Sports Investigations Law and the ECHR

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 *