Imagine, as a condition of your ability to earn a livelihood, you were required not only to submit much of your sensitive personal data to the authorities (including a more-or-less complete medical history), but you also had to tell them exactly where you were going to be every single day of the year – at least three months in advance. Then imagine that the authorities stored all this information on a database and made it available to organisations all over the world, who could track you whenever you entered their jurisdiction. This is the reality already facing the world’s elite athletes, who must comply with the rules laid down by the World Anti-Doping Agency (WADA).
The issue has hit the headlines recently with football governing bodies FIFA and UEFA seeking exemptions from WADA’s “whereabouts” rule. The rule, part of WADA’s revised World Anti-Doping Code, states that WADA must have at least 3 months’ notice of an athlete’s whereabouts for at least an hour every day – both in and out of season or competition times. In defence of the rule, WADA argues (sadly, with some justification) that if athletes are determined to cheat, and know that they will not be tested during a particular period, they will cheat – and the beneficial effects of cheating can last much longer than the period during which a prohibited substance is detectable.
In addition to the whereabouts rule, WADA compiles large amounts of sensitive personal data on athletes (including medical conditions, sexual preferences and changes in gender or nationality) on the “Anti-Doping Administration and Management System” (ADAMS, to its friends), which is accessible to the world’s various anti-doping organisations.
Of course, the world’s sports men and women have nominally given their consent to this collection and sharing of their data. Also, WADA has recently put in place the “World Anti-Doping Code International Standard for the Protection of Privacy”, which has the effect of imposing a minimum standard of data protection compliance on anti-doping organisations in countries whose national laws provide lower levels of protection.
However, the fact remains that the consequence for an athlete of withholding, withdrawing or modifying his or her consent effectively amounts to the end of their sporting career. In those circumstances, consent cannot be said to be freely given nor, under EU law, truly valid.
An EU panel is due to publish its opinion on the legality of the whereabouts rule imminently. Unsurprisingly, reports suggest that, despite sympathy for the motives behind the rule, the likely decision is that it is incompatible with EU law. If that is the decision, it will be interesting to see how WADA responds. If society accepts that the effective testing of athletes for doping offences is a right and necessary thing to do, then WADA and the world’s privacy legislators must find a way of accommodating each other.