laffer_publicaciones_3-11-2

Spanish doping regulations, privacy and the WADA Code

Spain recently implemented antidomping regulations which atemp to tackle doping in sport whilst preserving constitutional rights to privacy. Rodrigo García and Mario Resino, of Cuatrecasas, Gonçalves Pereira, highlight inconsistencies between the requirements of the World Anti-Doping Code and the Spanish regulations, and how they ilustrate the argument between those that think the fight against doping should trump constitutional rights and those keen to protect those freedoms.

Following the example of other European countries, Spain has proceeded in recent years to incorporate into its national legislation anti-doping regulations which derive from and transpose the WADA anti-doping regulations. In this regard, in 2006 the Organic Act on Health Protection and the Fight against Doping in Sport nº 7/2006 of 21 November was passed. As the regulatory development of that Act, four Royal Decrees have been passed which set out its contents and scope, the latest one being published on May 8, 2009, with the aim of “regulating doping test processes.”

This regulation is the object of intense controversy at both national and international levels due to the existence in its articles of certain limitations on the control exercised by the federations and the WADA concerning out-of-competition tests and the whereabouts information which the athletes must supply to their respective national and/or international federations.

Specifically, two regulations display the greatest inconsistency with the WADA World Anti-Doping Code:

– Article 47.1, which provides that “Out-of-competition doping tests may not be initiated or conducted during a time period between 11:00 p.m. and 08:00 a.m. the following day. During these hours, no out-of-competition doping tests or health inspections which are not justified on medical grounds may be initiated or conducted in Spanish territory, regardless of whether they have been ordered by an administrative authority, sports federation or international body”, later adding (Article 47.3) that “An athlete’s refusal to be subjected to doping tests during this time period will not incur any liability whatsoever.” It should be recalled that the WADA obliges athletes to be at the disposal of the testing inspectors 24 hours a day and to fix an hour each day (between 6:00 a.m. and 11:00 p.m.) in which they undertake to be in a specific place.

Article 45.1.c) of the same regulations provides that, although athletes must provide quarterly information on their whereabouts, this information (i) does not include any place whatsoever in which they are going to be located, but only their habitual residence and training place, and (ii) the information need Following the example of other European countries, Spain has proceeded in recent years to incorporate into its national legislation anti-doping regulations which derive from and transpose the WADA anti-doping regulations. In this regard, in 2006 the Organic Act on Health Protection and the Fight against Doping in Sport nº 7/2006 of 21 November was passed. As the regulatory development of that Act, four Royal Decrees have been passed which set out its contents and scope, the latest one being published on May 8, 2009, with the aim of “regulating doping test processes.”

This regulation is the object of intense controversy at both national and international levels due to the existence in its articles of certain limitations on the control exercised by the federations and the WADA concerning out-of-competition tests and the whereabouts information which the athletes must supply to their respective national and/or international federations.

Specifically, two regulations display the greatest inconsistency with the WADA World Anti-Doping Code:

– Article 47.1, which provides that “Out-of-competition doping tests may not be initiated or conducted during a time period between 11:00 p.m. and 08:00 a.m. the following day. During these hours, no out-of-competition doping tests or health inspections which are not justified on medical grounds may be initiated or conducted in Spanish territory, regardless of whether they have been ordered by an administrative authority, sports federation or international body”, later adding (Article 47.3) that “An athlete’s refusal to be subjected to doping tests during this time period will not incur any liability whatsoever.” It should be recalled that the WADA obliges athletes to be at the disposal of the testing inspectors 24 hours a day and to fix an hour each day (between 6:00 a.m. and 11:00 p.m.) in which they undertake to be in a specific place.

– Article 45.1.c) of the same regulations provides that, although athletes must provide quarterly information on their whereabouts, this information (i) does not include any place whatsoever in which they are going to be located, but only their habitual residence and training place, and (ii) the information need does not alter the rights and obligations of the signatories in relation with other prior binding agreements, and in any case explicitly declares that the validity and application of the World Anti-Doping Code is subject to its articles being coherent with the Community regulations (Directive 95/46/EC, among others) and the national legislation of each Member State.

The Working Party relates this admonition to the controversial aspects of the WADA’s regulations and its ADAMS (Anti-Doping Administration and Management System), an online database which coordinates anti-doping activities throughout the world. The Working Party believes that:

– The strict controls established by the WADA regulations in regard to the whereabouts requirements contravene, in certain aspects, the Convention of the European Council (1989) if out-of-competition tests are not conducted at the appropriate moment and with appropriate methods or constitute an unreasonable interference in the athlete’s life .

– Similarly, the question is raised whether the WADA’s system of control and maintenance of athletes’ personal data infringes data protection regulations, when these regulations, moreover, have not been entirely harmonised at the EC level.

Some international federations, like FIFA or UEFA, also criticise the regulations on whereabout requirements, arguing that there is no sense in the WADA regulations being applied in collective sports in the same way as in individual disciplines, by means of individual controls on each athlete, because in collective sports the athletes could be located by way of the daily activity of the team, without the individual athletes being subject to daily control of their privacy. Other initiatives, like that of 65 Belgian athletes in bringing the WADA regulations before the High Court of Justice of the European Union under the argument that they contravene the EU’s privacy laws, indicate that in these respects the WADA regulations show signs of unconstitutionality.

However, even though it may be thought that the Spanish regulations relating to the whereabouts requirements will be imposed in Spain without further difficulty in lieu of the WADA regulations in the disputed aspects described above, the truth is that from now on Spanish athletes (or foreign athletes based in Spain) will find themselves in a delicate legal situation, since the WADA has a coercive instrument in the form of the sports federations and its own capacity to appeal to the Court of Arbitration for Sport (CAS).

Thus, in the event of an athlete who complies with the Spanish regulations and does not provide, for example, details of his/her short journeys or refuses to undergo an out-of-competition test at 2:00 a.m., the WADA or his/her international federation can theoretically ignore the Spanish domestic regulations and impose on him/her a federative sanction, with the risk of not being permitted to compete for a period of two years. In this case we are sailing into the tempestuous waters of the application of internal domestic regulations to the federative world.

These national regulations are often ignored by the international federations and even by the CAS, which as an arbitrational body has declared in some of its verdicts (e.g., Club Danubio v. Internazionale FC and FIFA) that it cannot enter into the question of evaluating domestic or European Union legislation in relation with federative regulations, when the latter (federative regulations) are clear and not subject to interpretations.



Uso de cookies

“Utilizamos cookies propias y de terceros que analizan el uso que se hace de nuestra web para mejorar nuestros contenidos y optimizar su navegación. Si continúa navegando por nuestro sitio web, consideramos que acepta su uso. Para cambiar la configuración u obtener más información pinche aquí.

ACEPTAR