Doping
2008-11-26
An initial draft of the EU Athletes Position Statement on Anti-Doping has been developed and can be read by clicking "more" below.
EU Athletes Position Statement on Anti-Doping
There is a great deal of concern amongst all of the member associations of the European Elite Athletes Association (EU Athletes) about the new WADA Code that is due to come into effect on 1 January 2009. The new Code seriously undermines the rights of professional athletes as both European citizens and employees. Furthermore, some of the key areas of the new WADA Code are of questionable legality.
Athletes associations across Europe are committed to drug free sport and would support a fair and effective drug testing regime that recognises, respects and protects athletes legal rights as both employees and European citizens. Aspects of any regime of doping rules that are not sport specific must be negotiated directly with athlete social partner organisations through either a social dialogue or collective bargaining process.
Complaints
Our member associations have been receiving complaints from our individual members regarding the implementation of the WADA rules by their local NADOs. The following complaints were typical of those received.
A 36 year old athlete with a spotlessly clean doping record reported that he has been tested 8 times already in 2008. Several of these tests took place outside of the workplace. One of them occurred at 730 in the morning after the the doping control official rang the bell waking his entire family including the small children. He was then forced to go with the official into the bathroom, pull his underpants down around his ankles and allow the control officer to witness him urinating into a cup.
Athletes from sports with a higher incident rate have been awakened for tests at 300 am.
An athlete with a spotless doping record reported that he was pulled out of a meeting at his bank. He could not take the test there as he was with his two year old and did not want her to witness the test or to leave her alone while going to the bathroom with the official. He had to cancel the meeting and drive home with the official (doping control officers may not leave the presence of the athletes until the test is taken) before having to submit to the same treatment - pants around the ankles and urination within sight of the official.
Another clean athlete was required to complete a doping test shortly before training. When he could not urinate, the doping control officer was required to accompany the athlete to a team video session, disrupting the work environment.
A prominent clean athlete was notified of her selection as a candidate for a national athletic award shortly before the ceremony was to take place on national television. Due to the short notice, she was unable to change her registration on the WADA location reporting system (ADAMS). When a doping control officer presented himself at her training location she was forced to decide between missing the ceremony or a missed test.
Many team athletes are missing tests due to faulty location reporting by their teams in the ADAMS system. Despite the fact that the individual athletes are not at fault, they are responsible for the missed tests and face automatic suspensions from their chosen professions.
Response
In response to these types of complaints, the 25 member associations of the European Elite Athletes Association (representing approximately 25,000 athletes) made anti-doping its top priority at its annual meeting in 2007. The following issues, directly reflecting the complaints that have been received by individual member athletes, were identified as priority issues by the executive board:
1. Data protection
Our members, as citizens and employees of the European Union are protected, as any other citizen, by EC Directives relating to Data Protection (Directive 95/46/EC).
The Article 29 Data Protection Working Party, in their “Opinion 3/2008 on the World Anti-Doping Code Draft International Standard for the Protection of Privacy” concluded that “it was not yet in a position where it can completely support this Standard, since the minimal requirements included do not appear to reach the minimal standards required by European data protection regulation”.
EU Athletes shares this conclusion and has taken the position on behalf of our members that the WADA Standard needs to be at least as robust as European laws on privacy and data protection.
As emphasised in Point 6 of the Opinion, “any processing must be based on a valid legal ground. The existence of such a legal base has fundamental importance when health data are processed”. The legal ground for the processing of data by WADA is that of “informed consent”. EU Athletes shares the concerns of the Article 29 Data Protection Working Party about the reliance of the code on this basis as, clearly, players have no choice but to give consent if they are to continue their jobs as professional sportsmen and women. As further stated by the Working Group in the Opinion on Article 6.1.:
“According to this provision (Article 2 of the Data Protection Directive), consent is defined as “any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”. The consent to the processing of data collected in the context of the execution of the obligations of the World Anti-Doping Code is neither free nor informed. The sanctions attached to a possible refusal by participants to subject themselves to the obligations of the Code (communication of localisation data, medical anti-doping controls) prevent the Working Party from considering that the consent would be, in any way, given freely.”
This statement seemingly puts the entire WADA Code on shaky legal ground. Despite this, the EU Athletes member associations recognise that an effective drug testing policy will require the processing and sharing of sensitive personal data. The basis for anti doping regulations could be legitimized if recognised player associations were involved directly in detailed negotiations about any contract that players may be require to sign in order that their personal information can be processed and shared.
Athletes are also concerned that their intensely personal medical information are and will be transferred and stored in countries that do not have the same protections that European Union.
Other concerns include a less than complete right of access, a lack of a right of remedy and right of compensation for damages as a result of a processing operation incompatible with the Standard, a lack of clear definition of exactly the “categories of persons” and the “categories of personal information” that will be stored (Paragraph 4.1 and Article 5.3.) and the need for the storage of “sensitive data” within the ADAMS database.
2. Invasion of privacy
Athletes are required to register his location for one hour a day 365 days a year into the ADAMS database. Many athletes have reported having a problem with the invasive nature of this reporting system and problems in keeping it up to date. If an athlete is remiss in reporting his or her location, or is not in the location that he or she registered this will result in a missed test with resulting consequences. Athletes are not granted a holiday under this regime as required by the EC Working Time Directive.
Our members also had a particular problem with testing outside of the workplace - especially in the home. Clean athletes have almost universally declared themselves willing to submit to testing in the workplace but are extremely sensitive about the invasion of their homes by anti doping officials.
The new International Standard will now require athletes to stay at the chosen address for the whole hour – effectively placing them under house arrest for one hour a day, 365 days a year.
In addition to the “one hour a day” all athletes must allow anti-doping officials into their house at any time of the day or night to provide a sample.
3. Recreational drugs
Positive tests for cannabis and the other “specified substances” (substances which are particularly susceptible to unintentional Anti- Doping Rule violations because of their general availability in medicinal products or which are less likely to be successfully abused as doping agents) are already treated differently under the WADA Code. Whereas, normally the mandatory period of suspension for a first breach of the Code is a period of 2 years ineligibility, in the case of a positive result for a specified substance the provisions of Article 10.3 of the Code apply. Under that article, if an athlete can establish that on a first violation that the use of a specified substance “was not intended to enhance sports performance”, the range of penalties available to the Tribunal are, at a minimum, “a warning and reprimand and no period of Ineligibility from future Events and at a maximum, one (1) year’s ineligibility”. The athlete has the onus of satisfying the Tribunal on a balance of probability that the use of the substance was not intended to enhance sports performance.
EU Athletes takes the position that the use of cannabis and other such substances with no proven performance enhancing qualities or when taken without intent to improve performance be treated under national labor and criminal law rather than as a doping offence. This aspect of workplace discipline should also be negotiated with athletes associations.
The recent Mutu Case sets a disturbing precedent. The player failed a drugs test for cocaine and was sacked by his club and is now being sued for £17 million in compensation in respect of the transfer fee that his club paid for him.
4. Athletes collective representation
The WADA Athletes Committee is not a representational body but is made up of 12 individuals who are appointed, given a certain status by WADA and are then asked to give their personal opinions regarding doping regulations. A review of the Athletes Commission’s “meeting outcomes” reports reveals that the Athletes Commission is involved in and gives input regarding many important decisions and consultations without any mandate from other athletes to do so. EU Athletes has no confidence in the independence of the WADA Athletes Committee or in its ability to negotiate the necessary protections of the privacy and data protection rights of professional players. In no way can this structure be substituted for social dialogue or collective bargaining with independent and truly representative athletes associations.
5. Other Issues
The previous four issues are not the only issues with which EU Athletes has an interest. Also, Therapeutic Use Exemptions, the substance list, athlete education, and athlete rehabilitation are of concern.
Actions taken
These priority issues were communicated to WADA in the following ways and the following actions have been taken so far:
A letter was written to Mr. David Howman, WADA Director, and a meeting was held in Montreal in April of 2008 to express the concerns of the athletes (attached).
A submission was made by the Professional Players Federation in June, 2008, (supported by EU Athletes), regarding the new WADA rules scheduled to come into effect January 1, 2009 (attached).
A complaint was filed with the European Commission in June, 2008 regarding the Working Time Directive and the new WADA regulations.
In December, Emine Bozkurt MEP agreed to submit Parliamentary Questions based on the concerns of EU Athletes regarding anti-doping to the European Commission.
Conclusion
While the language of war has been effectively used by WADA to mobilise previously reticent governments and sport governing bodies to engage in the “fight” against doping. We, as a sporting community have reached a point where we are in danger of this overblown rhetoric being implemented and encroaching on the basic freedoms and rights that all Europeans cherish.
To restate our basic position:
Athletes associations across Europe are committed to drug free sport and would support a fair and effective drug testing regime that recognises, respects and protects athletes legal rights as both employees and European citizens. Aspects of any regime of doping rules that are not sport specific must be negotiated directly with athlete social partner organisations through either a social dialogue or collective bargaining process.
WP 24/11/08
There is a great deal of concern amongst all of the member associations of the European Elite Athletes Association (EU Athletes) about the new WADA Code that is due to come into effect on 1 January 2009. The new Code seriously undermines the rights of professional athletes as both European citizens and employees. Furthermore, some of the key areas of the new WADA Code are of questionable legality.
Athletes associations across Europe are committed to drug free sport and would support a fair and effective drug testing regime that recognises, respects and protects athletes legal rights as both employees and European citizens. Aspects of any regime of doping rules that are not sport specific must be negotiated directly with athlete social partner organisations through either a social dialogue or collective bargaining process.
Complaints
Our member associations have been receiving complaints from our individual members regarding the implementation of the WADA rules by their local NADOs. The following complaints were typical of those received.
A 36 year old athlete with a spotlessly clean doping record reported that he has been tested 8 times already in 2008. Several of these tests took place outside of the workplace. One of them occurred at 730 in the morning after the the doping control official rang the bell waking his entire family including the small children. He was then forced to go with the official into the bathroom, pull his underpants down around his ankles and allow the control officer to witness him urinating into a cup.
Athletes from sports with a higher incident rate have been awakened for tests at 300 am.
An athlete with a spotless doping record reported that he was pulled out of a meeting at his bank. He could not take the test there as he was with his two year old and did not want her to witness the test or to leave her alone while going to the bathroom with the official. He had to cancel the meeting and drive home with the official (doping control officers may not leave the presence of the athletes until the test is taken) before having to submit to the same treatment - pants around the ankles and urination within sight of the official.
Another clean athlete was required to complete a doping test shortly before training. When he could not urinate, the doping control officer was required to accompany the athlete to a team video session, disrupting the work environment.
A prominent clean athlete was notified of her selection as a candidate for a national athletic award shortly before the ceremony was to take place on national television. Due to the short notice, she was unable to change her registration on the WADA location reporting system (ADAMS). When a doping control officer presented himself at her training location she was forced to decide between missing the ceremony or a missed test.
Many team athletes are missing tests due to faulty location reporting by their teams in the ADAMS system. Despite the fact that the individual athletes are not at fault, they are responsible for the missed tests and face automatic suspensions from their chosen professions.
Response
In response to these types of complaints, the 25 member associations of the European Elite Athletes Association (representing approximately 25,000 athletes) made anti-doping its top priority at its annual meeting in 2007. The following issues, directly reflecting the complaints that have been received by individual member athletes, were identified as priority issues by the executive board:
1. Data protection
Our members, as citizens and employees of the European Union are protected, as any other citizen, by EC Directives relating to Data Protection (Directive 95/46/EC).
The Article 29 Data Protection Working Party, in their “Opinion 3/2008 on the World Anti-Doping Code Draft International Standard for the Protection of Privacy” concluded that “it was not yet in a position where it can completely support this Standard, since the minimal requirements included do not appear to reach the minimal standards required by European data protection regulation”.
EU Athletes shares this conclusion and has taken the position on behalf of our members that the WADA Standard needs to be at least as robust as European laws on privacy and data protection.
As emphasised in Point 6 of the Opinion, “any processing must be based on a valid legal ground. The existence of such a legal base has fundamental importance when health data are processed”. The legal ground for the processing of data by WADA is that of “informed consent”. EU Athletes shares the concerns of the Article 29 Data Protection Working Party about the reliance of the code on this basis as, clearly, players have no choice but to give consent if they are to continue their jobs as professional sportsmen and women. As further stated by the Working Group in the Opinion on Article 6.1.:
“According to this provision (Article 2 of the Data Protection Directive), consent is defined as “any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”. The consent to the processing of data collected in the context of the execution of the obligations of the World Anti-Doping Code is neither free nor informed. The sanctions attached to a possible refusal by participants to subject themselves to the obligations of the Code (communication of localisation data, medical anti-doping controls) prevent the Working Party from considering that the consent would be, in any way, given freely.”
This statement seemingly puts the entire WADA Code on shaky legal ground. Despite this, the EU Athletes member associations recognise that an effective drug testing policy will require the processing and sharing of sensitive personal data. The basis for anti doping regulations could be legitimized if recognised player associations were involved directly in detailed negotiations about any contract that players may be require to sign in order that their personal information can be processed and shared.
Athletes are also concerned that their intensely personal medical information are and will be transferred and stored in countries that do not have the same protections that European Union.
Other concerns include a less than complete right of access, a lack of a right of remedy and right of compensation for damages as a result of a processing operation incompatible with the Standard, a lack of clear definition of exactly the “categories of persons” and the “categories of personal information” that will be stored (Paragraph 4.1 and Article 5.3.) and the need for the storage of “sensitive data” within the ADAMS database.
2. Invasion of privacy
Athletes are required to register his location for one hour a day 365 days a year into the ADAMS database. Many athletes have reported having a problem with the invasive nature of this reporting system and problems in keeping it up to date. If an athlete is remiss in reporting his or her location, or is not in the location that he or she registered this will result in a missed test with resulting consequences. Athletes are not granted a holiday under this regime as required by the EC Working Time Directive.
Our members also had a particular problem with testing outside of the workplace - especially in the home. Clean athletes have almost universally declared themselves willing to submit to testing in the workplace but are extremely sensitive about the invasion of their homes by anti doping officials.
The new International Standard will now require athletes to stay at the chosen address for the whole hour – effectively placing them under house arrest for one hour a day, 365 days a year.
In addition to the “one hour a day” all athletes must allow anti-doping officials into their house at any time of the day or night to provide a sample.
3. Recreational drugs
Positive tests for cannabis and the other “specified substances” (substances which are particularly susceptible to unintentional Anti- Doping Rule violations because of their general availability in medicinal products or which are less likely to be successfully abused as doping agents) are already treated differently under the WADA Code. Whereas, normally the mandatory period of suspension for a first breach of the Code is a period of 2 years ineligibility, in the case of a positive result for a specified substance the provisions of Article 10.3 of the Code apply. Under that article, if an athlete can establish that on a first violation that the use of a specified substance “was not intended to enhance sports performance”, the range of penalties available to the Tribunal are, at a minimum, “a warning and reprimand and no period of Ineligibility from future Events and at a maximum, one (1) year’s ineligibility”. The athlete has the onus of satisfying the Tribunal on a balance of probability that the use of the substance was not intended to enhance sports performance.
EU Athletes takes the position that the use of cannabis and other such substances with no proven performance enhancing qualities or when taken without intent to improve performance be treated under national labor and criminal law rather than as a doping offence. This aspect of workplace discipline should also be negotiated with athletes associations.
The recent Mutu Case sets a disturbing precedent. The player failed a drugs test for cocaine and was sacked by his club and is now being sued for £17 million in compensation in respect of the transfer fee that his club paid for him.
4. Athletes collective representation
The WADA Athletes Committee is not a representational body but is made up of 12 individuals who are appointed, given a certain status by WADA and are then asked to give their personal opinions regarding doping regulations. A review of the Athletes Commission’s “meeting outcomes” reports reveals that the Athletes Commission is involved in and gives input regarding many important decisions and consultations without any mandate from other athletes to do so. EU Athletes has no confidence in the independence of the WADA Athletes Committee or in its ability to negotiate the necessary protections of the privacy and data protection rights of professional players. In no way can this structure be substituted for social dialogue or collective bargaining with independent and truly representative athletes associations.
5. Other Issues
The previous four issues are not the only issues with which EU Athletes has an interest. Also, Therapeutic Use Exemptions, the substance list, athlete education, and athlete rehabilitation are of concern.
Actions taken
These priority issues were communicated to WADA in the following ways and the following actions have been taken so far:
A letter was written to Mr. David Howman, WADA Director, and a meeting was held in Montreal in April of 2008 to express the concerns of the athletes (attached).
A submission was made by the Professional Players Federation in June, 2008, (supported by EU Athletes), regarding the new WADA rules scheduled to come into effect January 1, 2009 (attached).
A complaint was filed with the European Commission in June, 2008 regarding the Working Time Directive and the new WADA regulations.
In December, Emine Bozkurt MEP agreed to submit Parliamentary Questions based on the concerns of EU Athletes regarding anti-doping to the European Commission.
Conclusion
While the language of war has been effectively used by WADA to mobilise previously reticent governments and sport governing bodies to engage in the “fight” against doping. We, as a sporting community have reached a point where we are in danger of this overblown rhetoric being implemented and encroaching on the basic freedoms and rights that all Europeans cherish.
To restate our basic position:
Athletes associations across Europe are committed to drug free sport and would support a fair and effective drug testing regime that recognises, respects and protects athletes legal rights as both employees and European citizens. Aspects of any regime of doping rules that are not sport specific must be negotiated directly with athlete social partner organisations through either a social dialogue or collective bargaining process.
WP 24/11/08