Transparency should prevail on sports doping

Choosing to publicise such cases should be considered both necessary and proportionate to their aims of promoting fair competition in sport and deterring athletes from taking performance-enhancing substances.

Judges at the Court of Justice of the EU (CJEU) should therefore think twice about endorsing a non-binding opinion issued by a legal adviser to the court last week.

In that case, which the CJEU judges will hand down a formal ruling on in the months ahead, the central question is whether sports governing bodies can operate a blanket rule, whereby they can automatically disclose the names of athletes found by anti-doping agencies to be responsible for doping offences, on their website. In his opinion, advocate general Dean Spielmann said such an approach should be considered contrary to the General Data Protection Regulation (GDPR).

If the CJEU judges follow the opinion, it will deprive sports bodies of the use of an important tool for driving ‘clean’ sport in many cases and potentially dissuade them from disclosing the names of doping offenders at all, owing to the administrative headache they would be faced with to justify disclosure. It could also have significant unintended consequences for athletes.

The question of whether the names of doping offenders should be made public online is one that engages competing rights and interests – in athletes’ case, the protection of their personal data, and, in the case of sports authorities and anti-doping bodies, their interest in promoting ‘clean’ sport by being able to publicise sanctions imposed on athletes found to have doped and, in turn, deter others from similar infringements.

In this case, Austrian law providing for online disclosure of the names of doping offenders has been challenged, with the advocate general of the view that sports bodies and anti-doping authorities must consider the necessity and proportionality of disclosure on a case-by-case basis.

Guidance offered in the opinion suggests that the necessary and proportionate test for disclosure would likely only be met rarely, such as where high-profile athletes are involved.

If this case-by-case approach prevails, there would be a grey area in terms of how to determine whether disclosure is justified. While many organisations will be familiar with the idea of undertaking data protection impact assessments – of the kind Pinsent Masons routinely supports clients – those assessments would need to be so granular to mitigate risks of being sued that it is foreseeable that sports bodies would consider them simply to be too burdensome to perform. The effect of that would be the operation of a blanket rule entirely the opposite of the one being challenged in this case, whereby they choose never to disclose the names of doping athletes. The chilling effect this would have would be to the detriment of everyone who champions the cause for competitive fairness in sport.

Advocate general Speilmann has suggested a middle ground whereby sports governing bodies and anti-doping authorities can publish pseudonymised data only – that being data that, while still constituting personal data, is part-anonymised so that individuals cannot easily be identified from it. A range of unintended consequences could arise from this.

Publication of pseudonymised data could cause mass speculation over the identify of the doping offender – and associated anxiety for clean athletes where their own characteristics or circumstances correspond to the pseudonymised indicators.

For example, an innocent injured athlete that is not seen competing during a period when a doping offender might be expected also to be absent from the sport, might feel compelled to confirm publicly that they are not the person referred to online. That situation could especially arise in a team sport environment or in circumstances where, for instance, a doping athlete’s name and age was not disclosed but their nationality and the sport they participate in was.

In my view, the clear legitimate aims that sports bodies pursue in disclosing the identify of doping offenders supersede the rights athletes enjoy around the protection of their personal data, in every case. A uniform rule on the side of transparency should be considered both necessary and proportionate in a legal sense – and would be much easier and simpler to administer for sports bodies and anti-doping authorities.

A version of this article was first published by CityAM.