The problem was that ter Stegen refused to give his consent for the club to pass on his medical records to La Liga. Without access to these records, it was impossible for La Liga to assess ter Stegen’s expected downtime and thus to approve García’s registration.
This controversy raises fundamental questions about the handling of employees’ health data and its use by employers without express consent. The EU’s General Data Protection Regulation makes it clear that this data belongs to the employee concerned and is subject to special protection. This means that the processing of health data is generally prohibited – unless the data subject has given their express consent or a legally established exception applies. In this case, no such exception was applicable, so ter Stegen’s consent was absolutely necessary.
In order to persuade the goalkeeper to give his consent, FC Barcelona initiated disciplinary proceedings against him, accusing him of refusing to follow the club’s instructions and thereby causing financial damage. The proceedings were later dropped by Barça after ter Stegen gave his consent to passing on the information to La Liga. For this reason, there will be no administrative or judicial decision. In my opinion, sanctioning ter Stegen would not have been justified and would not have stood up in court. The GDPR makes it unambiguously clear that every person – including employees and professional athletes – is the owner of their health data. This includes the right to freely decide whether or not to give consent to its disclosure to third parties. Refusal to give this consent is legally permissible, as the right to protection and confidentiality of medical data takes precedence over the financial or sporting interests of the club.
Cases involving doping, however, are to be assessed differently. While in these cases, in general the data fundamentally also belongs to the athlete, refusal to undergo testing can result in sanctions, including suspension of the athlete’s licence. The purpose of such sanctions, however, is to protect the integrity of sporting competition – not financial interests.