Information Note on the Court’s case-law 214
January 2018
National Federation of Sportspersons' Associations and Unions (FNASS) and Others v. France - 48151/11 and 77769/13
Judgment 18.1.2018 [Section V]
Article 8
Article 8-1
Respect for family life
Respect for home
Respect for private life
Requirement for elite athletes in “target group” to keep authorities informed of their whereabouts for purposes of random drug testing: no violation
Facts – The applicants were the Fédération nationale des associations et des syndicats de sportifs (FNASS), the Syndicat national des joueurs de rugby (Provale), the Union nationale des footballeurs professionnels (UNFP), the Association des joueurs professionnels de handball (AJPH), and the Syndicat national des basketteurs (SNB), together with ninety-nine professional handball, football, rugby and basketball players, and one international cyclist classified as a high-level athlete.
The applicants complained in particular that an obligation to notify information on their whereabouts, so that unannounced anti-doping tests could be carried out, pursuant to the 14 April 2010 Government Order No. 2010-379 on the health of athletes, bringing the Sports Code into line with the principles of the World Anti-Doping Code, had breached their rights under Article 8 of the Convention. The athletes, who had been selected as part of a testing pool, had to provide, at the beginning of every quarter, detailed and up-dated information on their daily whereabouts, including at weekends. They were also required, for each day of the quarter, to specify a one-hour slot between 6 a.m. and 9 p.m. when they would be available for unannounced testing at the location indicated. Such testing could take place when they were not in competition or training and therefore even at home. Failure to comply with each of those obligations would be regarded as an infringement. Three infringements over a consecutive period of eighteen months would entail a sanction.
Law – Article 8: Even though it was foreseeable for high-level athletes, this requirement of transparency and availability sufficed for the obligations complained of to be regarded as impacting on the quality of their private life and also entailed consequences for the enjoyment of their family life and their way of life. The intimate environment where the athletes carried on their private life, i.e. the privacy of their home, was also undermined by the whereabouts requirements.
The obligation in question represented an interference with the applicants’ rights under Article 8 § 1, being in accordance with the law, which sought to address questions of “health”, and not only the health of professionals, but also that of amateurs and in particular youth. It thus had the legitimate aim of protecting “the rights and freedoms of others”. Indeed, the use of prohibited substances to gain an advantage over other athletes unfairly eliminated competitors of the same level who did not have recourse to them, dangerously encouraging amateurs and especially young people to follow suit in order to enhance their performance, and thus deprived spectators of the fair competition which they legitimately expected.
While the applicants did not regard doping as a threat to health, there was a broad consensus among medical, governmental and international authorities in favour of denouncing and combating the dangers caused by doping for the physical and mental health of athletes. And the fact that their health could be harmed by factors other than the taking of such substances, in view of the intensity and high level of competitions, was an additional reason to protect those concerned from the dangers of doping, rather than reducing the need for anti-doping prevention. Moreover, anti-doping prevention was a question of public health in professional sports and for the benefit of all athletes. As the conduct of high-level athletes was likely to have a significant influence over youth, that was further justification for the requirements imposed on those athletes while they were registered for the testing pool.
There were common European and international views on the need for unannounced testing, which was made possible partly through the whereabouts mechanism, as shown in various international instruments, which reflected a continuous development of the applicable norms and principles. There were, however, differences in organisation between the member States of the European Union. It fell within the margin of appreciation of the States to decide on the measures necessary to resolve, in their respective legal systems, the concrete problems raised by doping control, in the light of the complex scientific, legal and ethical questions raised. France, which had ratified the UNESCO’s International Convention against Doping in Sport, was one of the European States which had brought its domestic law almost entirely into conformity with the principles of the World Anti-Doping Code as regards the whereabouts requirement imposed on athletes.
As to the need to strike a balance, the Order of 14 April 2010 had set a one-year term of validity for registration in the testing pool. Without excluding renewals, following a fair hearing of the athlete concerned, that provision constituted an improvement in the procedural safeguards available to those selected.
The athletes might feel obliged, for practical reasons, to give their home or a holiday residence as their whereabouts at weekends and during holidays, with the possibility of being tested there. Such a situation interfered with their right to the peaceful enjoyment of their home and negatively affected their private and family life. Nevertheless, those whereabouts were established “at their request and according to a given time-frame”, and they were required to ensure the efficiency of anti-doping tests. The checks in question were thus very different from those under the supervision of the courts, which were intended for the establishment of offences and might entail seizures, which by definition would undermine the essence of the right to respect for one’s home.
The Order of 14 April 2010, as codified in the Sports Code, and the decisions of the French Anti-doping Agency, had laid down a framework within which athletes were able to challenge their selection for the testing pool, including through an appeal to a court. It also allowed them to foresee and adopt the necessary conduct in relation to the places and times arranged for the testing, as a missed test was limited to their absence at the time and place they themselves had indicated. Lastly, they had the possibility of challenging any sanctions before the Administrative Court.
The applicants alleged that the tests to which they were subjected were inefficient. However, while positive results were admittedly rare, this could be explained, at least in part, by the dissuasive effect of anti-doping prevention. Directly concerned, as they were, by a scourge that was particularly prevalent in the circles of high-level competition, to which they had risen, they had to bear their fair share of the constraints that were inherent in the measures needed to counter the problem. Similarly, the allegedly endemic nature of doping in the world of sport could not call into question the legitimacy of prevention efforts but, on the contrary, justified the desire of the public authorities to succeed in those efforts.
The applicants had not demonstrated that testing limited to training grounds, while respecting times reserved for private life, would have sufficed to fulfil the objectives set by the national authorities in keeping up with developments in increasingly sophisticated doping methods, and in dealing with the very short time-frame within which prohibited substances could be detected. In the light of the dangers established in the case and the difficulties encountered in reducing them efficiently, the whereabouts requirements imposed in accordance with the above-mentioned norms of international law had to be regarded as justified.
Without underestimating the impact of those requirements on the applicants’ private life, the general interest reasons which made them necessary were of considerable importance and justified the restrictions on their rights under Article 8 of the Convention. To reduce or remove the obligations of which they complained would be capable of increasing the dangers of doping for their health and for that of the whole sports community, running counter to the European and international consensus on the need for unannounced testing. The respondent State had struck a fair balance between the different interests at stake.
Conclusion: no violation (unanimously).
(See also the Factsheet on Sport and ECHR and, under Article 10 of the Convention (freedom of expression), Ressiot and Others v. France, 15054/07 and 15066/07, 28 June 2012)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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