The Federal Act on the Promotion of Sport and Exercise, which came into force on 1 October 2012, creates statutory regulations for the fight against doping in Switzerland. In particular, it regulates doping controls and the exchange of data between national and international anti-doping agencies and the prosecution authorities and courts.
Statutory regulations for doping controls
The new Federal Act on the Promotion of Sport and Exercise (Sport Promotion Act) provides statutory regulations for the fight against doping in Switzerland. Until recently, athletes were asked to agree to undergo doping tests. However, in terms of data protection law, this agreement was not given voluntarily, and it was therefore unclear whether the situation was actually legal. Athletes had the choice between either agreeing to the test and therefore having their data processed, or not taking part in competitive sport.As this is not a choice between two things of equal value, agreeing to undergo a doping control could not be seen to be giving consent in legal terms. The statutory regulations now in force mean that athletes who take part in competitions can be required to undergo a doping control at any time, no matter whether they have given their consent or not.
Exchange of data with anti-doping agencies
The new statutory regulations also regulate the necessary exchange of data between national and international anti-doping agencies. In some instances, sensitive data may be involved, and so this information cannot be transferred to other anti-doping agencies without a second thought. Data may not be transferred if personality rights are at risk of being infringed, in particular when the recipient cannot guarantee that the data will be adequately protected. This provision reiterates the general regulation of data protection law and thus underlines the principle that, in the legitimate fight against doping, the personality rights of the persons involved may not be infringed. Adequate protection is provided when the recipient country has a sufficient level of data protection or a contractual agreement on data protection has been concluded.
This is of particular importance with regard to the transfer of data to the World Anti Doping Agency (WADA) in Canada. WADA is the central agency which coordinates and harmonises international measures against doping. Since WADA is subject to neither Canadian federal legislation, nor that of the Province of Quebec, it cannot be assumed that there is an adequate level of data protection. Therefore, under the new Sport Promotion Act, the associations responsible for data processing must guarantee the data protection level contractually and conclude or uphold corresponding agreements with WADA.
Data processing in the case of medical exemptions
Nor is it possible to exchange internationally any data, including sensitive data of particular import, which is available to the national agency for any purpose. Only personal data that is essential in the fight against doping may be transferred. This is particularly important in the case of medical requests and exemptions for athletes who, for example, have to take otherwise prohibited substances for therapeutic use. Only data necessary to process requests and exemptions may be disclosed to other recognised national or international anti-doping agencies. Furthermore, the express consent of the athlete concerned is required, as the disclosure of data is not directly related to the carrying out of doping controls.
Data exchange with prosecution authorities and the courts
Under the new statutory regulations, the cantonal prosecution authorities and courts are still responsible for prosecuting doping offences. They are also able to request the help of specialists from the national anti-doping agency in their investigations. Exchanging information between the bodies involved continues to be of key importance in making the fight against doping more effective. For example, the doping control bodies are required to inform the prosecution authorities about doping substances and methods identified during a doping control. Likewise, the national anti-doping agency receives information from the prosecution authorities and courts about any criminal proceedings and rulings on doping offences. The form this information should take is clearly set out in the Ordinance on the Promotion of Sport and Exercise.
Switzerland has created, in the shape of the Sport Promotion Act, statutory regulations for national anti-doping agencies and all affected athletes which provide clarity as to who may process data and how. We believe that standardising data processing procedures leads to more legal certainty in the fight against doping.
Last update: November 2013