22 January 2018

ECHR judgment fails to consider alternatives to ‘whereabouts’

The European Court of Human Rights (ECHR) has held that the public interest in maintaining the ‘whereabouts’ requirements within the World Anti-Doping Agency’s (WADA) Anti-Doping Administration and Management System (ADAMS) outweighs any restriction of athlete rights under the European Convention of Human Rights. However, it appears that the judgment has not considered whether less egregious alternatives are available.

‘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’, read a summary of the judgment (click here to download). ‘It found that 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’.

The case began when the French government issued Order No. 2010-379 on the health of athletes, which brought the French Sports Code into line wit the principles enshrined in the World Anti-Doping Code. A group of French athlete representative organisations, grouped under the Fédération Nationale des associations et des syndicats Sportifs (FNASS), appealed to the Conseil d’Etat for the annulment of provisions requiring athletes selected by France’s national anti-doping agency (AFLD) to file whereabouts information. Separately, French cyclist Jeannie Longo filed similar appeals in 2012 and 2013.

However, in similar fashion to a report into the possible use of geolocation technology (GPS) in anti-doping being prepared by WADA, it appears that the ECHR did not consider whether alternatives are available. Under the ADAMS system, which is adapted medical software bought by WADA in 2005, athletes selected to be part of a Registered Testing Pool (RTP) are required to file their location for one hour each day three months in advance (although this can later be amended). If there are three instances where Doping Control Officer (DCO) cannot locate them at their stated location – or if they fail to correctly file whereabouts data – three times in one year, they face a two-year ban.

The PARADISE Project utilises a wearable GPS positioning device to initially give an athlete’s rough location to a Doping Control Officer, who receives the exact location only once they are within four kilometres of the athlete. It also features designated private areas (such as graveyards) and allows athletes to add private areas where they cannot be located with the highest accuracy. The DCO would then have to call the athlete to agree on a meeting point.

WADA’s ADAMS stores data on the location of every athlete within an RTP for the next three months. Such data is accessible to any ADO that has responsibility for testing the athlete. This means that large amounts of data regarding athlete locations are potentially being accessed by ADOs around the world. This is a massive security risk, as the Fancy Bears attacks have highlighted. PARADISE eliminates that issue by only revealing the athlete’s exact location to the DCO responsible for conducting a test on a specific date. There is no centrally-held location database.

Despite this, WADA is currently finalising a report produced by its Ethics Panel, which has concluded that GPS technology should not be used in anti-doping. ‘The potential invasion or privacy and the data security threats are real’, read a presentation at last year’s Play The Game conference delivered by Mike McNamee of WADA’s Ethics Panel. ‘Currently, it seems likely that the technology could result in more harm than benefit to athletes, the sport and the anti-doping movement. Considering the impact on privacy, data security issues, the societal ramifications and pragmatic considerations, at this time the use of geolocation should neither be mandated as a tool for disclosing whereabouts, nor implemented on a voluntary basis.’

It is understood that WADA’s report was prompted by comments made by Mike Miller of the World Olympians Association (WOA) at a Westminster Forum conference last year, and did not consider technology developed by the PARADISE Project. Miller was forced to defend his comments suggesting that sport should consider microchipping athletes after alarmist articles in The Guardian and The Daily Telegraph obliterated any sensible debate about how sport could make the lives of athletes easier by embracing new technology, which was Miller’s point, as The Sport Integrity Initiative reported. It would appear that WADA and the ECHR are following the same reasoning.

The ECHR judgment was welcomed by WADA. “Today is a good one for doping-free sport”, said WADA’s Director General, Olivier Niggli, in a statement. “Accurate Whereabouts information is crucial to the success of anti-doping programs, which are designed to maintain the integrity of sport and to 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.”

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