In a move that will alarm global anti-doping authorities, the court will be asked to rule whether “whereabouts” breaks European Union privacy laws. ‘Whereabouts’ is the system drug-testers use to track athletes for tests.
“There is no need for all these people to give their whereabouts for the next three months – that’s a draconian measure,” added Kristof de Saedeleer, a Brussels-based solicitor who specialises in sports law. De Saedeleer is acting on behalf of 65 athletes, cyclists, footballers and volleyball players who have been brought together by Sporta, the organisation that looks after the interests of professional sportsmen and sportswomen in Belgium.
The case is aimed at the Flemish regional government, which is responsible for anti-doping in the Dutch-speaking part of Belgium, and results from the government’s hard-line imposition of the World Anti-Doping Agency’s (Wada) updated code on 1 January, 2009. That code, a tightening of testing standards that have been place since 2004, is the framework upon which all anti-doping efforts rest, and whereabouts is perhaps its most potent tool.”
The idea is simple: drug-testers must be able to administer no-notice, out-of-competition tests anytime, anywhere. This is believed to be the only effective deterrent against cheats. To do this, however, the testers must be able to find the athletes – the whereabouts system is the solution. Any athlete on the national testing register (which is effectively any elite athlete in an Olympic or major team sport) must make themselves available to testers for one hour a day, between 0600 and 2300, three months in advance. This is done online and can be updated by email or text message. But failure to be where you said you would be, if the testers come calling, counts as a strike. Three strikes in an 18-month period and you are out, with an automatic ban from competition, as Olympic and World 400m champion Christine Ohuruogu discovered to her cost. Failure to fill out the form correctly – or failure to provide full details of your competition and training schedules, three months in advance – would also count towards your three-strike limit.
A spokesman for Wada, however, rejected this claim, and pointed out that at no point during the two-year review process did any group of athletes express concerns relating to privacy. “In fact, the 2009 international standards for testing were drafted with the protection of athletes in mind by providing appropriate, sufficient and effective privacy protection, taking into account various international and regional data protection laws,” he said. “The requirements were actually reduced (to one hour a day) from the 24/7 requirement previously applied by a number of anti-doping organisations.”
He also stressed whereabouts was a justifiable and proportionate response to the problem it was brought in to address, the endemic cheating that has ravaged the likes of the Tour de France and international track and field. The Belgian challenge is at a very early stage – no ruling is expected until late 2009 – and it has not yet reached the EU-wide level, so fears of a precedent-smashing judgement like the Jean-Marc Bosman ruling, which revolutionised football in 1995, are premature.”