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Sports Q&A - What data protection issues do we need to consider before testing athletes for COVID-19?

05 June 2020

The Premier League has started to test players and others as part the league's "Project Restart", prompting clubs and other bodies of many sports to ask if/how they should follow suit.

Recent guidance for workplaces emphasises that testing is possible but it must be conducted lawfully, fairly and transparently. What does this mean for professional sport?

As testing for COVID-19 concerns health related (so called 'special category') data, an 'enhanced' legal basis is required to justify the use of the data (simply showing that there's a legitimate interest isn't enough). Clubs owe duties to their employees and members of the public under health and safety legislation and, insofar as athletes are concerned, clubs may also need to test players (or otherwise monitor their health) to assess their working capacity. These are two grounds that may be available to ensure that processing is lawful, and others may be available in other contexts.

Even with a legal basis, testing programmes need to be necessary and proportionate. Key questions to ask are: do all staff (athletes, coaches, other training ground staff) need to be tested? Will a simple temperature test suffice or does inevitable close contact amongst players and coaches justify a full (invasive) test? How often should we conduct the tests? Can certain functions be performed remotely and/or would social distancing be effective, such that testing can be avoided altogether? You'll need to consult many people in the process, including medical staff, coaches and venue owners/operators.

Having undertaken this analysis, if it's been decided that testing should go ahead, consider how affected individuals will be made aware of how their data will be used and shared (which itself needs to be carefully considered) and what their rights are (especially their right to object to testing). Existing privacy policies are unlikely to be fit for purpose, so a supplemental privacy notice will likely be required. You'll also need a robust data processing agreement in place with any contractor you engage to undertake the testing.

These are just a flavour of issues that clubs and sporting bodies will need to contend with. For a more general overview of workplace testing please see here and please don't hesitate to get in touch if you need help navigating the issues.

 

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