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Published: Fri, 02 Feb 2018
WADA’s whereabouts system
WADA’s “whereabouts system” – athletes’ price to pay?
An abstract of the latest developments
„Winning isn’t everything – it’s the only thing!” This famous maxim, widely attributed to American football coach Vince Lombardi, underlines a sportsmen’s ambition to achieve the best results in competition. If one internalises this sentence it is in a certain, but admittedly, in a very abstract kind of way understandable that athletes try everything, even prohibited methods, to realize victory and success. The idea of enhancing performance illegally is almost as old as sporting competitions themselves. Nevertheless, it is cheating and contrary to the “spirit of sports” and in general in opposition to all the values sport provides. For this reason the anti-doping-fight is vital in nowadays world of sport.
In the last decade since its founding, WADA, as the institutionalised anti-doping-body, has been the driving force in this combat. It finally has established a complex system of rules and regulations to harmonize coordinate and upgrade national and international anti-doping programs on a global level. Through its latest achievement the WADA Code 2009 (introduced in January) the worldwide Anti Doping Organisations (ADOs) are operating on a new level. Media often accuse “doping-hunters” to be one step behind the cheaters and their newest methods. However, the new Code gives excellent evidence for the latest initiatives and developments to fight this massive and steadily increasing problem. One major achievement is the harmonisation of the “whereabouts system” of the new Code which will be analysed in detail on the following pages.
The adoption of the new Code brought up some questions and concerns about specific legal aspects in relation to whereabouts and the way the rules should be carried out. Prominently, FIFA, the world governing body of football, criticised the rules as a system of prejudice in which all sportspersons are “suspected of doping and therefore accused”. This more or less qualified statement of FIFA’s president Sepp Blatter is just one aspect, and will probably not be helpful for a legal analysis. Though, it shows the current excitement in relation to this issue. The aim of this paper is to analyse the relevant provisions in the Code and investigate its proportionality, practicability and efficiency from different perspectives.
Whereabouts in the WADA Code 2009
WADA Code 09
A WADA press release confirmed that in May 2009 the Code has finally been accepted by all Olympic sports. This constitutes a major step towards a harmonization of fundamental anti-doping principles. The Code as the basic and universal document of the World Anti Doping Program is essential for a worldwide course of action. Alongside, the International Standards and the Models of Best Practice and Guidelines developed over the last decade shape the practical implementation of the anti-doping rules. All the different levels of anti doping-rules have been established to govern the conditions of the way the sport is played. Their deeper objective is the promotion of what is understood by the “spirit of sport”. Therefore, in relation to scope and characteristics of the body of rules they may be characterised as “purely sporting rules”.
ADOs, Athletes and other Persons are responsible for implementation or adherence of the anti-doping program. The three “elements” of the code also constitute different levels of norms and accordingly different implications for the signatories. Rules and principles provided in the code are compulsory in relation to its substance and conversion. Also the second level of rules (“International Standards”) is mandatory and necessary for a technical and operational compliance with the code. The “Models of Best Practice and Guidelines” as third level only constitute recommendations.
For a long time, there has been a lack of a common legal definition of the term “doping” in international sports. Global sports organisations had their own definitions of what was understood by the term doping and what actually constituted a doping offense. However, as a result of the broad acceptance of the WADA Code through Sports Governing Bodies (SGBs)/International Federations (IFs) and national Governments Articles 1 and 2 of the Code have become the standard provisions. Thus, doping in the sense of the Code is “defined of one or more anti-doping rules violations set forth in Article 2.1 through 2.8”. Obviously, the presence of a prohibited substance, just as well as the use or attempted use by an athlete of a prohibited substance or prohibited method fall under this definition. However, doping practices in sport made it necessary to widen the definition of what constitutes doping and doping offenses over the last years. In this context, the so called Out-of-Competition Testing has become a core point of the WADA program. Therefore, the Code in force provides a harmonized regime of Out-of-Competition Testing and clarifies what constitutes a violation of those rules.
The idea behind whereabouts rules is closely linked to the latest developments in sport and its major problem “doping”. Nowadays, tests during competitions (in-competition-testing) are by far not sufficient to ensure “clean”, drug free sports competitions. Methods of athletes, trainers and doctors to enhance performance are well-thought-out. In this context, the term “systematic” doping is often mentioned. Prohibited substances and methods are mostly employed in phases of hard training in order to support recovering processes or strengthen physical capacity. In this regard, no advance notice out-of-competition testing is a logical and probably the only efficient way to fight doping entirely. The whole system would not work if sportsmen would be informed about the testing in advance. Therefore, it is necessary that out of competition controls are conducted without notice to athletes. Moreover, to ensure a working testing system it is necessary to provide doping-controllers with some essential information, in particular about their location. And that is what makes whereabouts rules that important in the new WADA code. Over years, the systems of out-of-competition testing has been organised in various ways depending on the controlling systems of IFs (International Federations) or NADOs (National Anti-Doping Organisations). In the Code 2009, for the first time, a harmonized system was introduced.
Whereabouts in the Code and Standards
WADAs new whereabouts system was the result of an intensive review of the Code and the associated International Standards and a two year consultation period, where different opinions and positions of stakeholders in sport were collected. As we will see later on, for different reasons the new rules made waves throughout the whole professional sports world and even political institutions, like the EU Commission, got involved. The criticism resulted in further changes. Thus, it is necessary to present in a few lines the relevant provisions in the Code and its detailed embodiment in the International Standards and the Guidelines.
To establish a harmonized system for out-of-competition testing WADA had to determine (i) the group of athletes to be tested, (ii) the kind of whereabouts information to be provided and (iii) the circumstances which result in anti-doping violations:
Registered Testing Pools
As a first step and to ensure an efficient testing system, it was necessary to limit the number of athletes to be tested. WADA, however, only determines a framework rule in this relation. It imposes IFs and NADOs to establish two kinds of registered testing pools. IFs have to lay down criteria for an International Registered Testing Pool, which includes, according to these criteria, international top-athletes. The National Registered Testing Pool, in contrast, is related to athletes who fall under criteria established by NADOs. In the International Standard of Testing (IST) WADA provides an informative basis (“general principle”) which includes “(…) athletes over which the NADO has jurisdiction that have been included in an international Registered Testing Pool; Athletes who are part of national teams in Olympic, Paralympic or other sports of high national priority (or who may be selected for such teams); and Athletes who train independently but perform at Olympic/Paralympic or World Championship level and may be selected for such events.” Therefore, once again it must be notified that WADA does not directly assign the persons to be tested. Only IFs and NADOs are responsible to establish relevant characteristics and select a significant/meaningful circle (pool) of athletes who are part of WADA’s whereabouts system.
Those sportspersons are subject to the whereabouts filling requirements and have to provide ADOs with detailed information. The fillings have to be made available to NADOs and/or IFs quarterly in the Anti-Doping Administration and Management System (ADAMS). According to the IST initially some general information about the athlete’s residences and his agenda in the following three months is required. This contains, firstly, details and a confirmation that other potential testing Authorities (ADOs) have access to his/her whereabouts fillings. Secondly, addresses of all locations where the athlete is residing (e.g. home, hotels) as well as carrying out regular activities (e.g. work, training, studying, and school). Thirdly, schedules of all regular activities and competitions during that time have to be added.
Apart from this general part, and most important for the doping controls, a 60-minute time slot between 6 a.m. and 11 p.m. for every day has to be termed. The athlete must be available for testing personnel at a specific spot and has to guarantee an unproblematic test procedure through detailed whereabouts information. The athlete may delegate his duty to provide whereabouts fillings to a third party via written notice. However, in any case the registered athlete continues to be ultimately and personally responsible for accurate and correct details. As the agenda of professional sportsperson may be sometimes quite unsteady and changeable (e.g. forthcoming in competitions) whereabouts information has to set down the expected location for the relevant times. In case, changes in the athlete’s schedule occur he/she or the respective third party has to update details and ensure accessibility.
Violations of whereabouts requirements
Referring to Article 2.4 of the code, violations of anti-doping rules in relation with out-of-competition testing may be the result of two different circumstances: a failure to file required whereabouts information or a missed test. A Filing Failure may, on the one hand, be ascertained when an ADO is able to determine insufficiency of the information itself and, on the other hand, if an athlete may not be located outside the 60-minute time slot as a result of insufficient information. However, if an athlete may for the same reasons not be located inside the 60-minute time slot, it constitutes Missed Test. Any combination of three missed tests or filing failures, within eighteen month from the first offence, results in an anti-doping rule violation.
In this respect it is necessary to mention once again that the athlete remains ultimately responsible at all times for providing accurate and complete whereabouts fillings and being available for testing. This applies to all sports including team sports, and also in case an athlete delegates his/her duty to make the fillings to a third party. The delegation to a third party shall not be a justification for an accusation of a filling failure or a missed test. This may be seen in a line or according to the strict liability rule, one of the basic legal principles in the anti-doping fight. Otherwise, the athlete could “avoid accountability for his/her whereabouts for Testing”.
General remarks – Does the whereabouts system work?
Now that the theoretical basics of the systems are pointed out it is worth looking at the practical side before the strong criticism WADA has to face is analysed in detail. As mentioned above, the necessity of out-competition testing is unquestionable in the scope for a clean sport. However, different opinions and positions have come up over the last months. There are statements which clearly support WADA’s initiatives and new provisions as an important step in the fight against anti-doping. This view is not only followed by Politicians, ADO’s, IF’s and SGBs but also by athletes who are themselves affected by the strict rules. Even in cycling, probably the sport with the worst doping-reputation at the moment, athletes are arguing for such a complex test system to establish a level playing field.
Athletes who were convicted of a doping violation often argue that they have been controlled several times without being tested positively. Their argument is that doping cheaters steadily develop new ways of doping and the testing system is not efficient enough.However, the results of the test made after last year’s Tour de France and Olympic Games that doping controllers are close on the cheaters heels. The complex system of out-of-competition testing, which is part of the so-called intelligent testing, is another important measure. Nowadays, athletes know that no competition takes place without doping controls. To be honest, sports men/women would be stupid to participate in an event drugged up to the eyeballs with illegal substances. Thus, the ability to localise and test athletes during the whole year, in periods of training or regeneration is that important.
Obviously, at the moment, the negative aspects of the system enjoy more media coverage than the question if the system works or not. As mentioned, issues of data protection, human rights and certain exceptions from the rules are raised in the current dispute between stakeholders in sports. It is hardly possible to analyse the effectiveness after a half year. Yet, it is necessary to analyse critical points so far to develop a fair system which serves the purpose of the anti-doping fight and does not go beyond what is necessary.
Criticism and Positions
Even if whereabouts rules are principally seen as a “key weapon in the fight against drugs in sport” the opposition on its embodiment in the new Code has been immense. There are several points which have been mentioned, especially in connection to proportionality and practicability of the rules, the related data protection regulations and their applicability for team sports. These frequent points of criticism are going to be analysed in the following sections. Latest developments have shown that in particular three influential parties stand in the centre of the debate: the EU Commission and its data-protection working group, FIFA, and the athletes as main addressee of the rules.
Article 29 Data Protection Working Party (WP) about whereabouts
The WP and its Opinion on the WADA Code
The Article 29 Data Protection Working Party is an independent EU advisory body on data protection and privacy. Its legal foundation is set up in Article 29 of the Directive 95/46/EC. Primarily the Working Party’s tasks are to provide expert opinion and advise EU institutions, ensure coherent application of legal principles and issue recommendations to the public and (EU) institutions in matters of data protection and privacy. Expert opinion on data protection in relation to doping has already been requested by the European Commission’s Directorate for Education and Culture (DG EAC) in 2008, when the first draft of the International Standard on the Protection of Privacy (ISPPPI) was analysed. Yet, various changes in WADA’s regulations made it necessary to provide a second opinion in April 2009 on the current standards in force. The WP investigates all “privacy issues in the context of the fight against doping in sport”, consequently, also on whereabouts rules.
Initially, one important point with regard to the characteristics of the WP and its competences in this particular field has to be made. The WP is, primarily, an EU internal advisory body without any decisive or assertive capacities. Neither the directive nor the WPs Rules of Procedure authorizes the WP to investigate internal rules of a worldwide, non-governmental organisation without expanding the literal meaning of its tasks. Responsibilities are merely restricted to the examination of governmental legislation and its implementation. However, in relation to the (contractually based) Code and its standards the WP carries out a general advisory competence. This goes definitely beyond its jurisdiction. Albeit, the “legal pressure” on WADA through the WP’s opinion may be questionable, the practical influence appears on a different sphere. The recommendations and ideas offered in the document detect weaknesses of the system and stimulate the sports political discourse on this particular topic.
The general position of the WP on the WADA code and the ISPPPI issued in both opinions has principally been a critical one. Some of the recommendations from the first opinion have been integrated in the Privacy Standard in force since January 2009 (ISPPPI January 2009). However, from the WP’s perspective those changes have not gone far enough. Thus, in the second opinion it repeated its major concerns on privacy issues. Once again, critical points were particularly mentioned in relation to the level of data protection established through the ISPPPI. This included detailed questions on missing or unclear definitions of several terms and various reservations in relation to the handling of personal information.
In the first opinion the WP generally criticised that certain provisions of the WADA Code do not comply with the fundamental principles for the protection of privacy and personal data in the EU. The modified ISPPPI explicitly stated that the standards should primarily be a minimum set of rules. National legislations may constitute stricter rules which have to be applied by ADOs. The specific data of athletes is stored and transferred to Quebec (Canada) where the database is located. Therefore, WADA and its database system ADAMS are subject to the Canadian law. Data protection in the private sector, consequently relevant for the present case, is established by the Quebec Charter of Human Rights and Freedoms, the Civil Code of Quebec and the Act respecting the protection of personal information in the private sector. According to the Quebec Commission on Access to Information this legislation complies with the fundamental principles of the Directive 95/46 EC.
Although the WP has recognised the established minimum standard and WADAs effort, in its eye there are still a number of problems in relation with the use of ADAMS occur and specific provisions conflict with European law. As shown in the forthcoming part, the main example of this paper, whereabouts rules and its application is one of these questionable parts of the Code. However, it has to be mentioned that in the meanwhile new ISPPPIs (ISPPPI June 2009) have been developed and went into force the 1st of June 2009. This document has already been recognised by the EU Conference on Anti-Doping in Athens in May 2009. The Education and Culture DG, responsible for sport, has greeted the progress made in the relevant field and the cooperation of WADA.
The WP on whereabouts
The WP’s critique on whereabouts rules in the second opinion formed an important section of the whole document and reached a massive echo in the media. The WP rightly pointed out that only athletes who are registered by their IF or NADO are under constraint of WADA’s whereabouts rules. Those sports persons have to provide accurate, current location information which should be provided to ADOs through ADAMS. The WP generally supports the idea of effective out-of competition testing. However, it also made clear which provisions in relation to whereabouts could go too far in the anti-doping fight.
In this context the experts referred in the second opinion to the Council of Europe Antidoping Convention where basic principles of adequate anti-doping controls are specified. Tests should be “carried out at appropriate times and by appropriate methods without unreasonably interfering with the private life of a sportsman or sportswoman”. With regard to whereabouts rules this provision should guarantee that only relevant and proportionate personal information is processed to the WADA database. This should happen in compliance with the data protection principles and general legal principles of necessity and proportionality. Thus, the real intention of taking out-of-competition tests and collecting relevant information should always be taken into account. The WP pointed out that in all cases it should be avoided to interfere in the “athletes’ privates lives or reveal sensitive data on the and/or third parties (e.g. relatives)”.
With regard to the handling of relevant, proportionate information the WP also emphasises on the importance to accomplish an effective risk analysis to ensure a proportional testing system. Risk analysis should primarily include the selection of eminently “doping-prone” athletes. Nonetheless, also the extent of required whereabouts information and the level athletes are competing in should be taken into account. In this regard, the WP welcomes the fact, that WADA does not call for a disproportionate 24/7 whereabouts system which could reveal athletes’ sensitive data in an evitable dimension. The 60-minute time slot is for all athletes irrespective the level they are competing in a proportionate method. However, with regard to the filling requirements of regular activities other than competition and training and disclosure of residences on each day the type of athletes should be distinguished. From the WP’s perspective it could be disproportionate for other athletes than high-level athletes to fulfil the same requirements. The necessity of processing this kind of personal data with regard to lower level athletes is questionable. ADOs should, therefore, differentiate between different levels of athletes and enlighten them about what kind of information is obligatory or facultative. In this respect, it is also desirable that athletes are informed about the consequences of a (filling) failure.
Questions were also raised in relation to the legal standard and the use of ADAMS. As mentioned above, uncertainties with regard to the standard of protection already brought up in the first opinion were repeated once again. The WP criticised that there are no detailed remarks in the code or the standards whether WADA and ADAMS are subject to a legislation which ensures an adequate level of protection. In their view it is still unclear whether Canada (Quebec) can provide appropriate legislation. Another point is that personal data has to be available for ADO’s all over the World. Thus, transfers of personal data from the EU into third countries pose another threat for privacy protection. IFs or NADOs may be subject lower levels of protection in the particular countries. A transfer in a third country has to be made according to Article 25 and 26 of the Directive. The criteria of article 26 (1) have to be met or additional safeguards to ensure an adequate protection have to be appended. In this context, the WP pointed out that this is not the fact for all ADAMS transfers. The requirements of Art 2 (h) of the Directive, which is the relevant EU law provision, are not met. The only justification could be if the anti-doping fight would constitute “an important public interest” in the sense of article 26 (1), (d) and be identified as such by national legislations subject to EU law. Moreover, the WP demanded an appropriate legal framework for all international data transfers.
Finally, also retention periods in general and specifically in relation to whereabouts information were considered in the WP’s expertise. Article 2.4 of the Code provides that doping violations are the result of three missed tests/filling failures within an eighteen-month period. Generally, information like test results, use exemptions, or the records of doping violations will retain for a minimum of eight years, which is considered as an appropriate time span. This period is generally accepted and the Court of Arbitration for Sport (CAS) has developed the principle that every new offence during that time will count as a second offence. With regard to whereabouts information the WP claims to change the data retention policy WADA is carrying out. Whereabouts “information shall be used exclusively for purposes of planning, coordinating or conducting testing; and shall be destroyed after it is no longer relevant for these purposes”. This provision of the Code explicitly lays down the guidelines for the retention of whereabouts information. An exception, under consideration of a doping-violation in Article 2.4 of the Code, may only be justified for a period of 18 months if a filling failure/missing test occurs. In any other case personal information should be deleted as, in the WP’s eyes, no valid argument could justify a longer period to retain these specific data. Although, the WP considers the arguments for keeping relevant information for a period of eight years, it suggests revising these provisions and excluding certain types of information as irrelevant.
WADA’s Position and external Opinions
Generally speaking, WADA’s comments on WP’s position have been almost as critical as the two opinions on the Code and standards themselves. WADA criticised that the WP made various (factual, legal) errors when analysing the opinion. Moreover, the WADA was disappointed by the experts’ confrontational attitude because it expected constructive support instead. According to the information on WADA’s website, offers to the WP for an intensive debate, to clarify critical points and to ensure a better dialogue, have not been accepted. In WADA’s view, this might be the reason for some alleged misapprehensions made in the opinion. Nonetheless, an enhanced discussion between WADA, ADO’s, EU authorities and the WP itself is to be expected.
As regards content WADA consistently repeats that the Code and the Standards do not conflict with EU law. The relevant provisions and regulations should only constitute a minimum standard to protect personal data and privacy of sports persons who are subject to the Code. It particularly criticises that the WP on the one hand does indeed consider the ISPPPI as minimum set of rules but on the other hand does not analyse the provision with respect to this principle. WADA expressly mentioned that fundamental data protection principles of domestic law and EU law have to be respected. Moreover, according to the standard of protection, WADA requested external expertise which confirmed that the relevant Canadian legislation is applicable and fulfils the standards of protection according to the Directive 95/46 EC. Additionally, there are other legal foundations which could justify the whereabouts regime with regard to the standard of data and privacy protection. E.g. athletes voluntarily participate in sports and are by no means forced to accept WADA’s doping programme and the standard of data protection with regard to ADAMS and the transfer of data. This expressed consent to the data transfer (also to a third country) constitutes an adequate legal basis. However, an external expert suggests data-transfer-agreements or alternatively an approval of the transfer by national data protection agencies as acceptable legal basis. This would support the WP’s opinion with regard to data transfer in a third country with lower standards of protection, and fulfil the demand of guarantee in article 26 of the Directive.
Apart, from this general debate, WADA has also been disappointed from the WP’s challenge of well established anti-doping rules (e.g. eight-year statute of limitations period) and the restrictive interpretation to EU data protection law. For instance, it seems, as the anti-doping fight does not serve a “public interest” unless “carried out by parties specifically designated by national law”. This, obviously, would delimitate the SGBs and, in particular, WADA’s competences in this connection. According to WADA, this is the result of a too restrictive interpretation followed by the WP through the whole opinion. For instance, with regard to international data transfer, the directive states that “the transfer is necessary or legally required on important public interest grounds”. Thus, it is a question of interpretation. And the way the WP interprets this provision and similar ones is, in WADA’s eyes, too restrictive.
With regard to the whereabouts regime WADA reflects on the core issues of relevant, personal information, risk analysis and retention periods – mainly by referring to the provisions in the Code and the standards to explain its position. For instance, WADA pointed out that ADO’s very well distinguish between top athletes and others when requesting localisation information. The IST lays down the criteria for athletes in the testing pools and demands an appropriate risk analysis for the selection. Therefore, not all athletes are subject to the strict set of rules. WADA also insists on type, regularity and volume of information athletes have to provide to ADAMS. Risk analysis and distinction according to the level sports persons are competing in is reasonable. At the top level it is absolutely necessary to receive consistent information to ensure an effective fight against doping. WADA’S opinion on retention periods is just as well indisputable. Firstly, they are well established over the last years and part of the body of anti-doping rules. Secondly, the periods are necessary to identify testing efforts regarding high risk athletes. These particular points are in any case necessary to ensure an effective out-of competition testing.
WADA constantly repeats that the considered rules are well thought out and satisfy the principle of proportionality as well as adequacy and practicability. The development of privacy protection standards may proof that WADA does not act arbitrary to achieve its objectives. Even more, it tries to include different positions and external opinions as shown in the latest developments of the Code and the standards. Although the WP’s opinions are not binding, they influence positions of stakeholders in sport, primarily athletes and cast a damning light on WADA’s work. WADA complained that the critique provided in the opinion the WP does not support the anti-doping system but undermine previous efforts. In particular, the WP has not offered any “constructive solutions” for contentious areas. This and the fact that the WP has not stepped in a constructive dialogue a priori are further points of criticism. Nevertheless, WADA has recognised the critique faced by the WP and other parties. As a result it initiated new ISPPPIs (major changes are described below) which has taken effect on 1st of June.
FIFA’s critique and Athlete’s statements
FIFA – an exception for Team sports?
The conflict with FIFA over the last months was the issue which has brought WADA’s whereabouts regime a lot of attention in the media. FIFA’s aim was to achieve a so-called “lex football”, in other words an exception, with regard to whereabouts information. The football body signed the new WADA Code in May 2008 but made clear that, in particular, with regard to whereabouts certain rules have to be revised. The Code (respectively the standards) offers specific rules and testing guidelines for team sports to reflect its different character. Team sports, such as football, are “carried out on a team basis rather than on an individual basis, with most of the activities carried out in pursuit of that sport being conducted on a collective basis
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