[LUM#20] Lex sportiva
While the world of sport promotes exemplary moral and human values, its attitude towards athletes' rights is not always consistent with this. Breaches of professional confidentiality, pregnancy tests carried out without consent, discriminatory "femininity" tests... What if sport were making its own rules?
"Today, if you open a sports newspaper, you are likely to come across health information about athletes," notes François Vialla, director of the School of Health Law at the UM Faculty of Law and Political Science. This is a clear violation of professional confidentiality, which, although it constitutes a criminal offense, does not seem to shock anyone, not even the athletes themselves. How can we explain this peculiarity of the sporting world, which would be unimaginable anywhere else, as evidenced by the taboo that still surrounds the issue of transparency regarding the health of the President of the Republic?
Second-class citizens?
"Sports competitions and their hyper-mediatization mobilize ideas, major financial interests, and sports betting, which sometimes take precedence over traditional legal reasoning, even if it means turning athletes into 'second-class citizens,'" continues the professor of private law. While athletes have the right to communicate about their own health, their consent cannot release the healthcare professionals who treat them from their duty of confidentiality. "The consent of the victim of an offense is not a justifiable reason, and healthcare professionals cannot therefore 'reveal' information covered by confidentiality." This rule is very commonly broken in practice.
Furthermore, does the doctor have the right to share this information with the sports staff, particularly the coach, or with the employer (clubs or federations)? "The doctor can communicate his doubts about an athlete's ability to perform his job or return to competition, but if he gives the clinical reasons that justify his doubts, this constitutes a breach of confidentiality," says François Vialla. It's an ambivalent, and sometimes ambiguous, situation, since practitioners must protect athletes' health but also support them in their performance." This example illustrates how the intersection between sports law and health law can sometimes be more contentious than peaceful.
Femininity tests
A conflict that sometimes turns into scandal, as was the case in 2020. Six players from the Nantes handball team revealed in an open letter that they had undergone pregnancy tests without their consent during what they thought were simple blood tests. "Under health law, doctors have a strict obligation to inform their patients of the true nature of the tests they are performing, without the patient having to ask. They must seek, obtain, and respect the person's consent and cannot override a refusal. However , none of the players wanted or dared to take legal action. This case echoes another revelation that came to light in 2011 on the sidelines of the Women's World Cup.
Swedish athlete Nilla Fisher reveals that she "had to pull down her pants to show her genitals" (Madame Figaro). A clinical gynecological examination called a "femininity test" was first imposed on athletes in 1966 and then officially abandoned in the 1990s until this announcement was made by the athlete. "In the name of fairness in competition, certain federations justify practices that call into question fundamental notions of health law: medical necessity, proportionality of benefits/risks, and consent, since in the event of refusal, female athletes may be barred from competing in the women's category in question," emphasizes François Vialla.
Integrity fight
Fortunately, in most cases, gynecological examinations have been abandoned in favor of other practices that are less "intrusive" but just as contrary to the principles of law and consent. Some federations, particularly in athletics, have set a testosterone threshold above which women are no longer allowed to compete in that category, even though there is no scientific consensus confirming a link between testosterone and physical performance. "This sporting logic, which some call Lex Sportiva, leads to the conclusion that there is an autonomous derogatory right in sport. Legally, these athletes are recognized as women, but in sporting terms they are not. This confirms that sport and gender have never been a good mix."
In order to compete in their category and pursue their careers, these "hyperandrogenic" athletes are faced with an ultimatum by certain federations: lower their testosterone levels or give up competing. "Beyond ethics and free consent, health law, at least in France, specifies that no procedure can be performed without medical necessity. However, in this case, there appears to be no medical necessity, only a sporting necessity," explains the lawyer.
This situation was denounced by Caster Semenya, a South African 800-meter specialist who was prevented from competing after refusing to undergo hormone therapy to lower her testosterone levels. Following a lawsuit against World Athletics, she lost her case before the Court of Arbitration for Sport, then on appeal before the Swiss courts in 2020. Finally, on July 23, the European Court of Human Rights ruled in her favor, but the case is not closed. "We are facing a battle of integrity. On the one hand, there is the integrity of competitions, and on the other, the physical and mental integrity of individuals. In the age of spectator sports, the integrity of competitions is prioritized over that of the competitors," concludes François Vialla.
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