The legality of the anti-doping whereabouts rules: an analysis of the FNASS v. France human rights case

Published 14 March 2018 | Authored by: Natalie St Cyr Clarke

Whereabouts rules, requiring certain athletes to provide information about their location at a given time, 1 have been a source of contention in the sports community since their introduction in the 2003 World Anti-Doping Code2 (Code).3

Whereabouts rules were revised in the 2009 Code4 but nonetheless drew criticism from various quarters; high-profile athletes criticised the revisions,5 and UEFA and FIFA issued a statement rejecting individual whereabouts requirements.6 Also in 2009, a group of 65 Belgian athletes challenged whereabouts requirements on the basis of a breach of European Union privacy laws,7 and cited violations of Article 8 of the European Convention on Human Rights (ECHR). 8 This challenge was ultimately unsuccessful in its attempt to rid the Belgian anti-doping regime of whereabouts rules.9

On 18 January 2018, the European Court of Human Rights (ECtHR) issued their decision in Federation Nationale des Sydicats Sportifs (FNASS) and others v. France.10 It is the most recent case to consider the legality of whereabouts rules and illustrates their necessity in the fight against doping. This article reviews the decision.

 

Summary and background

Applications to ECtHR

On 14 April 2010, the French government’s Order No. 2010-37911 (the Order) concerning the health of athletes, brought domestic rules in line with the 2009 Code. The Order, ratified by Law No. 2012-15812 in February 2012, was codified in the Sports Code.13 The Order stated that, in addition to doping controls during training or sporting events, athletes in a “target group”, a Registered Testing Pool in the language of the Code (RTP), were also subjected to doping controls “in any place chosen in agreement with the athlete, allowing the control to be carried out with due regard to his privacy and private life, including, at his request, at his home” (the Rules).14

The first application (48151/11), received by the ECtHR on 23 July 2011, was filed by FNASS, and players syndicates and unions from rugby, football, handball and basketball. Ninety-nine other applicants were individual professional sportsmen.

Some of these applicants had applied to the Conseil d’État,15 the final arbiter in France of cases relating to, among other things, executive power and independent public authorities, complaining that the system was “particularly intrusive”.16 In particular, prior declaration to the Agence française de lutte contre le dopage (AFLD) and the possibility of being submitted to doping controls outside of sporting events and outside of training, i.e. when an athlete is no longer at the disposal of his employer, infringed their freedom of movement, which impacted their right to a normal family life. These applicants also complained about the infringement of the principle of equality, because whereabouts requirements were reserved only for the RTP. The complaint was rejected by the Conseil d’État.17

The second application (77769/13), received by ECtHR on 6 December 2013, was filed by Jeannie Longo, a French cyclist and 13-time world champion, who claimed to have been tested over 1200 times during her career.18

By decision of the director of AFLD’s testing, in March 2008, Ms Longo was added to the RTP and therefore subject to individual controls. At that time, the duration of registration in the RTP was unlimited. However, the Order set a time limit of one year for inclusion in the RTP and renewal of membership was subject to an adversarial interview with the athlete.19 Ms Longo’s membership in the RTP was renewed on several occasions. Ms Longo was eventually excluded from the RTP in 2015.

In December 2012 and May 2013, Ms Longo complained about the excess powers of the AFLD before the Conseil d’État, which she argued was contrary to Article 8 ECHR. The Conseil d’État dismissed her complaints.20

In both applications to the ECtHR, it was alleged that the whereabouts requirements imposed on the RTP athletes for the purpose of conducting unannounced out-of-competition doping controls violated their rights guaranteed by (a) Article 8 ECHR, and the first application also alleged (b) a violation of Article 2 of Protocol No 4 to the ECHR.21

 

ECtHR Decision

Article 8 ECHR

Article 8 ECHR provides that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.” Interference by a public authority can only be justified according to the second paragraph of Article 8 ECHR if such interference is

  1. in accordance with the law

  2. necessary in a democratic society, and

  3. in the interests of, among other things, the protection of health or morals, or the protection of the rights and freedom of others.

The ECtHR noted that doping controls outside of sporting events and periods of training are likely to be at home. The ECtHR also noted that the target group had to provide a public authority with precise and detailed information on their places of residence and daily movements. It also noted athletes’ choices were limited because they must also be present and available every day for one hour. This necessity for transparency and availability limits the personal autonomy of the applicants and, as such, was sufficient for the ECtHR to determine that whereabouts requirements undermined the quality of the applicants’ private lives. Consequently, the Rules were a violation of Article 8(1) ECHR, subject to any justification pursuant to Article 8(2) ECHR.22

Whether the infringement could be justified, the ECtHR determined that the interference is “prescribed by law” within the meaning of Article 8(2) ECHR. It was not disputed that the Rules were prescribed by the Order. However, the applicants had argued decisions of the AFLD were not laws because the AFLD is not an institution with the authority to issue accessible and precise rules. The ECtHR opined that the Order provides sufficient information to athletes about their inclusion in the RTP, which is always preceded by an adversarial phase and may be the subject of an appeal to the Conseil d’État. Thus, there were adequate protections against arbitrariness. Furthermore, the ECtHR stated the precise and detailed provisions of the Order were taken from the Code.23

With regard to whether the government’s aims were legitimate, the parties disputed the objectives of the whereabouts requirements. The government invoked the legitimate aim of protecting public health and morality. By contrast, the applicants claimed that the harmful effects of doping had not been established, the health of professional athletes was already protected and the ethics invoked served as a façade to protect the economic interests of sport or to stigmatise some athletes.24

The ECtHR immediately dismissed the argument that economic interests prevailed in the fight against doping. However, the ECtHR opined that the health of professional sportsmen and also amateurs, particularly young people, was enshrined in various international texts, such as the Council of Europe’s Anti-Doping Convention25 and the Code.26

Although the government referred to the fairness of sports competitions regarding the protection of morality, the ECtHR considered this to be more closely connected to “the protection of the rights and freedom of others”. The use of prohibited substances was not only an unfair disadvantage to other competitors of the same level but was also a dangerous incitement for young people to use prohibited substances and deprived spectators of fair competition. Consequently, the government’s aims were legitimate.27

Assessing whether the Rules were necessary in a democratic society, the ECtHR reiterated that it must be a “pressing social need”. In other words, the reasons given must be relevant, sufficient and proportionate to the legitimate aim pursued. In order to determine the balance of interests, the ECtHR first considered the dangers of doping and the existence of a community view at European and international level.

The ECtHR referred to studies demonstrating the harmful and potentially serious consequences of the misuse of performance enhancing substances and how certain doping methods are only detectable for short periods of time, unlike the effects on sports performance. 28 The evidence showed a real threat to the physical and mental health of athletes29 and the reach of doping of disturbing proportions in the amateur sports world, especially among young people.30 The ECtHR therefore gave weight to the impact of doping in professional sport on the amateur sports world as it is “widely accepted that young people identify with high-level athletes who are models that they will follow”.31 This was therefore an additional reason for legitimising the requirements imposed on the applicants; the ECtHR was convinced of the health and public health concerns, especially in light of the greater harmonisation of anti-doping strategies by, among others, WADA, UNESCO and the Council of Europe.32

The ECtHR noted the revision of the Code in 2015 has shown a trend toward strengthening and intensifying out-of-competition doping controls that do not only concern athletes in the RTP.33 It also noted the cross-border dimension of high-level sport makes international cooperation in the field of anti-doping essential.34 Accordingly, there is a community of European and international views on the need for unannounced doping controls.35

Nonetheless, states must enjoy a margin of appreciation due to the diversity of national frameworks in the implementation of these harmonised standards. 36 In this regard, France, which has ratified the UNESCO Convention,37 has made a very clear choice to bring its domestic laws in line with the Code.38

In light of the above, the ECtHR was not convinced that the interests of the applicants outweighed the aims of the government. Whilst an athlete’s family and home life may be undermined by the possibility of doping controls, the athletes themselves determine the location and timing. Lastly, in view of the developments of increasingly sophisticated methods of doping and the very short time periods during which prohibited substances can be detected, the ECtHR found the applicants did not show that controls limited to the places of training and sporting events would suffice to achieve the legitimate objectives. Accordingly, the ECtHR agreed with the government that whereabouts requirements pursuant to norms of international law should be regarded as justified.39

Article 2 of Protocol No. 4 to the ECHR

Article 2 of Protocol No. 4 to the ECHR protects the right to freedom of movement, both within the territory of a state and the freedom to leave that country. The same justifications for limiting such rights apply as per the rights of Article 8 ECHR.

The ECtHR determined that the Rules do not violate Article 2 of Protocol No. 4 to the ECHR. Although athletes are obliged to stay in one place for an hour, this place is chosen by the athlete. Informing the AFLD of the time and location is a matter of privacy and not of surveillance.

 

Commentary

Federation Nationale des Sydicats Sportifs (FNASS) and others v. France is an important high-level affirmation of not only the legitimacy of whereabouts rules themselves but also of the fight against doping in general. Whilst not particularly ground-breaking with regard to the latter, it is nonetheless another victory for staunch advocates of anti-doping. The forensic unpicking of the main human rights objection to anti-doping and whereabouts rules will likely silence critics of the rules. At a bare minimum, the case will serve as a persuasive and de facto binding precedent40 for other forums, e.g. national courts or the Court of Arbitration for Sport.

In observing the wider trend of subjecting not only “target group” athletes to out-of-competition testing and determining that whereabouts rules are just one means to a very important end, the ECtHR correctly acknowledged that the fight against doping is a multifaceted problem requiring engagement and effort of not only regulators but the athletes themselves. Athletes should embrace the inconvenience of periodically providing whereabouts information to ensure the fairness of competition and to establish a particular environment and culture for younger athletes.

Consequently, if the outcome of this case assuages doubters, future and emerging athletes will acquire and accept the mindset from an earlier age that potential inclusion in a RTP and being subject to out-of-competition testing is part and parcel of being an athlete; simply an inconvenience to endured. That is not to say that there should be no further discussion on the matter; any discussion that leads to the increased efficacy of out-of-competition doping controls is a necessary and welcome one.

The ECtHR also correctly took into consideration that this fight is bolstered and underpinned by the international harmonisation of anti-doping rules. In this regard, the author agrees that disparate and/or discretionary rules would only serve to undermine the global effort in the battle against doping, given, as the ECtHR alluded to, the often international and multi-jurisdictional reach of many sports competitions.

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About the Author

Natalie St Cyr Clarke

Natalie St Cyr Clarke

Natalie St Cyr Clarke is Legal Affairs Manager at FIBA (International Basketball Federation) and Co Chair of the Sports Law Subcommittee of the International Bar Association. Natalie is a New York qualified lawyer with numerous years of experience in sports arbitration and dispute resolution, having previously worked for Libra Law in Lausanne, Switzerland.
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