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18 October 2010
The Beijing Olympics are finally upon us. In between the round-the-clock media coverage, national obsession with medal counts, and the quadrennial debate over the Olympic mascot (this year, actually justified), spare a thought for the lowly athlete.
The games promise to be one of the most rigorous in enforcing existing anti-doping controls to date. So, when not contributing their all in their chosen sports disciplines, many athletes will be asked to make a contribution of a much different sort to doping control officers.
Whereas 3,600 doping tests were performed four years ago in Athens, 4,500 tests are scheduled to take place in Beijing, evidencing the International Olympic Committee’s desire to ensure that athletes embody the Olympic ideal of playing fair.
For each event, the top five competitors will be tested, plus a further two athletes selected at random. The tests will include pre-competition controls and, of the 4,500 tests, 700 to 800 will involve testing urine samples for evidence of the banned substance, EPO, and a further 900 will involve testing blood samples.
Athletes may even be tested twice on the same day at any one of 41 doping control stations, 34 located in Beijing and 7 in the co-host cities.
And, while the testing of athletes is evidently on the rise to combat more sophisticated doping techniques involving athletes, so too are concerns surrounding athlete privacy.
It’s no wonder. As a precondition of participation in organized sport, top athletes today are required to abide by anti-doping rules and procedures premised on the World Anti-Doping Agency’s (WADA) Anti-Doping Code.
Under the Code, athletes must agree to in and out-of-competition testing to determine whether they are using performance-enhancing substances on WADA’s Prohibited Substances List.
As national and regional anti-doping organizations engage in athlete drug testing, they continue to amass, analyze and transmit a massive amount of personal information, including sensitive medical information, relating to athletes, as well as biological specimens rich with information about the athlete and their health.
Anti-doping bodies, government, sports organizations and national and regional privacy regulators, especially those in Europe, have been struggling of late to understand how these anti-doping efforts can be squared with another, competing trend, the rise of national and regional data protection and privacy laws whose aim is to restrict intrusions upon the privacy of individuals, including athletes.
Just as more and more countries publicly commit to detecting drugs cheats by ratifying the UNESCO Convention Against Anti-Doping in Sport, national data protection regulators urge caution and advocate greater scrutiny of the privacy implications of the drug testing process.
To its credit, one organization, WADA, has taken on the very thankless task of trying to chart a path between the two competing claims.
In the past year, WADA, which is responsible for regulating sports anti-doping programmes worldwide, has been preparing an international privacy and data protection standard that would govern how national and international anti-doping organizations, as well as major events organizers, collect and handle athlete personal information.
If adopted, this standard would bring about a fundamental sea-change in the practices of these organizations and ensure much needed privacy protections for athletes are in place, no matter where they happen to live, train or compete.
But, all is not plain sailing and the success of the WADA standard, already in its third draft, is far from certain. On the one hand, there are those who would argue for a more flexible set of rules that would allow anti-doping organisations in countries with few, or no, data privacy laws and little practical experience in applying privacy norms greater room to manoeuvre.
On the other hand, there are those who contend that the standard must be no less protective than EU directives, thus foisting European law on the rest of the world. Achieving a sensible balance between these two competing visions of a sports privacy standard is not an easy task, especially when so much is at stake.
Over the next few months, the proverbial rubber will hit the road, as sports bodies, anti-doping organizations and other stakeholders gather to discuss the merits of the latest version of WADA’s standard, which WADA hopes to have in place in 2009. If a reasonable compromise cannot be found and the hardliners win the day, then ultimately it will be the athletes who lose out.
In four years’ time when the Olympics arrive in London, the debate over athlete privacy may still be raging, with little tangible progress made. So, spare a thought for the athlete this summer, since more may be at stake than just Olympic medals.
Dan Cooper is an Of Counsel in the Privacy and Data Security Practice of Covington & Burling's London office, and advised the World Anti-Doping Agency on creation of the privacy and data protection standard.
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