in their fields, I would still like to see chapter 27 discuss in more detail the specific aspects, constraints and potential of mediation in football-related disputes as opposed to a general overview of mediation as a dispute-resolution mechanism. The same goes for chapter 22, but this could be explained by the fact that there are not necessarily numerous football-specific cases that are publicly available. 

As is internationally known, “football law” is male-dominated. This is also demonstrated in the fact that of the 53 contributing authors, all of them good colleagues and most of them renowned in their field, only eight are female (15%). Their opinions, however, are of great importance to the book due to the subject matter on which these women have contributed, such as player contracts (Jane Mulcahy QC), player transfers (Liz Coley), immigration issues in football (Emma Mason), broadcasting (Anita Davies) or disciplinary issues (Alice Bricogne).

The book is a success not only due to the great good work done by its editor, Nick De Marco QC but first and foremost due to its content, masterfully prepared by all 53 authors. On the one hand, the editor carefully delimited and structured the scope of each topic in a logical order and in order to avoid overlaps (a daunting task in case of edited volumes with numerous contributors like this one!), while on the other hand, all 53 authors followed a logical and consistent structure in their chapters and ensured an expert analysis that would have not been possible had this book been authored by one single person.  

Overall, I found this book to be a great initiative and a very useful and comprehensive guide written by some of the most reputable experts. The chapters are drafted in a clear and understandable way and the editor did a great job putting together some of the most relevant and topical legal and regulatory issues from the football field, thus filling a much-needed gap in the “football law” literature.

Can a closed league in e-Sports survive EU competition law scrutiny? The case of LEC - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.


1.     Introduction

The organizational structure of sports in Europe is distinguished by its pyramid structure which is marked by an open promotion and relegation system. A truly closed system, without promotion and relegation, is unknown to Europe, while it is the main structure found in North American professional sports leagues such as the NFL, NBA and the NHL. Recently, top European football clubs along with certain members of UEFA have been debating different possibilities of introducing a more closed league system to European football. Some football clubs have even wielded the threat of forming an elite closed breakaway league. Piercing through these intimidations and rumors, the question of whether a closed league system could even survive the scrutiny of EU competition law remains. It could be argued that an agreement between clubs to create a completely closed league stifles competition and would most likely trigger the application of Article 101 and 102 TFEU.[1] Interestingly, a completely closed league franchise system has already permeated the European continent. As outlined in my previous blog, the League of Legends European Championship (LEC) is a European e-sports competition that has recently rebranded and restructured this year from an open promotion and relegation system to a completely closed franchise league to model its sister competition from North America, the League Championship Series. This case is an enticing opportunity to test how EU competition law could apply to such a competition structure.

As a preliminary note, this blog does not aim to argue whether the LEC is a ‘real’ sport competition and makes the assumption that the LEC could be considered as a sports competition.[2]

More...



I’m A Loser Baby, So Let’s Kill Transparency – Recent Changes to the Olympic Games Host City Selection Process - By Ryan Gauthier (Thompson Rivers University)

Editor's Note: Ryan Gauthier is Assistant Professor at Thompson Rivers University in Canada. Ryan’s research addresses the governance of sports organisations, with a particular focus on international sports organisations. His PhD research examined the accountability of the International Olympic Committee for human rights violations caused by the organisation of the Olympic Games.


Big June 2019 for Olympic Hosting

On June 24, 2019, the International Olympic Committee (IOC) selected Milano-Cortina to host the 2026 Winter Olympic Games. Milano-Cortina’s victory came despite a declaration that the bid was “dead” just months prior when the Italian government refused to support the bid. Things looked even more dire for the Italians when 2006 Winter Games host Turin balked at a three-city host proposal. But, when the bid was presented to the members of the IOC Session, it was selected over Stockholm-Åre by 47 votes to 34. 

Just two days later, the IOC killed the host selection process as we know it. The IOC did this by amending two sections of the Olympic Charter in two key ways. First, the IOC amended Rule 33.2, eliminating the requirement that the Games be selected by an election seven years prior to the Games. While an election by the IOC Session is still required, the seven-years-out requirement is gone.

Second, the IOC amended Rule 32.2 to allow for a broader scope of hosts to be selected for the Olympic Games. Prior to the amendment, only cities could host the Games, with the odd event being held in another location. Now, while cities are the hosts “in principle”, the IOC had made it so: “where deemed appropriate, the IOC may elect several cities, or other entities, such as regions, states or countries, as host of the Olympic Games.”

The change to rule 33.2 risks undoing the public host selection process. The prior process included bids (generally publicly available), evaluation committee reports, and other mechanisms to make the bidding process transparent. Now, it is entirely possible that the IOC may pre-select a host, and present just that host to the IOC for an up-or-down vote. This vote may be seven years out from the Games, ten years out, or two years out. More...


A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

 

1.     Introduction

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions. More...

International and European Sports Law – Monthly Report – April and May 2019. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

Caster Semenya learns that it is not always easy for victims of discrimination to prevail in court

The world of sport held its breath as the Secretary General of the Court of Arbitration for Sport (CAS) Matthieu Reeb stood before the microphones on 1 May 2019 to announce the verdict reached by three arbitrators (one of them dissenting) in the landmark case involving the South African Olympic and world champion Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the conclusion that the IAAF’s regulations requiring female athletes with differences of sexual development to reduce their natural testosterone level below the limit of 5 nmol/L and maintain that reduced level for a continuous period of at least six months in order to be eligible to compete internationally at events between 400 metres and a mile, were necessary, reasonable and proportionate to attain the legitimate aim of ensuring fair competition in female athletics, even though the panel recognised that the regulations were clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For the time being, this appears to be a good move since the tribunal ordered the IAAF at the beginning of June to suspend the application of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run medication-free.

 

Champions League ban looms on Manchester City

On 18 May 2019, Manchester City completed a historic domestic treble after defeating Watford 6-0 in the FA Cup Final. And yet there is a good reason to believe that the club’s executives did not celebrate as much as they would under normal circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club Financial Control Body (CFCB) had decided to refer Manchester City’s case concerning allegations of financial fair play irregularities to the CFCB adjudicatory chamber for a final decision. Thus, the chief investigator most likely found that Manchester City had indeed misled UEFA over the real value of its sponsorship income from the state-owned airline Etihad and other companies based in Abu Dhabi, as the leaked internal emails and other documents published by the German magazine Der Spiegel suggested. The chief investigator is also thought to have recommended that a ban on participation in the Champions League for at least one season be imposed on the English club. The club’s representatives responded to the news with fury and disbelief, insisting that the CFCB investigatory chamber had failed to take into account a comprehensive body of irrefutable evidence it had been provided with. They eventually decided not to wait for the decision of the CFCB adjudicatory chamber, which is yet to be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.

 

The Brussels Court of Appeal dismisses Striani’s appeal on jurisdictional grounds

The player agent Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction to entertain his case targeting UEFA’s financial fair play regulations. On 11 April 2019, the respective court dismissed his appeal against the judgment of the first-instance court without pronouncing itself on the question of compatibility of UEFA’s financial fair play regulations with EU law. The court held that it was not competent to hear the case because the link between the regulations and their effect on Mr Striani as a player agent, as well as the link between the regulations and the role of the Royal Belgian Football Association in their adoption and enforcement, was too remote (for a more detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the European Court of Justice and the European Commission as both these institutions had likewise rejected to assess the case on its merits in the past.

 

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Asser International Sports Law Blog | Anti-Doping in Times of COVID-19: A Difficult Balancing Exercise for WADA - By Marjolaine Viret

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Anti-Doping in Times of COVID-19: A Difficult Balancing Exercise for WADA - By Marjolaine Viret

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).

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