Lex sportiva

While the world of sport promotes exemplary moral and human values, its attitude to athletes' rights is not always exemplary. Failure to respect professional secrecy, pregnancy tests carried out without consent, discriminatory "femininity" tests... What if sport were to make its own law?

"Today, if you open a daily sports newspaper, you're very 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. A clear breach of professional secrecy which, despite being a criminal offence, seems to shock no-one, not even athletes. How can we explain this specificity of the sporting world, unimaginable anywhere else, as evidenced by the taboo that still surrounds the question of transparency on the state of health of a President of the Republic?

Second-class citizens?

"Sports competitions and their hyper-mediatization mobilize ideas, major financial interests and sports betting that sometimes take precedence over conventional legal reasoning, even if it means turning athletes into 'second-class citizens'," continues the private law professor. For while athletes are entitled to disclose their state of health themselves, their consent cannot release the caregivers who accompany them from their duty of secrecy. " The consent of the victim of an offence is not a justifying fact, and health professionals cannot therefore "reveal" information covered by secrecy". In practice, this rule is very often transgressed.

What's more, is the doctor entitled to pass on this information to the sports staff, in particular the trainer, or to the employer (clubs or federations)? The doctor can communicate his doubts about an athlete's ability to hold down a job or return to competition, but if he gives the clinical reasons for his doubts, there's a breach of confidentiality," says François Vialla. It's an ambivalent situation, and sometimes even an ambiguous one, since practitioners have a duty to protect athletes' health, but also to support them in their efforts to perform. An example that illustrates how the meeting points between sports law and health law are sometimes more conflictual than peaceful.

Femininity tests

A conflict that sometimes turns into a scandal, as was the case in 2020. In an open letter, six players from the Nantes handball team revealed 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 carrying out, without the patient having to ask. He must seek, obtain and respect the patient's consent, and cannot override a refusal. However, none of the players wished or dared to take the matter to court. This affair echoes another revelation which occurred in 2011, on the sidelines of the Women's World Cup.

Sweden's Nilla Fisher reveals that she "had to pull down her knickers to show her genitals" (Madame Figaro). A clinical gynecological examination known as the "femininity test" was first imposed on athletes in 1966, then officially abandoned in the 90s until this announcement by the sportswoman. " In the name of fair competition, some federations justify practices that call into question the fundamental notions of health law: medical necessity, proportionality of benefits/risks and consent, since refusal to undergo the test can result in the athlete being barred from competing in the women's category in question", emphasizes François Vialla.

Fighting for integrity

Fortunately, in the majority of cases, gynecological examinations have been abandoned in favor of other, less "intrusive" practices that are just as intrusive to the logic of law and consent. Some federations, particularly in athletics, have set a testosterone threshold above which a woman is no longer allowed to compete in this category, and this without any scientific consensus certifying the existence of a link between testosterone and physical performance. "This sporting logic, which some call the Lex Sportiva, means that there is an autonomous derogatory right in sport. In legal terms, these athletes are indeed recognized as women, but in sporting terms they are not. This confirms that sport and gender have never been very good bedfellows.

To compete in their category and pursue their careers, these "hyperandrogenic" athletes are given an ultimatum by certain federations: lower their testosterone levels or give up the competition. "Beyond ethics and free consent, health law, at least in France, specifies that no act may be performed without medical necessity. In this case, however, there seems to be no medical necessity, only a sporting one," explains the legal expert.

A situation denounced by Caster Semenya, South African 800-meter specialist, who was prevented from competing after refusing to undergo hormone therapy to lower her testosterone levels. Following an action brought against World Athletics, she lost her case before the Court of Arbitration for Sport, then on appeal before the Swiss courts in 2020. The European Court of Human Rights finally ruled in her favor on July 23, but the case is not over. "We are facing a battle of integrity. There is the integrity of competitions on the one hand, and the physical and psychological integrity of individuals on the other. In the age of sport as spectacle, the integrity of competitions takes precedence over that of competitors," concludes François Vialla.