Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see here, here and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...

On 24 and 25 October, the Asser Institute will host an advanced professional training co-organised by Ben Van Rompuy and Antoine Duval focused on 'EU competition law and transnational sports governance'. The training is building on their experience acting as legal advisors for the complaint submitted to the European Commission (EC) by two Dutch speed-skaters, Mark Tuitert and Niels Kerstholt, against the International Skating Union (ISU), leading to the first negative decision rendered by the EC against an international sports governing body (SGB).  

The training will consist of: 

• An in-depth introduction to the specific application of EU competition law to transnational sports governance

• Specific sessions on the different (national, European and transnational) processes (both judicial and administrative) through which EU competition law claims can be raised against international SGBs

• A concrete case study during which the group will be divided into teams representing different sides of a competition law claim involving an SGB

• A round-table with  leading experts in EU competition law and sports for an interactive discussion on future developments in this area

[More information and registration HERE]

Why this professional training? 

Transnational sports governance is not neutral, its exercise comes with considerable economic effects and consequences, which can be controversial. In recent years we have witnessed an uptick of challenges on the basis of EU competition law against the governance decisions of international SGBs. In 2017, the European Commission for the first time adopted a decision finding a sporting rule (the ISU’s Eligibility Rules prohibiting skaters from participating in third-party events) in violation of EU competition law. Since then, we have seen a string of decisions by national competition authorities and high-profile private actions being launched against, for instance, UEFA and FIFA by the European Super League Company, football club Royal Antwerp F.C. or football agents. In short, EU competition law has become the main legal avenue through which regulations and decisions of international SGBs are being contested– both from outside the Olympic family and within. It is therefore crucial that sports stakeholders become proficient in the language of EU competition law, in understanding the specificities of its application to transnational sports governance, and in grasping the intricacies of the legal processes that can be used to do so. 

Is this training for you? 

This training is primarily aimed at professionals involved in the field of sports governance, such as legal counsels of SGBs, practicing lawyers active in the sports sector, public servants involved in the enforcement of competition law in the sporting context, and representatives of athletes, clubs and other sports stakeholders.  The advanced training will be both interactive, focusing on open exchanges between experts and participants, and participative, with the preparation of a case study in smaller groups.  

[More information and registration HERE]

Speakers include:

• Prof. Stephen Weatherill
• Prof. An Vermeersch
• Mark E. Orth
• Dr. Ben Van Rompuy
• Dr. Antoine Duval

[More information and registration HERE]

Programme

Day 1 - Tuesday, 24 October

12:30 – 13:00 - Registration

13:00 – 13:30 - Welcome and introduction - Antoine Duval & Ben Van Rompuy

13:30 – 15:00 - How EU competition law applies to transnational sports governance: Key doctrines and cases  - Antoine Duval & Ben Van Rompuy

15:00 – 15:30 Coffee Break

15:30 – 16:30 - Bringing a competition law case against SGBs before the European Commission: Lessons from the ISU case  - Ben Van Rompuy & Antoine Duval

16:30 – 17:30 - Bringing a competition law case against SGBs in national courts: The German experience -  Mark E. Orth

17:30 – 18:00 - Bringing a competition law case against SGBs before the CAS: Opportunities and challenges -  Antoine Duval

19:00 - Dinner

Day 2 - Wednesday, 25 October

9:00 – 12:00 - Case study on FIFA’s Football Agent Regulations and EU competition law - Antoine Duval, Ben Van Rompuy, Mark E. Orth

12:00 – 13:00 Lunch

13:00 – 15:00 - Case study on FIFA’s Football Agent Regulations and EU competition law - Antoine Duval, Ben Van Rompuy, Mark E. Orth, An Vermeersch and Stephen Weatherill

15:00 – 15:30 - Coffee Break

15:30 – 17:00 - Closing discussion on the future of EU competition law and transnational sports governance - Antoine Duval, Ben Van Rompuy, Mark E. Orth, An Vermeersch, and Stephen Weatherill  

Join us for a round table co-organized by GLawNet and the Asser Institute at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels) just one day after the publication of the Opinion of Advocate General Rantos in the European Super League (ESL) case. The discussion between academics and stakeholders will focus on the role played by the EU, as well as the role it ought to play, in determining the way football is organised and governed.

In 2021, the announcement of the creation of a breakaway European Super League (ESL), as well as the drama of its early demise, stunned the world.  Since then, the company behind the ESL and UEFA (as well as FIFA) are locked into a legal battle that will soon come to an end at the Court of Justice of the European Union (CJEU). Following the preliminary questions raised by a Spanish court, the CJEU will weigh in on whether UEFA and FIFA breached EU competition law with their attempts to thwart the emergence of the ESL. It will not be the first time that the governing bodies of football, both Swiss associations, face scrutiny before the EU courts - many will remember the 1995 Bosman ruling. However, this time around various stakeholders and observers are calling for the EU to not only referee this particular dispute, but to as well start playing a stronger governance role by regulating European football.

Programme:

15:00 – 15:05 Opening: Mariolina Eliantonio (Maastricht University)

15:05 – 16:30 - Roundtable: Governing European Football: What role for the European Union?
Moderator: Carlo Colombo (Maastricht University)

•        Antoine Duval (Senior Researcher at the Asser Institute)
•        Benoit Keane (Keane Legal)
•        Alexander Bielefeld (Director Global Policy and Strategic Relations at FIFPro)
•        Arnout Geeraert (Assistant Professor, Utrecht university)

16:30 Reception

This is an In-Person event only and will take place at the Campus Brussels of the Maastricht University (Avenue de Tervueren 153, 1150 Brussels). If you wish to attend, please register HERE.

Supported by

Call for papers

ISLJ Conference on International Sports Law

Asser Institute, The Hague

25 and 26 October 2022

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 25 and 26 October 2022 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We are delighted to announce the following confirmed keynote speakers:

• Jonathan Grix (Professor of Sport Policy and Politics at Manchester Metropolitan University), and
• Mary Harvey (CEO at the Centre for Sport and Human Rights),
• Ben Van Rompuy (Assistant Professor at Leiden University).

We welcome abstracts from academics and practitioners on all issues related to international sports law and governance. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes and subthemes:

• International sports law and governance in times of conflict:
• The emergence of the idea(l) of political neutrality of SGBs and its translation in legal/governance practice
• The intersection between public international law and international sports law and governance in the context of international conflicts
• The role of sports diplomacy/conditionality in the context of international conflicts
• International sports law and the Russian invasion of Ukraine

• Human rights and mega sporting events (MSEs)
• The adverse or positive impact of MSEs on (specific) human rights
• The influence of human rights commitments on the organisation of MSEs
• The effects of MSEs on human rights in organising countries
• The responsibilities and strategies of SGBs to ensure respect of human rights at MSEs
• The role and responsibilities of states in ensuring respect of human rights in the context of MSEs

• Competition law and challenges to the governance monopoly of SGBs
• The impact of competition law on SGBs and their governance
• The limits of competition law on effecting change in the governance of sport
• The specific modalities of application of competition law to sports governance
• The legitimacy of competition authorities in challenging SGBs

Please send your abstract of 300 words and CV no later than 1 July 2022 to a.duval@asser.nl. Selected speakers will be informed by 15 July.

The selected participants will be expected to submit a draft paper by 10 October 2022. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. Submissions after this date will be considered for publication in later editions of the Journal.

The Asser Institute will cover one night accommodation for the speakers and may provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant, please indicate it in your submission.

Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity. More...

On Wednesday 20 January 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret, is organising a Zoom In webinar on the recent judgment of the General Court in the case International Skating Union (ISU) v European Commission, delivered on 16 December 2016. The Court ruled on an appeal against the first-ever antitrust prohibition decision on sporting rules adopted by the European Commission. More specifically, the case concerned the ISU’s eligibility rules, which were prohibiting speed skaters from competing in non-recognised events and threatened them with lifelong bans if they did (for more details on the origin of the case see this blog). The ruling of the General Court, which endorsed the majority of the European Commission’s findings, could have transformative implications for the structure of sports governance in the EU (and beyond).

We have the pleasure to welcome three renowned experts in EU competition law and sport to analyse with us the wider consequences of this judgment.

Guest speakers:

• Dr. Ben Van Rompuy (Leiden University & representative of the complainants before the EC)
• Dr. Katarina Pijetlovic (Manchester Metropolitan University)
• Prof. Stephen Weatherill (Oxford University)

Moderators:

• Dr Antoine Duval (Asser Institute)
• Dr Marjolaine Viret
  

Registration HERE

Zoom In webinar series

In December 2020, The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret launched a new series of zoom webinars on transnational sports law: Zoom In. You can watch the video recording of our first discussion on the arbitral award delivered by the Court of Arbitration for Sport (CAS) in the Blake Leeper v. International Association of Athletics Federations (IAAF) case on the Asser Institute’s Youtube Channel. Click here to learn more about the Zoom In webinar series.

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

As we begin plunging into a new decade, it can be helpful to look back and reflect on some of the most influential developments and trends from 2019 that may continue to shape international sports law in 2020 and beyond. Hence, this piece will not attempt to recount every single sports law news item but rather identify a few key sports law stories of 2019 that may have a continued impact in the 2020s. The following sections are not in a particular order.More...

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1        Introduction

The International Olympic Committee (IOC), after many years of ineffective pushback (see here, here and here) over bye law 3 of rule 40[1] of the Olympic Charter (OC), which restricts the ability of athletes and their entourage to advertise themselves during the ‘blackout’ period’[2] (also known as the ‘frozen period’) of the Olympic Games, may have been gifted a silver bullet to address a major criticism of its rules. This (potentially) magic formula was handed down in a relatively recent decision of the Bundeskartellamt, the German competition law authority, which elucidated how restrictions to athletes’ advertisements during the frozen period may be scrutinized under EU competition law. The following blog begins by explaining the historical and economic context of rule 40 followed by the facts that led to the decision of the Bundeskartellamt. With this background, the decision of the Bundeskartellamt is analyzed to show to what extent it may serve as a model for EU competition law authorities. More...

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

The UCI may soon have to navigate treacherous legal waters after being the subject of two competition law based complaints (see here and here) to the European Commission in less than a month over rule changes and decisions made over the past year. One of these complaints stems from Velon, a private limited company owned by 11 out of the 18 World Tour Teams,[1] and the other comes from the Lega del Ciclismo Professionistico, an entity based in Italy representing an amalgamation of stakeholders in Italian professional cycling. While each of the complaints differ on the actual substance, the essence is the same: both are challenging the way the UCI exercises its regulatory power over cycling because of a growing sense that the UCI is impeding the development of cycling as a sport. Albeit in different ways: Velon sees the UCI infringing on its ability to introduce new race structures and technologies; the Lega del Ciclismo Professionistico believes the UCI is cutting opportunities for semi-professional cycling teams, the middle ground between the World Tour Teams and the amateur teams.

While some of the details remain vague, this blog will aim to unpack part of the claims made by Velon in light of previous case law from both the European Commission and the Court of Justice of the European Union (CJEU) to give a preliminary overview of the main legal issues at stake and some of the potential outcomes of the complaint. First, it will be crucial to understand just who/what Velon is before analyzing the substance of Velon’s complaint. More...

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

The organizational structure of sports in Europe is distinguished by its pyramid structure which is marked by an open promotion and relegation system. A truly closed system, without promotion and relegation, is unknown to Europe, while it is the main structure found in North American professional sports leagues such as the NFL, NBA and the NHL. Recently, top European football clubs along with certain members of UEFA have been debating different possibilities of introducing a more closed league system to European football. Some football clubs have even wielded the threat of forming an elite closed breakaway league. Piercing through these intimidations and rumors, the question of whether a closed league system could even survive the scrutiny of EU competition law remains. It could be argued that an agreement between clubs to create a completely closed league stifles competition and would most likely trigger the application of Article 101 and 102 TFEU.[1] Interestingly, a completely closed league franchise system has already permeated the European continent. As outlined in my previous blog, the League of Legends European Championship (LEC) is a European e-sports competition that has recently rebranded and restructured this year from an open promotion and relegation system to a completely closed franchise league to model its sister competition from North America, the League Championship Series. This case is an enticing opportunity to test how EU competition law could apply to such a competition structure.

As a preliminary note, this blog does not aim to argue whether the LEC is a ‘real’ sport competition and makes the assumption that the LEC could be considered as a sports competition.[2]

More...

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.

1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations. More...

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.

Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)

Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum. More...

Editor's note: Andy Brown is a freelance journalist who has been writing about the governance of sport for over 15 years. He is the editor of The Sports Integrity Initiative where this blog appeared first.

For the last three days, I have been struggling with what to write regarding the Swiss Federal Tribunal’s (SFT) Decision to dismiss a challenge from Caster Semenya and Athletics South Africa (ASA) against the Court of Arbitration for Sport’s (CAS) Decision to dismiss a challenge to the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), otherwise known as the DSD Regulations. From reading World Athletics’ statement welcoming the ruling, one could be forgiven for thinking that it had won a major trial. Sports journalists, accustomed to covering events now curtailed by Covid-19, focus on the fact that Semenya has ‘lost’ her case against the DSD Regulations. Neither assertion is strictly accurate.

The SFT’s powers to review the CAS’s ruling are severely limited. It can only consider whether the CAS Decision violates ‘widely recognised principles of public order’ on Swiss public policy grounds. The SFT has only reversed a decision based on a a violation of Swiss public policy once in 30 years.

The SFT didn’t reconsider the evidence put forward to the CAS. ‘For there to be incompatibility with public policy, it is not enough that the evidence has been poorly assessed, that a finding of fact is manifestly false or that a rule of law has been clearly violated’, its Decision reads. ‘The only question to be resolved is in fact whether or not the verdict of the CAS renders the referred award incompatible with substantive public policy’. 

There were questions about whether the appeal from Semenya and ASA qualified to be reviewed by the SFT in the first place. World Athletics is a private organisation headquartered in Monaco, and the SFT was troubled as to whether such a complaint brought by a South African athlete against an overseas private organisation is capable of violating Swiss public policy.

‘It is doubtful whether the prohibition of discriminatory measures falls within the scope of the restrictive concept of public order when the discrimination is committed by a private person and occurs in relations between individuals’, the Decision quotes from its pervious 29 July 2019 Decision, which refused the ASA’s request to provisionally suspend the application of the DSD Regulations. ‘In any event, there is no need to examine this question further here since […] the award under appeal does not in any way establish discrimination which would be contrary to public order’. 

The SFT ruled that the CAS was correct to uphold conditions of participation for 46 XY DSD athletes in order to guarantee fair competition for certain disciplines in female athletics. In doing so, the SFT was ruling on whether the decision taken by the CAS violates public policy, based only on the complaints brought forward by Semenya and ASA. 

Semenya and the ASA had challenged the CAS Decision based around the idea that the DSD Regulations are discriminatory. The CAS held that they are discriminatory, but agreed with the IAAF (as World Athletics was then named) that such discrimination was necessary to protect its female category. The SFT ruled that even if the discriminatory rules of a private organisation such as the IAAF were considered able to pose a threat to public order, Semenya and the ASA had failed to demonstrate that the CAS Decision was so egregious that it posed such a threat.

‘Caster Semenya essentially alleges a violation of the prohibition of discrimination’, reads the Swiss Federal Supreme Court statement. ‘The CAS has issued a binding decision based on the unanimous opinion of the experts who were consulted that testosterone is the main factor for the different performance levels of the sexes in athletics; according to the CAS, women with the “46 XY DSD” gene variant have a testosterone level comparable to men, which gives them an insurmountable competitive advantage and enables them to beat female athletes without the “46 XY DSD” variant. Based on these findings, the CAS decision cannot be challenged. Fairness in sport is a legitimate concern and forms a central principle of sporting competition. It is one of the pillars on which competition is based. The European Court of Human Rights also attaches particular importance to the aspect of fair competition. In addition to this significant public interest, the CAS rightly considered the other relevant interests, namely the private interests of the female athletes running in the “women” category.’

Such strong support for the principle behind its DSD Regulations was rightly welcomed by World Athletics. Its statement asserted that the SFT ‘acknowledged that innate characteristics can distort the fairness of competitions’. I would argue that the SFT ruling didn’t do this, but rather found that a CAS Decision asserting this didn’t violate Swiss public policy. Semantics, perhaps.

Likewise, when World Athletics quotes the SFT Decision as confirming that ‘It is above all up to the sports federations to determine to what extent a particular physical advantage is likely to distort competition and, if necessary, to introduce legally admissible eligibility rules to remedy this state of affairs’, it is paraphrasing two texts quoted in the SFT Decision. The first is ‘La qualification juridique des rules autonomes des organizations sportive’ by Jérôme Jaquier, 2004. ‘Inborn characteristics specific to athletes in a particular group can also distort the fairness of competition’, the SFT Decision quotes from Jaquier. ‘When they enact regulations, the objective of sports federations is to ensure fair and equitable competition’.

The context of the second quote, from ‘Sportrecht – Berücksichtigung der Interessen des Sports in der Rechtsordnung’ by Martin Kaiser, 2011, is even more interesting. It is preceded with a statement from the Swiss Federal Supreme Court, which reads: ‘It is not for the Federal Court to make, abstractly, comparisons between the disciplines to assess whether a particular athlete has an advantage that makes sporting competition meaningless’. 

‘It is above all for the sporting federations to determine to what extent a particular physical advantage is liable to distort competition’, the SFT Decision quotes from Kaiser. ‘And, if so, to establish legally admissible eligibility rules to remedy this state of affairs’. 

Again, such details might be considered as semantics. But – I would argue – important semantics. Reading the media maelstrom that has resulted from the SFT Decision, one could be forgiven for assuming that Semenya has lost her case, and has no chance of ever defending her 800m title. However, a statement issued by her lawyers reveals that she intends to challenge the ruling in European and domestic courts.

“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am”, the statement continues. “Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.” More...

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet! More...

Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of Economics.

Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward some concerning reasoning in terms of public policy (“ordre public”) and human rights. In case Semenya decides to challenge the Swiss state before the ECtHR, one can expect the case to shake some grounds at the ECtHR, which would be faced with the question of the application to sport not of fair trial guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right to private life (Article 8 ECHR).

Under Swiss law, the reasons that may lead to the annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act (PILA). Semenya’s strongest case relied on art. 190(2)(e): the award’s incompatibility with public policy. Naturally, this point concentrated most of the SFT’s attention. In order to analyze the compatibility of the CAS award with Swiss public policy, the SFT focused on three main potential breaches of human rights: prohibition of discrimination, personality rights, and human dignity. In doing so, it put forward certain observations that differ with European human rights standards and the ECtHR’s jurisprudence. The purpose of this short article is to analyze those discrepancies and, consequently, Semenya’s prospects of success before the Strasbourg Tribunal.More...

Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).More...

Editor's note: Roger Pielke Jr. is a professor at the University of Colorado Boulder

The decision this week by the Swiss Federal Tribunal not to revisit the arbitral decision of the Court of Arbitration for Sport (CAS) in the case of Caster Semenya was not unexpected, but it does help to expose a major design flaw in international sports governance. Specifically, the institutions that collectively comprise, create and enforce “sports law” appear incapable of addressing flawed science and violations of basic principles of medical ethics.

While different people will have different, and legitimate, views on how male-female competition classifications might be regulated, the issues highlighted involving science and ethics are not subjective, and are empirically undeniable. In normal systems of jurisprudence, procedures are in place to right such wrongs, but in sports governance processes in place prevent such course corrections. And that is a problem.

The empirical flaws in the science underpinning the IAAF (now World Athletics) Semenya regulations are by now well understood, and have been accepted by WA in print and before CAS (I was an expert witness for Semenya, and was present when IAAF accepted responsibility for the flawed research). You can read all the details here and in the CAS Semenya decision. I won’t rehash the flawed science here, but the errors are fatal to the research and obvious to see.

One key part of the comprehensive institutional failures here is that the journal which originally published the flawed IAAF research (the British Journal of Sports Medicine, BJSM) has, inexplicably, acted to protect that work from scrutiny, correction and retraction. Normally in the scientific community, when errors of this magnitude are found, the research is retracted. In this case, the BJSM refused to retract the paper, to require its authors to share their data or to publish a critique of the IAAF analysis. Instead, upon learning of the major errors, the BJSM published a rushed, non-peer reviewed letter by IAAF seeking to cover-up the errors. All of this is non-standard, and a scandal in its own right.

The violation of basic principles of medical ethics required by the implementation of the WA Semenya regulations is also not contested. Both WA and the IOC have claimed to uphold the World Medical Association’s Helsinki Declaration on medical and research ethics. Yet, the WMA has openly criticized the WA regulations as unethical and asked doctors not to implement them. In response, WA has stated that it will help athletes who wish to follow the regulations to identify doctors willing to ignore medical ethics guidelines.

Flawed science and ethical violations are obviously issues that go far beyond the case of Caster Semenya, and far beyond sport. In any normal system of jurisprudence such issues would prove readily fatal to regulatory action, either in the first instance of proposed implementation or via review and reconsideration.

Sport governance lacks such processes. At CAS, the panel claimed that matters of scientific integrity and medical ethics were outside their remit. The SFT is allowed to reconsider a CAS decision only on narrow procedural grounds, and thus also cannot consider matters of scientific integrity or medical ethics. So far then, the flaws in the WA regulations – sitting in plain sight and obvious to anyone who looks, have not been correctable.

This leaves the world of sport governance in a compromised position. Some may look past the scientific and ethical issues here, perhaps judging that barring Semenya from sport is far more important that correcting such wrongs. 

Regardless of one’s views on sex and gender classification in sport, the WA regulations and the processes that produced and have challenged them reveal that sports governance has not yet entered the 21^st century. Science and ethics matter, and they should matter in sport jurisprudence as well.  It is time to correct this basic design flaw in international sport governance.

Editor's note: Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne

1.     Caster Semenya appealed to the Swiss Federal Court (SFT) arguing that World Athletics’ regulations violated human rights principles relating to gender discrimination and human dignity. The Swiss Federal Tribunal (as at CAS) held that World Athletics’ regulations may prima facie breach such human rights principles but were “necessary, reasonable and proportionate” to maintain fairness in women's athletics;

2.     Although in part addressed at the SFT, expect further legal argument on this in the domestic courts of South Africa or at the ECtHR, and in the following ways:

• Necessity - is the athletic advantage that Caster Semenya has of such a scientifically-measurable extent that it is necessary for World Athletics to intervene in such an invasive manner? In a broader ethical sense, is the incidence of what the World Athletics’ regulations call “difference of sex development” of such prevalence in the general population, and specifically in middle-distance athletics, that, by way of the principle of “sporting beneficence”, intervention is justified. Or, in contrast, is the incidence of DSD not at a level which justifies a departure from the ethical principle of primum non nocere – first, do no harm?

• Reasonableness - if World Athletics’ regulations are necessary, is the manner of implementation reasonable and in line with the principle of human and bodily integrity? In answering such a question, the focus must be on the fact that in order to continue to compete in her favourite events (such as the 800 metres) Caster Semenya will have to lower her testosterone level through medication;

• Proportionate - if World Athletics’ regulations are necessary and reasonable is the manner of implementation proportionate? In answering such a question, the focus must be on whether the regulations disproportionately discriminate against a certain, limited group of athletes in a certain, limited number of events and in a certain, limited manner.More...

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

On 25 August 2020, the Swiss Supreme Court (Swiss Federal Tribunal, SFT) rendered one of its most eagerly awaited decisions of 2020, in the matter of Caster Semenya versus World Athletics (formerly and as referenced in the decision: IAAF) following an award of the Court of Arbitration for Sport (CAS). In short, the issue at stake before the CAS was the validity of the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation). After the CAS upheld their validity in an award of 30 April 2019, Caster Semenya and the South African Athletics Federation (jointly: the appellants) filed an application to set aside the award before the Swiss Supreme Court.[1] The SFT decision, which rejects the application, was made public along with a press release on 8 September 2020.

There is no doubt that we can expect contrasted reactions to the decision. Whatever one’s opinion, however, the official press release in English does not do justice to the 28-page long decision in French and the judges’ reasoning. The goal of this short article is therefore primarily to highlight some key extracts of the SFT decision and some features of the case that will be relevant in its further assessment by scholars and the media.[2]

It is apparent from the decision that the SFT was very aware that its decision was going to be scrutinised by an international audience, part of whom may not be familiar with the mechanics of the legal regime applicable to setting aside an international arbitration award in Switzerland.

Thus, the decision includes long introductory statements regarding the status of the Court of Arbitration for Sport, and the role of the Swiss Federal Tribunal in reviewing award issued by panels in international arbitration proceedings. The SFT also referred extensively throughout its decision to jurisprudence of the European Court of Human Rights (ECtHR), rendered in cases related to international sport and the CAS. More...

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.    

The Headlines

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