The athlete's right to respect for his private life and his home

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Author: Janwillem Soek
Date: July-October 2008
Publisher: ASSER International Sports Law Centre
Document Type: Article
Length: 15,531 words

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Competition cyclist Andrej Kashechkin was caught on a charge of blood doping during an unannounced check on 1 August 2007 while holidaying in Turkey. On 31 August he was fired by his team Astana, after a countercheck also proved positive. The cyclist also faced a two-year suspension and an additional two-year Pro Tour suspension. He then laid a charge with the court in Liege (Belgium) against the International Cycling Union UCI. He maintained that carrying out a doping check during a personal holiday is a violation of human rights. Judicial testing against fundamental human rights rules, of the regulations which give sporting and anti-doping organisations the right to carry out doping checks outside the competition context, is vitally important. Should the court have found that the checks are a violation of a sportsperson's right to privacy, then one of the most important elements in the existing doping control system would have fallen away. Unfortunately the procedure met a premature end, because the Liege court declared itself to be unqualified to consider the issue for 'territorial reasons': the cyclist no longer lived in Belgium and the UCI's base is in Switzerland. It is anticipated that Kashechkin will launch a case against the UCI in Switzerland in the near future. Indeed, on the eve of the case in Belgium Kashechkin's lawyers indicated their willingness to proceed through to the European Court of Human Rights.

The possibility of disturbing a sportsperson in his private life and home to take a doping sample, gives rise to a number of interesting questions. What follows will attempt to provide answers to the questions. The first issue which arises is the legal basis of such checks performed outside a competition context, and the status of the legal basis. If the basis resides in 'purely sportive rules', does the court then have the possibility to test the rules? Can it be taken as a point of departure that no single objective of the sporting sector can justify that the more fundamental social interests and rights of the sportsperson are violated? In other words: are the interests of the sporting world only related to the autonomous private rights, or are these interests subordinate to rules of the human rights treaties? If the answer to this is that the sporting world must step aside for fundamental human rights, the follow-up question must be whether the right the sporting world accords itself to carry out doping checks at the home of a sportsperson or during his or her holiday, is in conflict with basic rights. Finally there is the question as to whether in choosing to exercise a sport, the sportsperson has voluntarily renounced the protection human rights offers.

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Gale Document Number: GALE|A212546218