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 ones 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 *
