Which states parties should be held responsible for the implementation of positive obligations under the ECHR in sports-related disputes?

In sports society, awareness of human rights protection has gradually developed and sports governing bodies, such as the International Olympic Committee (IOC) and the Fédération Internationale de la Football Association (FIFA), have striven to commit the implementation of human rights guaranteed by internationally recognised human right treaties in the international community. However, human rights law cannot directly impose any legal obligations on sports governing bodies because they are non-state actors established by domestic private law. In this situation, how can international human rights law apply to the private relationship between non-state actors? According to the European Convention on Human Rights (ECHR), state parties must implement positive obligations to protect individuals against any violations caused by non-state actors within the jurisdiction. To implement the positive obligations under the ECHR, it is necessary to identify which state parties should be held responsible for the implementation in sports-related disputes because, in Mutu and Pechstein v. Switzerland, athletes claimed a violation of the ECHR against Switzerland on the ground that the Court of Arbitration for Sport (CAS) is located in Lausanne, Switzerland. However, it should be considered that Switzerland is not be liable for all violations of the ECHR’s rights caused by another state party. In light of this, the purpose of this article is to identify a hypothetical standard for determining which state parties should be held responsible for implementing the positive obligations under the ECHR.

Physical and sexual abuse against young athletes in sport in light of article 8 of the European Convention on Human Rights (ECHR)

Numerous young athletes have suffered from physical and sexual abuse at the hands of their coaches. Despite this, the European Court of Human Rights (ECtHR) has never dealt with a violation of child rights under the European Convention on Human Rights (ECHR) in the case of physical and sexual abuse in sport. In this situation, a question that may arise is how young athletes can argue a violation of their substantive rights under the Convention before the ECtHR in the case of such abuses? In this regard, the right to physical and mental integrity under Articles 10 (2) and 27 (2) of the Swiss Federal Constitution (SFC) as well as the prohibition of an excessive limitation of personal freedom under Article 27 (2) of the Swiss Civil Code (SCC) may play an essential role to build a bridge between the Convention rights and the fundamental human rights under national law in light of the SFT’s precedents within the meaning of substantive public policy under Article 190 (2) (e) of the Swiss Private International Law Act (PILA). Although the International Federations (IFs) have not recognised a legal standing of young athletes suffering from physical and sexual abuse, state parties to the ECHR must implement positive obligations under Article 8 (1) of the ECHR to take necessary measures to protect young athletes against such abuses by non-state actors and may require sports governing bodies within the jurisdiction to comply with Article 8 (1)’s obligations. Accordingly, this article might serve to clarify a duty of sports governing bodies to protect young athletes against such abuses through a lens of the ECHR.

Agents in the sporting field: a law and economics perspective

While agents have been active in the sporting field since the late 1800s, sports agents and their activities have grown in prominence only in more recent times, particularly as a result of typically adverse headlines. Agents are generally considered to be necessary (or some might say a necessary evil) for the sporting industry, in the representation of sportsmen and women, the consultation of sports clubs and franchises, or the facilitation of employment contracts and transfer deals. In contrast to players and clubs (not to mention sports federations and governing bodies), however, sports agents are not engaged in sporting endeavour. Rather, the essence of their role is an economic one for the provision of services. This peripheral position of sports agents implies that their interests are likely to be quite different from those of other stakeholders in the sports industry – but it also gives rise to a significant regulatory conundrum. This conundrum has become especially apparent in the sport of football in recent years, where various attempts at regulation of access to and the performance of the profession of football agent have been made at national and international level. The field of sports and football in particular clearly has a great societal impact and a large economic value. Yet, sports law is remarkably absent so far from the economic approach to law. From a law and economics perspective and in the light of regulation theory, therefore, our main research questions are whether there is a need to regulate the profession of sports agent and, if so, what type of regulation is needed.

The exchange of self-incriminating information of athletes between sports organisations and law enforcement

Sports organisations generally have the burden of proving sports rule violations of sportspersons subject to their rules and regulations. Sports rule violations can generally be proven by any reliable means. A common approach taken by sports organisations in this respect is the implementation of so-called cooperation and reporting obligations embedded in their regulations. On this basis, athletes can be obliged to provide all kind of documentary evidence related or unrelated to the matter under investigation. This may cause problems to the privilege against self-incrimination of athletes. In addition, obtaining self-incriminating information in internal sports investigations carried out by private sports organisations can have legal and personal consequences that go well beyond the professional life of athletes. The integrity of sport has been characterised as a public interest due to the social impact of amateur and professional sports in most societies. As a consequence, negative sports-related conduct, such as doping or the manipulation of sports competitions, has been criminalised in various national laws to protect sporting values and preserve the role model function of athletes for young members of our society. This development has led to cooperation between sports organisations and law enforcement agencies, such as prosecutors and the police. Specifically, both collaborate in order to assist the other party’s investigations of sports rule violations and criminal offences, respectively. However, the exchange of intelligence between sports organisations and law enforcement may cause some legal tension. If the same misconduct of athletes leads to both internal sports investigations and criminal proceedings, athletes could be forced to provide self-incriminating information in internal sports organisations, which could then be subsequently transmitted to law enforcement. This system of intelligence gathering raises serious concerns regarding the procedural fairness thereof, keeping in mind the detrimental effects for sportspersons under investigations. A closer look is thus necessary to the legitimacy of the exchange of intelligence. Therefore, the aim of this article is to shed some light on this issue and clarify if and under what conditions internally obtained evidence can be passed on to law enforcement agencies.

Daily fantasy sports and the law in the USA

This chapter examines legal, regulatory, and social issues surrounding the phenomenon of the daily fantasy sports (DFS) industry in the USA. Traditional fantasy sports contests largely involved groups of family or friends creating their own respective “fantasy” teams of real professional athletes, whose actual games results over the course of an entire season determined the success of one’s fantasy team. Fantasy sports contests were not considered gambling on sports, and federal legislation exempts “fantasy sports” from prohibitions against online gambling. As the name implied, DFS is a different product, offering users who pay the DFS operating company to select their team roster on a daily basis, competitions can occur over a day or a week depending on the contest, and among thousands of users, few of whom are consistent winners in the contests. The DFS commercials and advertisements are again blaring the airwaves. Major DFS operators are expanding their product lines and are now fully immersed in online, mobile, and casino sports gambling in states where legal. The DFS and sports gaming market is booming; the technology, analytics, user sophistication, financial stakes, and the distinction between DFS and gambling are increasingly blurred. This chapter considers the legal, regulatory, and social issues arising from the expanding DFS and sport gaming business.