By Prof Dr Ian Blackshaw
A legal challenge brought before the European Court of Human Rights (ECtHR) against the WADA (World Anti-Doping Agency) anti-doping ‘whereabouts rule’, which was first introduced in 2004 and subsequently amended to make the rule less intrusive and more user-friendly, on the grounds that it infringes article 8 of the European Convention on Human Rights (ECHR), which safeguards a person’s right to respect for private and family life, has been rejected by the Court.
The present version of the rule basically requires certain athletes to indicate to Anti-Doing Authorities for one hour each day (this was reduced down from the original twenty-four hours a day) when and where they will be available to undergo a random out-of-competition doping test.
The challenge was brought by the four-times Olympic cycling medallist, Jeannie Longo and the national sports unions of France that represent basketball, football, handball and rugby union. The original case was brought in 2011 and rejected by the French Supreme Court and then appealed to the ECtHR.
However, the ECtHR held on 18 January 2018 that the rule was in the public interest in the global fight against doping in sport and its terms were proportionate for achieving this purpose.
In welcoming this decision of the ECtHR, WADA stated as follows:
“Accurate Whereabouts information is crucial to the success of anti-doping programs, which are designed to maintain the integrity of sport and protect clean athletes. The only way to perform out-of-competition testing is by knowing where athletes are, and the way to make it most effective is to be able to test athletes at times when cheats are most likely to use prohibited substances or methods.
While the rules inevitably create some inconvenience for athletes as they must divulge a certain amount of personal information and keep it up to date, it is clear that this is entirely proportionate to the wider benefits for global sport.”
The ECtHR held that:
“Taking account of the impact of the whereabouts requirement on the applicants’ private life, the court nevertheless took the view that the public interest grounds, which made it necessary, were of particular importance and justified the restrictions imposed on their Article 8 rights.
… the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control.”
It is clear from the above arguments and remarks, that the original WADA anti-doping ‘whereabouts rule’ would not have passed muster under the provisions of Article 8 of the ECHR. In that respect, therefore, the rule has been moderated.
It is a case of the ends justifying the reasonable means and, as WADA has pointed out, elite athletes must be prepared to undergo a certain degree of inconvenience in their personal lives to ensure that, pursuant to the ‘whereabouts rule’, they are able to compete on a level playing field!
Prof Dr Ian Blackshaw may be contacted by e-mail at ‘firstname.lastname@example.org’