12/26/2009 03:46 pm ET Updated May 25, 2011

Drug Testing Zealots and the Right of Privacy

Where will you be three months from today at 2:00 pm? If you are like most people, you likely have no idea where you will be an hour from now, let alone next spring. If you are an elite professional athlete, the World Anti-Doping Agency, however, would like to know where you will be for at least one hour a day, every day between now and April Fool's Day. WADA says that its "whereabouts rule" is necessary to keep sport clean through the "knock on the door" of unannounced drug tests. It is an overbroad and abusive rule which demonstrates how far we have lost our way - and perhaps lost our minds - when it comes to performance enhancing drugs.

Everyone, I would think, agrees that athletes should participate in sports on a level playing field. No one should have an unnatural advantage based on the use of certain banned substances. That leaves open many questions. What is an unnatural advantage? What substances should be banned? How should tests be conducted? And how are you going to administer a testing process in a manner which catches true positives, but does not unduly interfere with the personal lives of all athletes?

Yanina Wickmayer is a young Belgian tennis star who wowed the crowds at the U.S. Open last September by reaching the semifinals in Flushing Meadows. She was accused by the International Tennis Federation of violating WADA's anti-doping rules on three occasions. She failed to report to the ITF where she would be for one hour three months ahead of time. Belgian anti-doping authorities, following WADA's new rule, banned her from playing tennis for one year. Ms. Wickmayer never tested positive for anything. I know it sounds crazy, and it is.

WADA's zeal for its cause knows no limits. Under its program, elite athletes are guilty unless proven innocent of the heinous charge of violating the "whereabouts rule." The fact that Ms. Wickmayer is clean of drugs is irrelevant. What matters is that she failed to respect WADA's rules, whatever they might require at the whim of these self-appointed guardians of sport.

Wickmayer and her fellow Belgian tennis player, Xavier Malisse, have challenged the "whereabouts rule" in the Court of Arbitration for Sport which sits in Lausanne, Switzerland. They claim the rule violates their privacy. They also cite a European Union statute which requires that workers receive a minimum four weeks of paid vacation per year. Since they must indicate their whereabouts for every day, no vacation is possible from drug testing. The International Tennis Federation does not actually recognize any law as controlling its regulation of the sport, and it opposes the appeal. We should learn in about three months whether reason or rule will prevail.

The WADA rule has its defenders. A Norwegian academic explained that the rule constituted "nothing more than a logical and effective extension of [WADA's] methods... WADA is gradually moving from doing antidoping work with unarmed weapons to shooting with live ammunition." Andreas Thorkildsen, two-time Olympic gold medalist javelin thrower also from Norway, stated:"It's the price you have to pay to be a professional athlete. If you want to have a clean sport you have got to sacrifice something. And I don't think that's a very big sacrifice compared to other jobs." The International Association of Athletics Federation, the governing body for track and field and a great proponent of intrusive and arbitrary drug testing, added that only rich athletes were complaining about the new rule.

Others who support the rule complain that opponents offer no other way to keep our sports free from the taint of drugs. Before 2009, however, WADA operated without its "whereabouts rule," and I felt safe watching tennis. British tennis player Andy Murray complained that WADA troopers "even turned up at my hotel in Miami while I was on holiday." Rafael Nadal called the whole process "an intolerable hunt." The international professional soccer establishment -- FIFA and UEFA -- rejected the WADA rule, worried about the "lack of respect of the private lives of players." A panel of the European Commission denounced the rule, but WADA wagged its finger in response: the panel's finding "could potentially undermine the fight against doping." WADA knows best.

The lesson to be learned from the enforcement of the WADA "whereabouts rule" should be one of balance. The regulation of performance enhancing drugs may be important, but it must be kept within bounds. We want athletes free of drugs, but also free to live their lives. Athletes who violate these rules are not evil, and they should not face the Spanish Inquisition.

Likely in jest, Yanina Wickmayer, whose career is on the line, suggested as an alternative that WADA should implant a computer chip in every tennis player. That way it would know the "whereabouts" of every athlete 24/7. I am sure someone at WADA headquarters in Montreal is investigating that possibility right now.