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Volume: 11 Issue: 3
(March 2013)

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WADA warned that Code doesn’t respect data laws

The Article 29 Working Party, a body representing the European Union’s data protection regulators, has written to the World Anti-Doping Agency (WADA) warning that proposed revisions to the World Anti-Doping Code (the ‘Code’) do not respect European data protection law. ‘In the context of the third and final stage of the public consultation organised by WADA, the Art. 29 WP would like to express a number of observations and concerns with regard to these documents, particularly the latest modifications’, reads a 5 March letter to the World Anti-Doping Agency (WADA). ‘The Art. 29 WP feels that WADA’s proposals do not strike the necessary and proportionate balance between WADA’s aims and the respect for fundamental rights’.

In a 13-page annex to the letter from its Chairman Jacob Kohnstamm, the Art. 29 WP outlines its objections to the latest revisions to the Code; WADA’s International Standard for the Protection of Privacy and Personal Information (ISPPPI); its use of the Anti-Doping Administration and Management System (ADAMS); its International Standard for Therapeutic Use Exemptions (ISTUE); and its International Standard on Testing (whereabouts).

In the annex to the letter, the Art. 29 WP rejects athlete consent as the basis for processing data, as ‘the sanctions and consequences attached to a possible refusal by participants to subject themselves to the obligations of the Code…prevents the Working Party from considering that consent would be, in any way, freely given’. It also states it is ‘out of the question’ that non-EU requests for disclosure of personal information relating to doping are complied with, unless prescribed by the national legislation of the anti-doping body concerned.

It states that identifiable samples can only be stored for a maximum of eight years, and only indefinitely if they are anonymised – whereabouts data can only relate to four hours in a 24-hour period (rather than living, competition and training locations plus one hour per day, as currently required). It also requests the Code to clearly state that the Athlete Biological Passport is not mandatory, ‘as confirmed by WADA during the subgroup meeting’ and that ADAMS is not mandatory.

“The Article 29 Data Protection Working Party is an advisory body established under the EU Data Protection Directive 95/46/EC”, said Dominika Kupczyk,  a Privacy Advisor with Field Fisher Waterhouse LLP. “The Group's opinions are not binding but, as previous cases have shown (e.g. Google Street View), they are highly influential in view of the action the regulators might take".

The proposed revisions to the Code will be discussed at World Sports Law Report’s Tackling Doping in Sport conference, which takes place 13-14 March at Twickenham Stadium. Dr. Lars Mortsiefer, Head of Legal for the Nationale Anti-Doping Agentur Deutschland and Dan Cooper, external advisor to WADA in relation to data protection issues will provide an update on data protection in anti-doping during the 13:45 session on day one of the conference. To view the conference programme, click here. 

Graham Arthur, UK Anti-Doping’s Head of Legal will head a round table review of the Code on day two of the conference at 10:40. In a recent interview with World Sports Law Report, Arthur gave his views on issues around data protection within the Code. “The way to manage it is for parties such as the European Commission, the European Parliament and WADA to work together to find a compromise solution that allows anti-doping regulation to work effectively in a context where athletes’ fundamental rights are respected”, he said. “I think that there is room to manage consent. An athlete shouldn’t have the option to refuse a test on the basis that he doesn’t want his data processed any more than an athlete shouldn’t have the option to ignore any other part of the rules of his sport.”

The Art. 29 WP’s letter to WADA is available here. The 13-page annex listing its issues in relation to revisions to the Code is available here.

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