February 16, 2018
This guest post was written by Cathérine Van de Graaf, a PhD student at Ghent University.
In a judgment on 18 January 2018, the fifth Chamber of the ECtHR found no violation of the right to private and family life in Fédération Nationale des Syndicats Sportifs (FNASS) and Others v France. The case concerned the requirement for a “target group” of sports professionals to notify their whereabouts every day of the year so unannounced anti-doping tests can take place. The Court ruled that public interest grounds justified the “particularly intrusive” interference with the applicants’ privacy.
Background and national proceedings
In order to align the French Sports Code with the World Anti-Doping Code, the French Government implemented Order No. 2010-379 (Government Order). This Government Order stipulated that anti-doping checks could be carried out during sports events, training periods and other periods of time that were independent of the athlete’s competition or training time. As a result, the location of the testing could take place at the location of aforementioned events as well as at any other location with the permission of the athlete (including their home).
Five interest groups for professional athletes in different disciplines were joined by ninety-nine other professional handball, football, rugby and basketball players in their application (no. 48151/11) to the ECtHR. Some of these applicants applied to the Conseil d’état for the annulment of the Government Order requiring athletes that fall within the “target group” to notify information on their whereabouts to the French Anti-Doping Agency (AFLD).
The athletes placed in the “target group” are required to give their detailed daily schedule for the coming trimester as well as a one-hour slot per day during which they will be present in a certain location to enable unannounced checks. In that sense, they are submitted to strict requirements of location and availability for one hour per day. Additionally, as athletes have to communicate this detailed schedule for the upcoming trimester, they are obliged to plan their private lives well in advance.
The second application (no. 77769/13) is by a French cyclist name Jeanne Longo. She was registered as belonging to the “target group’”, of which the duration was unlimited. After it had been renewed several times, she challenged these renewal decisions before the Conseil d’État.
The Conseil d’État rejected both applications, stating the athletes are being submitted to these unexpected checks in order to detect forbidden substances that can only be detected very shortly after their usage although their effects are lasting. The Government Order’s interference with the right to private and family life was ruled proportional and necessary to the general interest pursued by the fight against doping.
The Court held that the whereabouts requirement was an interference with the applicants’ right under Article 8 paragraph 1 (par. 159).
In the discussion of whether a legitimate aim existed, the different parties disagreed and (partly) so did the Court. According to the applicants, the stated aims of public health and morals are used as a cover to protect economic interests. The Court sided with the aim of public health, finding that the relevant national and international instruments base the fight against doping on health concerns (par.165). These health concerns include those of professional athletes alongside amateur sportsmen and youth. The protection of morality argument is redefined by the Court as the protection of rights and freedoms of others including: competitors of the same level who do not use doping, amateur practitioners who are incited to use doping to capture rewarding achievements and, finally, the audience that is deprived of a fair competition to which they are legitimately attached (par.166).
When assessing the pressing social need, the Court firstly discusses the dangers of doping. Two reports by the French Academy of Medicine and the French Senate clearly confirmed the risk of doping for athletes and drew attention to the continuous development of sophisticated doping protocols that are only detectable for a very short period of time. The Court estimates the effects on athletes’ physical and psychological health were minimised by the applicants. Amateur athletes are affected in “disturbing proportions” as well. In this context, the Court refers to the fact that high-level athletes serve as role models for young people identifying with them as well. This ‘role model effect’ serves to legitimise even more the requirements placed on these athletes while in the “target group”(par. 174-176). In addition, the Court pays particular attention to the continuous evolution in relevant international instruments towards a need for announced checks made possible in part by tracking devices. This development must be taken into account when ruling on the necessity of the interference by the whereabouts requirement (par.178-184).
With the Government Order, the procedural guarantees for athletes in the target group have been improved as the validity of registration therein is now limited to a one year maximum. Further, the Court emphasized that the applicants can undergo the checks at a chosen location and time period, which is less invasive than checks under supervision of a judicial authority with the intent of finding an offence. The Court reiterated that the Government Order satisfied the requirement of the “quality of law” and provides sufficient safeguards against a risk of abuse (par.185-187).
The Court was not convinced by the applicants’ argument that the low success rate of the doping tests are an illustration of their ineffectiveness but instead the Court held that this showed a deterring effect to take drugs. Athletes in high-level competition must take their share of the inherent constraints that are necessary to tackle the frequent practice of doping in their environment. In the present case, they had not provided sufficient evidence to demonstrate that checks limited to their training place would be sufficient to realise the objectives of the national authorities (par. 188-190).
The applicants complained that lesser control of other professions that face similar health issues constitutes a source of injustice, but the Court rejected this claim stating that such a reasoning would be an example of “legitimizing a deficiency by another” (par. 189).
Unanimously, the Court found no violation of article 8.
It is safe to say that sports are not the main focus of the Court’s jurisprudence. The cases that do make it to Strasbourg, relate to varied topics that stretch from football hooliganism to hunting rights and tobacco advertising. Pending at the moment is the case of the Dutch mountain biker Erwin Bakker who was banned from sports competitions for life by the Court of Arbitration for Sport in Lausanne on account of a positive drug test. His application, however, concerns the alleged infringement on his right to fair trial. Ironically, the athlete in question got caught during an out of competition check, which might not have taken place had he been subjected to a more limited regime of doping control.
In the case at hand, the Court discusses whether such a limited approach would suffice (par. 190):
“the applicants and the applicant do not demonstrate that limited controls at the training sites and respecting the moments devoted to private life would suffice to achieve the objectives which the national authorities have set themselves, in view of the developments in increasingly sophisticated doping and in the shortest periods of time during which prohibited substances can be detected.”
It seems as if the Court argues that the applicants are expected to provide evidence that less intrusive measures would have sufficed. Is this an example of a less restrictive means test, be it different from the traditional shape we usually find it in? While it is true that the Court does not apply the test in a consistent manner (Brems & Lavrysen, 2015), placing this burden onto the applicants does seem slightly problematic. In previous case-law the Court found that interference in an individual private sphere should be as limited as possible. Brems and Lavrysen have found that besides the search for the least intrusive measure, concrete modalities could be adopted to lower the impact of certain measures and thus should be researched as well. Allowing the athletes to pick this one-hour slot per day could be regarded as an implicit example that minimises the impact of the interference of the whereabouts requirement in their private life.
While the French government expresses the protection of health and morals as the legitimate aim behind the whereabouts requirement, the Court adds another legitimate aim to the mix by stating that (par. 166):
“what the Government describes as moral, with regard to the search for an egalitarian and authentic sport, is also related to the legitimate aim of “protecting the rights and freedoms of others””
What the Court does here is expand the argument of the French Government so that the legitimate aims behind the whereabouts requirement also encompasses the protection of the rights and freedoms of others. More research is needed to verify whether this expansion is a part of a consistent practice. However, one would err on the side of a cautious approach, especially when stating that the search for an egalitarian sport relates to the protection of the rights of others. This is even more important, as the question as to which rights or freedoms from the Convention would be affected if sports are not authentic or egalitarian anymore is now wide open. It seems quite a stretch to argue that the Convention is violated when the supporting audience of a certain sport is deprived of a fair competition.
Although the applicants argued that “the ethics invoked serve as a façade to protect the economic interests of sports”, the Court considered that this statement was not demonstrated by the applicants in any way and consequently did not direct any additional attention to the allegation. However, the weight that has been given to sports in the present case merits some attention, as it appears that economic interests do play a role.
For the sake of the argument, let us make the comparison with another semi-autonomous field: the abuse of prescription drugs to enhance students’ concentration at university. You could argue that it has a direct effect on the user’s health and encourages other (younger) students to start using them as well. The rights of others are affected as an unfair advantage exists over students that do not artificially enhance their concentration. Nevertheless, putting in place “doping” checks right before exams and thesis deadlines for high performing students would be considered an unthinkably intrusive measure (or would it not?).
We need to ask: What justifies the intrusion on a professional athlete’s private life? Is it that they make a living from doing sports in the form of prize money and sponsor deals? One of the applicants in the present case is the football player Daniel Congré who earns up to six figures a year in wages alone, notwithstanding the revenue earned by his club. Does his choice of a career path warrant the mandatory updates to the AFDL of every move he makes? Or is staying in one place for one hour a day just a small price to pay for the prize of competing at that level? It is necessary to remain cautious when interferences with one’s right to privacy are normalised based on the career choices or earning possibilities of the individual.
One can agree with the lack of evidence for the economic interest behind the measures. Nevertheless, it would have been interesting if the Court had clarified how this context differs from others in which public health is also greatly affected. The Court argued that lesser government control of other professions is not a source of injustice, but it does raise some compelling questions.