Balancing parallel governing body and police investigations: When to press pause and when to push back

Whenever a governing body is confronted with facts that suggest serious misconduct has occurred in sport, there is a good chance that – sooner or later – a national law enforcement agency will be engaged. Indeed, where the suspected misconduct is criminal in nature, it will frequently be the governing body itself that will invite law enforcement involvement. If the matter progresses to the stage where police open a formal investigation of their own, almost invariably the governing body will be asked to suspend their enquiries, allowing national law enforcement to take the lead. Historically, these requests have been granted, without question. An example (to which this article will return) is the Football Association’s (“The FA”) 2012 case against John Terry for on-field, racially aggravated abuse of another player[1].

However, some sports are beginning to query whether this should always be the case. Governing bodies are under increasing pressure to enforce standards of integrity and to safeguard participants from harm. Where the reputation of the sport and the safety and well-being of individuals is at stake, governing bodies and their agents will be under a duty to establish the facts and implement a response as quickly as practicably possible.

Large scale law enforcement investigations, on the other hand, are often slow-paced: years – even decades – may pass before potential criminal proceedings definitively conclude. In the climate in which integrity and safeguarding investigations are now carried out, it is no longer wise for governing bodies automatically to pause their own enquiries at the behest of national agencies. Sometimes, it may be in the interest of the governing body to push back.

This article examines if/when such pushback is appropriate, and how it might be achieved. It identifies why law enforcement (and on occasions, individual suspects) might wish sports’ governing processes to be halted pending the outcome of criminal investigations and/or proceedings: the authors’ aim is to distinguish good reasons - which should be respected - from less persuasive reasons, which may legitimately be rejected. It will end by outlining practical measures which governing bodies might take in the short term, to guide their decision-making and protect their own processes in future.

The authors have drawn upon their vast experience around the intersection of criminal law and regulatory risk.

An outline

• Three main reasons given for the police to be given priority
  • To preserve the viability of a police operation to combat organised crime
  • To preserve evidence
  • Basic standards of evidence gathering
  • An exception: imminent police raids
  • To preserve the interests of justice in pending or future criminal proceedings
    • Prejudicing the suspect’s right to a criminal trial
    • Multiple proceedings against the same suspect may be construed as oppression
    • Preventing jury members from being influenced by the sports governing body’s proceedings
  • Conclusion: Practical Measures