Advocate General considers that a national anti-doping authority which publishes personal data of a doped professional athlete on the internet is not in breach of the GDPR

September 27, 2023

In Case 5-115/22 | NADA e.a, an Austrian professional middle-distance runner has been found guilty of breaching Austrian anti-doping rules. The Austrian Anti-Doping Legal Committee (Österreichische
Anti-Doping Rechtskommission, ÖADR) declared as invalid all results that the athlete had obtained during the period at issue, revoked any entry fees and/or prize money and banned her from participating in sporting competitions of any kind for a period of four years. That decision was upheld by the Independent Arbitration Committee (USK).

The Independent Anti-Doping Agency (Unabhängige Dopingkontrolleinrichtung,
NADA) also published the athlete’s name, her anti-doping rule violations, and the period of suspension in a table of suspended athletes on its publicly accessibly website.

The athlete requested the USK to review that decision. The USK asked the CJEU for guidance about whether the publication of the personal data on the internet of a doped professional athlete is compatible with the GDPR.

Advocate General Capeta first considered if the reference was admissible and said that the USK constitutes a “court or tribunal” under Article 267 of the Treaty on the Functioning of the EU.

The AG then considered the issues of substance and said that the GDPR does not apply to the factual circumstances of the case. Anti-doping rules primarily regulate sport as sport. They are concerned with sport’s social and educational functions, rather than its economic aspects. There are currently no EU law rules that relate to the anti-doping policies of the member states. Without even an indirect link between the anti-doping policies and EU law, the GDPR cannot regulate such processing activities. Therefore, the Advocate General felt that the factual circumstances of this case fall outside the scope of EU law, and thus outside the scope of the GDPR.

In the alternative, the AG considered that the GDPR does permit the processing of personal data in a pre-determined context without the need for any individualised proportionality assessment. The Austrian legislature’s decision to require the disclosure to the public of personal data of professional athletes breaching the applicable anti-doping rules is therefore not subject to an additional proportionality assessment in each individual case. The interference with the rights of professional athletes brought about by public disclosure can be justified by the preventative aim of deterring athletes from committing doping offences and of informing relevant stakeholders.

The AG also pointed out that nowadays mere print publication can not longer be considered an adequate means of making information available to the public. Requesting solely offline publication of the information at issue would be akin to circumventing the obligation to inform the public. Disclosing the athlete’s name, the anti-do0ping rule violation at issue and the suspension imposed on her on the publicly available website of a national anti-doping authority was, during the time of her suspension, adequate and necessary to achieve the preventative function of deterrence and informing stakeholders.