Sports Investigations Law and the ECHR Collection, Use and Exchange of Intelligence

Table of Contents

A. Acknowledgements *

B. Abbreviations *

C. Introductory comments *

D. Analytical framework: the European Convention on Human Rights *

I. Self-commitment *

II. The protection of human rights in sports-related disputes *

1. The positive obligations of the Signatories to the ECHR *

a) Third-party effects in national constitutional laws *

aa) Germany *

bb) Switzerland *

cc) US law *

(1) The public functions test *

(a) The encouragement of private actors by the government *

(b) Entwined state involvement *

(2) If a nexus is found under the state action doctrine *

b) Horizontal effect of the ECHR in sport-related matters *

2. The compulsive nature of sports regulations and its legal effects *

a) Substantive invalidity of compulsory rules recognition contracts? *

b) The doctrine of unconscionability and breach of morality rights *

c) The predominant criterion of fairness *

d) The forced nature of sports regulations and the applicability of the ECHR *

3. Interim conclusion *

III. Establishing legal fairness in sporting matters - The principle of proportionality *

1. Suitability and necessity *

2. Proportionality in a narrow sense *

a) The competing interests of the parties *

aa) Interests of sports organisations *

(1) The fight against doping *

(2) Match-fixing and other forms of sports competition manipulation *

(3) Corruption and unethical behaviour *

bb) Interests of investigated sportspersons *

(1) Procedural rights in sports investigation proceedings *

(a) The applicability of Article 6(1) of the ECHR to sports investigations proceedings *

(aa) The applicability of the principle of procedural fairness in sports arbitration *

(bb) Consequences for sports investigation proceedings *

(b) The applicability of criminal procedure principles in sports investigation procedures *

(aa) The assumed civil nature of sports regulations *

(bb) Determination of the true nature of sports regulations in sports proceedings *

i. Classification in national law *

ii. Nature of the offence *

iii. Nature and degree of severity of the sanction *

(cc) The doctrine of sports regulation classification *

(c) Procedural safeguards during sports investigation proceedings *

(aa) Commencement of investigations *

(bb) Intelligence management *

(2) The right to respect for private life pursuant to art 8(1) of the ECHR *

b) Further factors to be considered in the balancing process *

aa) The purpose of sports investigations *

(1) Preventive and repressive nature *

(a) Preventive sports investigations *

(b) Repressive sports investigations *

(2) Necessary differentiation between repressive and preventive investigations *

bb) The mandatory nature of sports rules and regulations in organised sport *

cc) Passive or active coercive measures *

dd) Final considerations on the principle of proportionality *

IV. Interim conclusion *

E. The gathering of intelligence and evidence in sports investigations *

I. Threshold for the commencement of sports investigations *

II. Coercive measures in sports investigations *

1. Interrogations and the disclosure of personal information and documentary evidence *

a) Introductory remarks *

b) Threshold for a request for disclosure of personal information *

c) Legitimacy of data processing in sports investigations *

aa) Content of information *

(1) Data without any connection to the investigated matter *

(2) Information related to the investigated matter *

bb) Source of information *

(1) Mobile phone data, emails and other electronic messages *

(a) Anti-doping investigations *

(b) Corruption and unethical behaviour investigations *

(c) Social media accounts *

(d) Health records *

(e) Bank documents *

cc) The principle of procedural fairness *

(1) The privilege against self-incrimination and the right to remain silent *

(a) The protection of documentary evidence under the right not to incriminate oneself and the right to remain silent *

(aa) European Court of Justice (‘CJEU’) *

(bb) ECtHR *

(cc) National courts *

(dd) The privilege in sports investigation proceedings *

(b) Limitation of the privilege against self-incrimination and the right to remain silent *

(aa) Nature and degree of compelling obligation *

(bb) Weight of interest to investigate and prosecute sports rule violations *

(cc) Procedural safeguards *

(c) Legal persons under investigation and the nemo tenetur principle *

(aa) Independent will of a legal person *

(bb) Protection against abusive coercive measures *

(2) The right to refuse to give evidence *

(3) The presumption of innocence *

(4) Compulsion to answer *

(5) Compulsion to attend interview *

dd) Waiver and statutory abrogation of fundamental procedural rights *

(1) Compulsory waiver *

(2) Deprival by law *

ee) Interim conclusion: Fundamental procedural rights of sportspersons *

d) The access to personal data and documents of minor athletes *

aa) Protection of minors by sports regulations *

bb) Mandatory laws and the protection of personal information of minors *

e) Interim conclusion: Interrogations and disclosure of documentary evidence *

2. The surveillance of communications *

a) Threshold for communications surveillance measures *

b) Justification for the use of communications surveillance *

aa) Telecommunications surveillance *

(1) Interference with privacy and personality rights of athletes *

(2) Justification for wiretapping in internal sports investigation proceedings *

(a) Conversations between members and non-members *

(b) Correspondence between two members *

(3) Interim conclusion: Telecommunications surveillance measures *

bb) Surveillance of in-person conversations *

(1) Interference with privacy and personality rights of sportspersons *

(a) Acoustic surveillance of private premises *

(b) Acoustic surveillance outside of private premises *

(2) Justification of acoustic surveillance *

(a) Internal sports investigations *

(b) Internal investigations conducted by employers *

(3) Interim conclusion: Surveillance of in-person conversations *

cc) Electronic surveillance of computers and mobile phones *

dd) Undercover agents *

(1) What are undercover agents and how do they operate? *

(2) Justifications for the use of undercover agents in sports investigations *

(a) Mere observation *

(b) Entrapment *

(3) Interim conclusion: Undercover agents *

c) Interim findings: The surveillance of communications in sports investigations *

3. Video surveillance and photographs *

a) Threshold and scope of protection *

b) Justifications for video surveillance measures and photographs *

aa) Justification *

(1) Video surveillance of private premises *

(a) Covert video surveillance *

(b) Open video surveillance *

(2) Video surveillance outside of private premises *

(a) Open video surveillance *

(b) Covert video surveillance *

(aa) Covert video surveillance in a non-public context *

(bb) Covert video surveillance in public areas *

bb) Interim conclusion: Video surveillance *

4. Search and seizure *

a) Threshold for search and seizure *

b) Justifications for searches of the house, body or property *

aa) House search and home visits *

bb) Home visits *

cc) Searches of persons and property *

(1) Body search *

(a) Doping control *

(b) Pre-game body searches *

(2) Search of objects *

(a) Deliberate technology doping *

(b) Unfair advantages without one’s fault *

(c) Search of sport equipment during investigations of an asserted sports rule violation *

(d) Search of other property in possession of athletes *

dd) Seizure *

(1) Scope of protection *

(2) Justifications for the interference with possessory interests of athletes *

c) Interim conclusion: Search and seizure *

5. Polygraph test *

a) Methodology *

b) Legitimacy of polygraph tests in sports investigation proceedings *

aa) Substantive law *

bb) Procedural law *

c) Interim conclusion: Polygraph test *

6. Final considerations: Legitimacy through independent sports integrity bodies *

a) Gathering of intelligence by the independent sports integrity body *

b) Judicial authorisation of orders before the use of coercive measures *

c) Procedural safeguards *

d) Interim conclusion *

F. Use of information obtained in internal sports investigations *

I. The admissibility of illegally obtained information *

II. The use of legally obtained inadvertent discovery *

1. Admissibility of inadvertent discovery information *

2. Erasure of information not covered by the investigative power *

III. Intelligence obtained from third parties *

G. Exchange of information *

I. The exchange of information between sports organisations and law enforcement *

1. The confidentiality of gathered information *

2. Case study: Transfer of information in accordance with the GDPR *

a) The applicability of the GDPR to law enforcement agencies *

b) Lawfulness of processing *

aa) Performance of a task carried out in the public interest (Article 6(1)(e) GDPR) *

bb) Legitimate interest (Article 6(1)(f) GDPR) *

cc) Further issues revolving around data exchange in relation to the GDPR *

(1) The exchange of health information *

(2) International data exchange *

3. Reasonableness and proportionality of data exchange *

a) The overall principle of fairness in the exchange of personal information *

b) Substantive issues *

c) Issues arising from procedural law *

aa) State of criminal proceedings and probative value *

bb) Preventive and repressive sports investigation proceedings *

II. Exchange between sports organisations *

III. Exchange between sports associations and other third parties *

IV. Interim conclusion: Exchange of intelligence *

H. Conclusion *

Bibliography *

Table of cases *

I. ECtHR *

II. Switzerland *

III. Germany *

IV. United States of America *

V. United Kingdom *

VI. Australia *

VII. Canada *

VIII. India *

IX. European Court of Justice *

X. Court of Arbitration for Sport *

XI. Basketball Arbitral Tribunal *

XII. Association Tribunals *

Others *

Biography

Björn Hessert, Attorney-at-Law, is a Counsel to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. Previously, Björn was an academic at University of Zurich, Switzerland, and a Visiting Professor at Tashkent State University of Law, Uzbekistan. His research and teaching interests focus on sports law and arbitration. Björn has published widely on issues relating to, inter alia, sports integrity and investigations, doping, match-fixing, sports and human rights, and sports arbitration. He is a member of the Australian and New Zealand Sports Law Association (ANZSLA) and the Swiss Sports Law Association (ASDS). This book has been awarded with the ASDS Publication Award 2022.

"The examination of the rules, procedures and actions of sports bodies from a human rights perspective is an increasingly important area of legal research and study. This book examines the interaction of sports investigations with athletes and public prosecution authorities, highlighting a wide-range of evidence-gathering techniques and examining their compliance with the ECHR. This is essential reading for anyone interested in sports integrity and the way that suspected breaches are investigated and prosecuted in the sporting world."

Professor Mark James, Manchester Law School, Manchester Metropolitan University