In April 2014, the Swedish Gambling Authority (Lotteriinspektionen) warned the organisers of the Stockholm Marathon that it would impose a fine of SEK 2 million (ca. € 221.000) for its sponsorship agreement with online betting operator Unibet. The Authority found that the sponsorship agreement violates §38 of the Swedish Lotteries Act, which prohibits the promotion of gambling services that are not authorized in Sweden.[1] The organisers, however, refused to withdraw Unibet as its sponsor and prominently displayed the Unibet logo at the event, which took place on 31 May 2014. As a result, the organisers of the Stockholm Marathon now face legal action before the Swedish administrative courts.

Source: ASICS Stockholm Marathon 2014

As this case and many others demonstrate, sports organisers, clubs, and individual athletes are insufficiently aware of the challenges that national gambling advertising regulations create for entering into sponsorship deals with gambling operators. But don’t worry; we've got you covered.

National gambling advertising regulations 

In the EU, 28 divergent regulatory frameworks govern the advertising of gambling services through e.g. sponsorship agreements between sports organisers and gambling operators. 

A first category of Member States strictly prohibits any gambling advertising (Estonia, Latvia, Poland, and Lithuania). Sometimes the regulatory frameworks do include a number of notable exceptions, however. In Estonia and Lithuania, for instance, the advertising ban does not apply if only the name of the operator or its logo is used. This creates a legal loophole for e.g. t-shirt sponsorship deals. 

A second category of Member States only prohibits the advertising and/or promotion of unauthorized gambling services (22 Member States). It follows that at least one gambling operator, in many cases the (state-owned) operator who retains a monopoly position, is allowed to advertise its services. Yet even when authorized operators are legally entitled to advertise their services, national gambling advertising regulations may impose certain qualitative (e.g. advertising cannot encourage excessive or uncontrolled gambling) and quantitative restrictions (e.g. TV watersheds). For the most part these restrictions have little bearing on sponsorship. In France and Germany, however, gambling operators are not allowed to sponsor sports events involving minors. 

A third category of Member States has no rules specific to gambling advertising as a result of outdated gambling legislations (Luxembourg and Ireland). 

What are the pitfalls? 

The lack of awareness of sports organisers, clubs, and individual athletes about national gambling advertising regulations can be attributed, at least in part, to the fact that liability pitfalls are often hidden. 

First, the provisions on advertising in the national gambling regulatory frameworks are frequently too vague or ambiguous for practical purposes. More often than not, the regulations make no specific reference to (sports) sponsorship. Consequently, the applicability of the restrictions to sponsorship can only be derived from a broad interpretation of the definition of “advertising”. 

Second, only a few national advertising regulations clarify the extent to which both parties to a sponsorship agreement, i.e. the sponsored party and the gambling operator, can be found liable for breaching the regulations. Only in Denmark and the UK, the relevant rules make it explicit that responsibility also falls on the sponsored parties. 

Third, inconsistencies in the enforcement of the advertising regulations make it even more difficult to anticipate the costs of non-compliance. In many instances, the competences are spread over various authorities (gambling regulators, advertising authorities, consumer protection authorities, police, etc.), which diffuses their responsibilities. Moreover, Member States frequently point to the fact that it is difficult to tackle advertising by foreign, unauthorized online betting operators. 

Yet, as the Swedish case illustrates, there are good reasons not to underestimate the risks. 

Typically an infringement of the prohibition to advertise unauthorized gambling services is considered an administrative offence and will therefore be sanctioned with a fine (which can be substantial, up to € 100.000 or even € 1 million). In various Member States, the sponsored party may even risk criminal prosecution (e.g. in Belgium, Denmark, Finland, Cyprus, Greece, Italy, Malta, and the UK).

International sports events versus patchwork of national regulations 

The potential for conflicting national rules causes even more difficulties for clubs or individual athletes participating in cross-border sports events. By way of illustration, in 2007, the Bavarian authorities (Germany) imposed a fine of € 100.000 on AC Milan for wearing shirts with the name of an authorized operator (Bwin) in a Champions League game against Bayern München. The obvious anomaly is that German sports fans are able to watch home matches of AC Milan and Serie A on television and would therefore already be accustomed to watch the team play with its normal shirt sponsor. 

As EU law currently stands, however, gambling operators and sponsored parties are necessarily confronted with the regulatory burden to comply with 28 different legal requirements. The European Court of Justice has repeatedly held that gambling legislation is one of the areas in which significant moral, religious, and cultural differences exist between Member States. In the absence of harmonization in this field, it is therefore for each Member State to determine the objectives of their policy on gambling and to define, in accordance with its own scale and values, what is required to protect the interests in question.^[2] The fact that one Member State applies stricter rules, such as a general prohibition of gambling advertising, than others does not in itself affect that assessment.[3] 

The problem is exacerbated by the fact that gambling operators are increasingly sponsoring international sports events. For instance, according to the regulations of the European Handball Federation (EHF), every delegation participating in the EHF Champions League must comply with the exclusive sponsorship arrangements of the sports organiser.^[4] For many years the online gambling operator, Bet-at-home, has been one of the main sponsors of the EHF Champions League. The sponsorship deal allows the operator to advertise in all handball arenas in which Champions League games are held. When hosting qualification matches during the 2010-2011 Champions League season, the Polish Handball club Vive Kielce faced a serious dilemma. It had to choose whether to have the advertisements removed, which would mean elimination from the tournament,^[5] or to commit an offence sanctioned by the Polish Gaming Law. The club decided to adhere to the regulations of the EHF and was subsequently sanctioned.^[6] 

Further attention should therefore be paid to the use of technological tools that may offer pragmatic solutions in these cases (e.g. the use of virtual advertising). In any event, if a sports organiser induces participants in their events to infringe national gambling advertising rules, they should arguably be found liable and not the participant that is caught in a catch-22 situation. 

For a detailed overview of the national gambling advertising regulations and their relationship to sports sponsorship, check out our latest EC Study on Sports Organisers’ Rights in the EU, available at http://ec.europa.eu/sport/news/2014/study-on-sport-organisers-rights_en.htm.

[1] http://www.lotteriinspektionen.se/sv/Press/Pressmeddelanden/Stockholm-Marathons-sponsorsavtal-kan-bryta-mot-svensk-lagstiftning/

[2] See e.g. C-34/79 Henn and Darby (1979) ECR 3795, para. 15; C-275/92 Schindler (1994) ECR I-1039, para. 32; C- 268/99 Jany and others (2001) ECR I-8615, para. 56, 90.

[3] EU law, however, precludes national advertising regulations according to which unauthorized gambling services organised in that Member State would be treated differently than unauthorized gambling services organised abroad. See e.g. Joined Cases C-447/08 and 448/08, Criminal proceedings against Otto Sjöberg and Anders Gerdin (2010) ECR I-6921.

[4] European Handball Federation, EURO Regulations applicable as from November 1, 2010, Article 22.

[5] European Handball Federation, Legal Regulations, Article 14.

[6]http://pilka-reczna.przegladsportowy.pl/Pilka-reczna-Vive-kontra-Izba-Celna-Poszlo-o-reklamy,artykul,117769,1,284.html

Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized in sports and nationality issues. He is also Legal Affairs Manager at the Fédération Internationale de Volleyball. Yann is an editor of the ASSER International Sports Law Blog and has previously published on the blog on nationality conundrums at the FIFA World Cup 2014 in Brazil (see here).  

This contribution aims to decipher the relationship between sporting nationality and the Olympic Games. To this end, the author will first define sporting nationality and discuss athletes’ eligibility in national team in the context of the Olympic Games. Then, selected issues in relation with sporting nationality and the Olympic Games (with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated.

Defining sporting nationality at the Olympic Games

Sporting nationality is in essence twofold:

• on the one hand, sporting nationality is the eligibility concept in use within the world of sport to define the participation of athletes in international competitions[1], i.e. sporting events between the members of an international federation or the National Olympic Committees in the context of the Olympic Games[2]; and

• on the other hand, sporting nationality refers to the legal relationship between an athlete and the national governing body for whom he/she is eligible according to the applicable regulations[3]. Each international federation and organizers of multisport events, such as the International Olympic Committee (IOC), maintain their own set of rules[4]. Consequently, an athlete may have as many sporting nationalities as there are governing bodies in his/her sport[5].

Turning now to athletes’ eligibility for national teams, one should acknowledge that this issue has not always been a primary concern for sports governing bodies[6], including for the International Olympic Committee (IOC). For instance, the first three editions of the Olympic Games foresaw the participation of transnational teams, i.e. teams composed of athletes from different countries competing under one flag[7]. This most notably occurred in track and field, rowing, football, polo, swimming and tug of war[8]. The decision of the IOC to impose the creation of one National Olympic Committee per country in order to facilitate the organization of the Olympic Games put an end to this practice as of 1908. That said, the IOC did not regulate sporting nationality at the Olympic Games before 1920[9]. Nowadays, sporting nationality is governed by Rule 41 Olympic Charter 2015 which reads as follows:

“41 Nationality of competitors

1. Any competitor in the Olympic Games must be a national of the country of the NOC which is entering such competitor.

2. All matters relating to the determination of the country which a competitor may represent in the Olympic Games shall be resolved by the IOC Executive.

Bye-law to Rule 41

1. A competitor who is a national of two or more countries at the same time may represent either one of them, as he may elect. However, after having represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognised by the relevant IF, he may not represent another country unless he meets the conditions set forth in paragraph 2 below that apply to persons who have changed their nationality or acquired a new nationality.

2. A competitor who has represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognised by the relevant IF, and who has changed his nationality or acquired a new nationality, may participate in the Olympic Games to represent his new country provided that at least three years have passed since the competitor last represented his former country. This period may be reduced or even cancelled, with the agreement of the NOCs and IF concerned, by the IOC Executive Board, which takes into account the circumstances of each case.

3. If an associated State, province or overseas department, a country or colony acquires independence, if a country becomes incorporated within another country by reason of a change of border, if a country merges with another country, or if a new NOC is recognised by the IOC, a competitor may continue to represent the country to which he belongs or belonged. However, he may, if he prefers, elect to represent his country or be entered in the Olympic Games by his new NOC if one exists. This particular choice may be made only once.

4. Furthermore, in all cases in which a competitor would be eligible to participate in the Olympic Games, either by representing another country than his or by having the choice as to the country which such competitor intends to represent, the IOC Executive Board may take all decisions of a general or individual nature with regard to issues resulting from nationality, citizenship, domicile or residence of any competitor, including the duration of any waiting period.”

The connecting factor between an athlete and his/her National Olympic Committee is currently rooted in nationality[10]. The French version of the Olympic Charter refers however to being a “ressortissant” of the National Olympic Committee which is entering the athlete in the Olympic Games. Unfortunately, these two concepts do not necessarily overlap; the term ressortissant may have a broader meaning than nationality[11]. To add another layer of uncertainty, a Court of Arbitration for Sport (CAS) ad hoc Panel has adopted contradictory approaches in this respect:

•  In United States Olympic Committee (USOC) and USA Canoe/Kayak / International Olympic Committee (IOC), the Panel held that the Olympic Charter did not provide for any exception to the nationality requirement[12]; and

• In Angel Perez / International Olympic Committee (IOC), the same Panel held this time that “the word ‘nationality’ in Rule 46 and its Bye-law should be construed broadly. In so far as it is relevant to consider whether a person has lost his or her nationality, the Panel is of the view that a person may be found to have lost it both in circumstances where he or she is de jure or de facto stateless”[13]. Consequently, the Panel found that the athlete had changed his nationality for more than three years and was eligible to represent the United State Olympic Committee in the 2000 Sydney Olympic Games.

To our knowledge, CAS has never discussed the distinction between nationality and “ressortissant” further. This is not to provide certainty to athletes who may enter into a dispute over eligibility in national team.

It should finally be noted that the Olympic Charter does not mandate for the fulfillment of any other eligibility requirements, such as residency, except in the case of a change of sporting nationality. In this specific case, athletes must have to sit out for three years since they last represented their previous national team before being eligible for a second National Olympic Committee[14]. That said, the Olympic Charter stated that the Executive Board may take all decisions of a general or individual nature with regard to issues resulting from nationality, citizenship, domicile or residence of any competitor, including the duration of any waiting period. This clause aims at covering situations in which there is no National Olympic Committee to enter an athlete for instance[15].

Selected issues

The host nation syndrome:

All host nations of the Olympic Games share one common thread: the fear of not performing during “their” event. This is notably due to the fact that the country welcoming the world during the Olympic Games generally receives a certain quota of places in each sport[16], including for sports with little or no local tradition[17]. While certain nations have set up traditional talent detection and training programs in order to grow a new generation of elite athletes in time, others have chosen a completely different route; they either:

• Naturalize athletes; Italy[18], Greece and Australia have acted in such a way ahead of their Olympic Games[19]; or
• Openly advertise participation in the next Olympic Games on the (sporting) market, in particular to their diaspora.

The “Brazilian Rugby Players Wanted” campaign is the latest example of this. It was launched by the Brazilian Rugby Union (“Confederação Brasileira de Rugby”) in 2013 and aims at finding rugby players with a Brazilian passport or Brazilian descent who are currently unknown to the national governing body and who may qualify for its High Performance Program in view of the Rio 2016 Olympic Games.

The Team of Refugee Olympic Athletes:

On 2 March 2016, the IOC Executive Board decided to create a Team Refugee Olympic Athletes. The approach of the IOC was to allow athletes who had fled their country to be directly entered in the 2016 Rio Olympic Games without the need to resort to the National Olympic Committee of their nationality. To date, ten athletes meeting the relevant sporting requirements have been selected to be part of the Team Refugee Olympic Athletes.

Although portrayed as a first, the IOC Executive Board has made use of its powers on multiple occasions to allow the participation of athletes without a country or without a National Olympic Committee:

• 1992 Barcelona Olympic Games: athletes from the Federal Republic of Yugoslavia participated in the Olympic Games as Independent Athletes[20]. They were not allowed to bear the colors of their country due to sanctions of the UN Security Council (i.e. the Federal Republic of Yugoslavia was banned from all international competitions)[21];
• 2000 Sydney Olympic Games: Athletes from East Timor were authorised to participate under the Olympic banner due to the secession of their country from Indonesia[22];
•  2012 London Olympic Games: three athletes from the Netherland Antilles and one from South Sudan were placed under the Olympic flag[23]. The absence of a National Olympic Committee in these countries triggered the decision of the IOC. Athletes from the Netherland Antilles now compete with the Netherlands;
• 2014 Sochi Olympic Games: three Indian athletes marched under the Olympic banner during the opening Ceremony due to the suspension of their National Olympic Committee by the IOC. They were subsequently authorised to bear their own colors following the removal of the ban on their country.

The concept of a Unified Delegation:

The concept of a United Delegation is only in use for North and South Korea[24]. It is similar to a confederation of National Olympic Committees. In other words, they march together at the opening and closing Ceremonies but maintain separate sporting spheres[25]. Consequently, medalists are honored by the flag of their respective National Olympic Committee, not by their common flag. Of note, the North and South Korean National Olympic Committees are currently engaged in merger negotiations. If successful, there would be only one National Olympic Committee for two countries – and this would be unique in the Olympic Movement. The effects of such a merger on Rule 41 Olympic Charter are currently unknown.

[1] TAS 92/80 du 25 mars 1993, B. / Fédération Internationale de Basketball (FIBA), in : Reeb, Rec. I, n° 13 p. 287 ff.

[2] GARRIGUES Christian, Activités sportives et droit communautaire, Thèse (Université Robert Schuman), Strasbourg (S.I.) 1982, p. 569.

[3] “National eligibility rules confine the right to represent a national side and, thus, to participate in international competition: the criteria employed include nationality, place of birth and residence in the territory for a prescribed period of time” [MCARDLE David, Player Quotas, National Eligibility Restrictions, and Freedom of Movement under EU Law, European Union Studies Association (EUSA), Biennial Conference 2003 (8th), March 27-29, 2003, p. 14].

[4] Shachar Ayelet, Picking Winners: Olympic Citizenship and the Global Race for Talent, in : The Yale Law Journal, Vol. 120 (2011), p. 2134; Siekmann Robert, Sport and Nationality : Accelerated Naturalisation for National Representative Purposes and Discrimination Issues in Individual Team Competition under EU law, in : The International Sports Law Journal, 2011/3-4, 2011, p. 87; Wollmann Anna Sabrina, Vonk Olivier, Groot Gérard-René de, Towards a sporting nationality?, in : Maastricht Journal of European and Comparative Law, Volume 22, Number 2, 2015, p. 306.

[5] GUILLAUMÉ Johanna, L’autonomie de la nationalité sportive, in : Journal du droit international, année 138, n° 2/2011, Avril-Mai-Juin 2011, p. 323 ff.

[6] Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit & Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 81.

[7] The existence of transnational teams is however supported by the International Olympic Committee in the context of the Youth Olympic Games. See: Parry Jim, The Youth Olympic Games – Some Ethical Issues, in : Sport, Ethics and Philosophy, Vol. 6, No 2, 2012, p. 144; Wong Donna, The Youth Olympic Games: Past, Present and Future, in : The International Journal of History of Sport, Vol. 28, No 13, 2011, p. 1836.

[8] Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit & Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 81 and references.

[9] Rule 4 Olympic Charter 1920.

[10] WOLLMANN Anna Sabrina, Nationality Requirements in Olympic Sports, Oisterwijk (Wolf Legal Publishers) 2016, p. 59.

[11] Foreign nationals serving in the army of another state or persons under the protection of a sate (i.e. protected persons) are deemed ressortissant of this particular state. See: Weis Paul, Nationality and statelessness in international law, 2ème éd., Alphen an den Rijn – Germantown (Sijthoff & Noordhoff) 1979, p. 7.

[12] CAS ad hoc Division OG 2000/001 dated 13 September 2000, United States Olympic Committee (USOC) and USA Canoe/Kayak / International Olympic Committee (IOC), in : Reeb, Rec. II, p. 600 s., n° 22 ff.

[13] CAS ad hoc Division OG 2000/005 dated 19 September 2000, Angel Perez / International Olympic Committee (IOC), in : Reeb, Rec. II, p. 631, n° 27.

[14] Gillon and Poli conducted a survey during the 2004 Athens Olympic Games, and found that 2,6% of the athletes registered had previously represented another country [Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 59]. This figure is slightly lower than the percentage of players who have changed national affiliation before participating in the 2014 FIFA World Cup [http://www.asser.nl/SportsLaw/Blog/post/blurred-nationalities-the-list-of-the-23-and-the-eligibility-rules-at-the-2014-fifa-world-cup].

[15] Rule 44.2 Olympic Charter 2015 provides that “Only NOCs recognised by the IOC may submit entries for competitors in the Olympic Games”. Accordingly, Beloff et al. note that “[t]his would seem to exclude the possibility of the IOC independently permitting athletes to compete in the Games, but is has been argued that the IOC enjoys a residual discretion to that effect” [Beloff Michael J. QC, Kerr Tim, Demetriou Marie, Beloff Rupert, Sports law, 2^ème éd., Oxford – Portland, Oregon (Hart) 2012, n° 1.72 p. 21].

[16] Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 63.

[17] To avoid any embarrassment, certain international federations, such as the Fédération Internationale de Hockey (FIH), have now reviewed their Host Country Places policy. The host nation is no longer guaranteed a quota and must meet minimum sporting standards in order to enter a team: http://www.fih.ch/media/808384/2014-02-rio-2016-qualification-system-hockey-final.pdf (02.08.2016).

[18] Shachar Ayelet, Picking Winners: Olympic Citizenship and the Global Race for Talent, in : The Yale Law Journal, Vol. 120 (2011), p. 2093.

[19] BAYLE Emmanuel, DURAND Christophe, Sport professionnel et représentation nationale : Quel avenir ?, in : Reflets et Perspectives de la vie économique, Volume 39 (2-3), 2000, p. 164, footnote n° 29; Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 58 and 63.

[20] Chappelet Jean-Loup, L’autonomie du sport en Europe, Strasbourg (Editions du Conseil de l’Europe) 2010, p. 24.

[21] Carrard François, Sports and politics on the international scene, in : Rivista di studi polici internazionali, Vol. 78, No 1, janvier-mars 2011, p. 31.

[22] Grasso John, Mallon Bill, Heijmans Jeroen, Historical Dictionary of the Olympic Movement, 5^ème éd., Lanham (Rowman & Littlefield) 2015, p. 582.

[23] Iorwerth Hywel, Hardman Alun, Rhys Jones Carwyn, Nation, state and identity in international sport, in : National Identities, Vol. 16, n° 4, 2014, p. 330 end note n° 1.

[24] To date, there have been three Unified Delegations in 2000; 2004 and 2008 (MERKEL Udo, The Politics of Sport Diplomacy and Reunification in Divided Korea: One Nation, Two Countries and Three Flags, in : International Review for the Sociology of Sport, vol. 43, no. 3, 2008, p. 298).

[25] Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit & Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 91.

On 24 and 25 October, the Asser Institute will host an advanced professional training co-organised by Ben Van Rompuy and Antoine Duval focused on 'EU competition law and transnational sports governance'. The training is building on their experience acting as legal advisors for the complaint submitted to the European Commission (EC) by two Dutch speed-skaters, Mark Tuitert and Niels Kerstholt, against the International Skating Union (ISU), leading to the first negative decision rendered by the EC against an international sports governing body (SGB).  

The training will consist of: 

• An in-depth introduction to the specific application of EU competition law to transnational sports governance

• Specific sessions on the different (national, European and transnational) processes (both judicial and administrative) through which EU competition law claims can be raised against international SGBs

• A concrete case study during which the group will be divided into teams representing different sides of a competition law claim involving an SGB

• A round-table with  leading experts in EU competition law and sports for an interactive discussion on future developments in this area

[More information and registration HERE]

Why this professional training? 

Transnational sports governance is not neutral, its exercise comes with considerable economic effects and consequences, which can be controversial. In recent years we have witnessed an uptick of challenges on the basis of EU competition law against the governance decisions of international SGBs. In 2017, the European Commission for the first time adopted a decision finding a sporting rule (the ISU’s Eligibility Rules prohibiting skaters from participating in third-party events) in violation of EU competition law. Since then, we have seen a string of decisions by national competition authorities and high-profile private actions being launched against, for instance, UEFA and FIFA by the European Super League Company, football club Royal Antwerp F.C. or football agents. In short, EU competition law has become the main legal avenue through which regulations and decisions of international SGBs are being contested– both from outside the Olympic family and within. It is therefore crucial that sports stakeholders become proficient in the language of EU competition law, in understanding the specificities of its application to transnational sports governance, and in grasping the intricacies of the legal processes that can be used to do so. 

Is this training for you? 

This training is primarily aimed at professionals involved in the field of sports governance, such as legal counsels of SGBs, practicing lawyers active in the sports sector, public servants involved in the enforcement of competition law in the sporting context, and representatives of athletes, clubs and other sports stakeholders.  The advanced training will be both interactive, focusing on open exchanges between experts and participants, and participative, with the preparation of a case study in smaller groups.  

[More information and registration HERE]

Speakers include:

• Prof. Stephen Weatherill
• Prof. An Vermeersch
• Mark E. Orth
• Dr. Ben Van Rompuy
• Dr. Antoine Duval

[More information and registration HERE]

Programme

Day 1 - Tuesday, 24 October

12:30 – 13:00 - Registration

13:00 – 13:30 - Welcome and introduction - Antoine Duval & Ben Van Rompuy

13:30 – 15:00 - How EU competition law applies to transnational sports governance: Key doctrines and cases  - Antoine Duval & Ben Van Rompuy

15:00 – 15:30 Coffee Break

15:30 – 16:30 - Bringing a competition law case against SGBs before the European Commission: Lessons from the ISU case  - Ben Van Rompuy & Antoine Duval

16:30 – 17:30 - Bringing a competition law case against SGBs in national courts: The German experience -  Mark E. Orth

17:30 – 18:00 - Bringing a competition law case against SGBs before the CAS: Opportunities and challenges -  Antoine Duval

19:00 - Dinner

Day 2 - Wednesday, 25 October

9:00 – 12:00 - Case study on FIFA’s Football Agent Regulations and EU competition law - Antoine Duval, Ben Van Rompuy, Mark E. Orth

12:00 – 13:00 Lunch

13:00 – 15:00 - Case study on FIFA’s Football Agent Regulations and EU competition law - Antoine Duval, Ben Van Rompuy, Mark E. Orth, An Vermeersch and Stephen Weatherill

15:00 – 15:30 - Coffee Break

15:30 – 17:00 - Closing discussion on the future of EU competition law and transnational sports governance - Antoine Duval, Ben Van Rompuy, Mark E. Orth, An Vermeersch, and Stephen Weatherill  

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).