[LUM#20] Lex Sportiva
While the world of sports promotes exemplary moral and human values, its attitude toward athletes’ rights is not always exemplary. Breaches of professional confidentiality, pregnancy tests conducted without consent, discriminatory “femininity” tests… What if sports were to make its own rules?
“These days, if you open a sports newspaper, there’s a good chance you’ll come across health-related information about athletes,” notes François Vialla, director of the School of Health Law at theUM 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 unique aspect of the sports world—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 the intense media coverage surrounding them mobilize ideas, major financial interests, and sports betting—all of which sometimes take precedence over traditional legal reasoning, even if it means treating athletes as ‘second-class citizens,’” continues the professor of private law. For while athletes have the right to disclose information about their health themselves, their consent cannot release the healthcare providers treating them from their duty of confidentiality . “The consent of the victim of a crime is not a justifying factor, and healthcare professionals therefore cannot ‘disclose’ information covered by confidentiality.” This is a rule that is very commonly violated in practice.
Moreover, is a doctor permitted to share this information with the athletic staff—particularly the coach—or with the employer (clubs or federations)? “A doctor may express concerns about an athlete’s ability to perform their role or return to competition, but if they provide the clinical reasons underlying those concerns, that constitutes a breach of confidentiality,” states François Vialla. “It’s an ambivalent situation—and sometimes even ambiguous—since practitioners must protect athletes’ health while also supporting them toward and during competition.” This example illustrates just how the intersections between sports law and health law are sometimes more contentious than harmonious.
Femininity Tests
A conflict that sometimes escalates into a scandal, as was the case in 2020. Six players on the Nantes handball team revealed in an open letter that they had undergone pregnancy tests without their consent during what they believed to be routine blood tests. “Under healthcare law, a doctor has a strict obligation to inform the patient of the true nature of the tests being performed, without the patient having to ask. The doctor must actively seek, obtain, and respect the patient’s consent and cannot override a refusal. ” However, none of the players wished to 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 panties to show her genitals” (Madame Figaro). A clinical gynecological examination known as the “femininity test” was first imposed on athletes in 1966 and then officially discontinued in the 1990s—until this announcement by the athlete. “In the name of competitive fairness, certain federations justify practices that call into question fundamental principles of health law: medical necessity, the balance between benefits and risks, and informed consent—since, in the event of refusal, female athletes may be barred from competing in the relevant women’s category,” emphasizes François Vialla.
The Fight for Integrity
Fortunately, in most cases, gynecological exams have been phased out in favor of other, less “intrusive” practices—though these are just as at odds with the principles of law and consent. Some sports federations, particularly in track and field, have thus set a testosterone threshold above which a woman is no longer allowed to compete in that category—and this without any scientific consensus confirming a link between testosterone and athletic performance. “This sporting logic, which some call the Lex Sportiva, leads to the assertion that there is an autonomous, exceptional legal framework in sports. Legally, these athletes are recognized as women, but in the sporting world, they are not. This confirms that sports and gender have never been a good fit.”
In order to compete in their category and continue their careers, these “hyperandrogenic” athletes are faced with an ultimatum from certain federations: lower their testosterone levels or give up competition. “Beyond ethics and informed consent, health law—at least in France—stipulates that no procedure may be performed without medical necessity. Yet in this case, medical necessity seems to be absent; there is only a sporting necessity,” the lawyer explains.
This situation was denounced by Caster Semenya, a South African 800-meter specialist who was barred from competing after refusing to undergo hormone therapy to lower her testosterone levels. Following a lawsuit filed against World Athletics, she lost her case before the Court of Arbitration for Sport and then on appeal before a Swiss court in 2020. It was ultimately the European Court of Human Rights that ruled in her favor on July 23, but the case is not yet closed. “We are facing a battle over integrity. On the one hand, there is the integrity of competitions, and on the other, the physical and mental integrity of individuals. In this era of spectator sports, the integrity of competitions is prioritized over that of the competitors,” concludes François Vialla.
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