Dr. of Law, Associate Professor O.A. Shevchenko¹
PhD, Associate Professor A.I. Redkina¹
PhD D.I. Vorontsov^1
1Kutafin Moscow State Law University, Moscow

Keywords: sports, sports law, doping, genomic research, gene doping, elite sports, genetics, DNA.

Background. It was relatively long ago that the World Anti-Doping Code was complemented by provisions against gene doping. It should be acknowledged that in spite of the expressed sensitivity to this issue from the international sports regulatory agencies, the sports are still in need of a universal legislative and regulatory system to control genomic research and genetic modification initiatives and gene doping in sports.

Objective of the study was to analyze the existing foreign legislative frameworks and approaches for the sports-specific gene research.

Results and discussion. This study analyzes only the issues of genomic research and its applications in elite sports including selection of gifted athletes and gene-doping-free performance improvement applications – as is the case in China and Australia, although the practical genomic research regulatory policies and practices of both of the countries are very different.

Having analyzed the foreign genomic research regulatory frameworks, we found no clear and specific elite-sports-related genomic research control provisions – probably due to this research field being still underdeveloped and, hence, it is necessary to outline some general principles of such research first. Let's consider the practical experiences of Australia and China in this domain.

The Australian Institute of Sports, a special elite sports control agency, clearly spelled up at some point its position to the sports-specific genomic research. Note that the Australian Institute of Sports is a division of the Australian Sports Commission pursuant to Australian Sports Commission Act of No. 12, 1989 Section 9 [1]. The Australian Sports Commission is a federal regulatory agency in charge of sports in the country.

At this juncture, the Australian Institute of Sports pursues its policies for the sports-specific genomic research and its applications based on the following key points:

- Presently the science gives no clear theoretical grounds for genomic research geared to improve athletic performance and select or rank athletes;

- Athletes and coaches shall never resort to private genome research services due to the high risks and drawbacks of such practices – e.g. restrictions for the highly skilled and experienced medical specialists’ services;

- Any exchange of gene material or genetic modifications may be classified with a gene doping prohibited in sports;

- Genomic research is still very important for some sports applications including studies of individual susceptibilities to injuries or health disorders;

- Genomic research is associated with multiple ethical issues that need to be taken into account by such studies [2].

Furthermore, the Australian Institute of Sports adheres to the following principles:

- Health-related genomic research shall be prescribed by a doctor based on the relevant genetic counseling service;

- Genomic research as a part of a sports research project should be run exclusively on a written informed consent from the athletes who should be fully aware of the purposes their gene data are intended for;

- Athletes should also be informed about the possibility of accidents in the genomic research process with potential effects on their (and their family) health;

- Athletes should be free to avoid the genomic research procedures;

- Athletes who avoid the genomic research procedures should not be discriminated in any aspect;

- Genomic research data and findings should be treated as confidential unless otherwise explicitly stated and explained to the athlete;

- Underage athletes shall not be recruited for genomic research for purely scientific purposes;

- Athletes shall be free to cancel their participation in the genomic research and have their gene materials eliminated from the databases;

- Athletes involved in a genomic research are entitled to hand over their genomic research materials and findings to third parties;

- The sports-specific genomic research tests shall be as least-invasive as possible;

- Gene manipulations shall not be used for the athletic performance enhancement purposes;

- Private commercial genomic research services with the athletic performance improvement aspects are not encouraged;

- Genomic research data should not be used for athletic selections including qualifications/ disqualifications from elite sports;

- Genomic research applications for interventions to prevent/ mitigate injuries and improve health standards are encouraged as appropriate and legal;

- Genomic research data circulation and genomic research policies and practices shall be regulated by clear principles and provisions [2].

In addition, Australia is implementing the Genomics National Health Policy Plan for the period of 2018-2021 [3]. This document makes no direct references to the sports sector although some of its provisions are related to the human genome research and the relevant ethical and legal issues and potential sports applications of the genomic research data. On the whole, the Australia's approach to the genomic research may be described as very conservative and sensitive to the relevant ethical and legal issues with recognition of the theoretical basis still incomplete for fast progress.

The Chinese genomic research regulatory framework allows a genetic material being sampled from athletes and the genomic research data being used in preparations for the top-ranking global competitive events. Presently China is looking forward to hosting the 2022 Winter Olympics. China came up in this context with its "Winter Olympics Technologies: Annual Guidelines for 2018” Project [4] that encourages using the cutting-edge technologies in every field including the gifted athletes’ selection processes and mechanisms. The Project includes multiple research of the athletic community, including physical health and physiology research in a wide range of conditions, with sports talent selections based on genetic markers and standard experimental test methods – to offer a comprehensive sports talent selection system.

The Project includes, among other things, a comprehensive genome analysis of more than 300 leading competitors in winter sports versus their speed and endurance test rates. In addition, more than 500 elite qualifiers for the Winter Olympic Games will be sampled by specific genome tests. These preparatory studies for the upcoming 2022 Winter Olympic Games were planned for 2018-2020 and are being implemented by the General Directorate of Sports in cooperation with the Ministry of Education and many relevant foundations [4].

Conclusion. It should be emphasized that at this juncture the elite-sports-related genomic research and genomic research data applications are still in need of a comprehensive legal and regulatory framework model. There are reasons to believe, however, that these issues will soon be addressed by legislative systems of most of the world nations. The elite athletes’ genomic research shall be designed in compliance with the following legal systems:

- Anti-doping legislation;

- Discrimination prevention legislation;

- Human genome protection and bioethics securing legislation; and

- Sports progress encouraging legislation

The study was sponsored by the RFRF under “Genetic modifications regulating and gene doping control legislation development” Research Project № 18-29-14082.

References

1. Australian Sports Commission Act № 12 of 1989ю <https://www.legislation.gov.au/Details/C2016C01020>.
2. Vlahovich N., Fricker P.A., Brown M.A., Hughes D. Ethics of genetic testing and research in sport: a position statement from the Australian Institute of Sport // British Journal of Sports Medicine. 2017. Vol. 51. зз. 5–11. P. 5.  <https://bjsm.bmj.com/content/51/1/5>
3. National Health Genomics Policy Framework 2018–2021 Implementation Plan / COAG Health Council <http://www.coaghealthcouncil.gov.au/Portals/0/Genomics%20Policy%20Framew....
4. “科技冬奥”重点专项 2018 年度定向项目申报指南 /<http://service.most.gov.cn/u/cms/static/201804/11180249srid.pdf>

Corresponding author: labourlaw@bk.ru

Abstract

Objective of the study was to analyze the existing foreign legislative frameworks and approaches for the sports-specific gene research.

Methods and structure of the study. This article is devoted to the study of experience of several foreign countries in the field of legal support for genomic studies and the use of their findings in the field of sports. We analyzed the key legal problems in this area using the experience of the Australian Union and the People's Republic of China. These countries were selected for analysis as representatives of various approaches to the regulation of the issues under study.

Results of the study and conclusions. Different approaches make it possible to take a different look at the emerging prospects for the development of legal regulation of these technologies and research in the field of sports. Subsequently, such differences can become a significant problem for world sports - in case some countries oppose the use of such technologies, while others actively support them and use their results, sports competitions cannot be held on an equal footing. Based on the findings, we can conclude that there is a lack of fully formed models of comprehensive legal support for genomic studies and the use of their results in the field of sports, which does not allow us to unequivocally state the prospects for their use.