Sports investigations: the risky business of deleting phone apps

The UK’s Financial Conduct Authority (FCA) recently failed in its bid to prosecute Konstantin Vishnyak, a former banker, for deleting his WhatsApp messages in relation to an insider dealing investigation.^[1] The criminal prosecution, which was brought under the Financial Services and Markets Act 2000 (FSMA), failed because the FCA could not prove that Mr. Vishnyak intended to conceal from the investigator facts disclosed by the messages.

Despite the failure of this prosecution and the fact it was brought under FSMA, it serves as an important reminder of the severe consequences that sportspersons could face if they delete messages or otherwise seek to obstruct an investigation. Indeed, whereas defendants (including sportspersons) subject to criminal prosecution for the destruction of evidence will usually be able to rely on a lack of intent as a defence (as Mr. Vishnyak did), sportspersons being prosecuted by their sporting body may find themselves in a more vulnerable position due to the general absence of a requirement for intent to be proved in order for the prosecution to succeed. This article examines:

• The Vishnyak prosecution
• The wider trend of prosecuting persons for destroying evidence
• Application to sports investigations
• Key lessons for athletes