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: 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: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at
the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in
International Law. In addition to research in human rights and feminist
legal theory, she has also carried out some research in legal philosophy and on
the relationship between gender and the law.
The International
Association of Athletics Federations (IAAF), the monitoring body of track and
field athletics, regularly submitted South African middle distance runner and
Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it
began questioning her sexual characteristics and speculating whether her body
belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often
defined as an “intersex condition” which affects the clear development of
either/or genitalia, gonads and chromosomes into one distinctive sex or
another. The spectrum of the intersex condition is particularly wide, and the
disorder can sometimes be minimal - some cases of female infertility can actually
be explained by an intersex condition.
The IAAF deemed the
controversial sex verification tests necessary on the grounds that it was
required to prove Semenya did not have a “medical condition” which could give
her an “unfair advantage”. It was eventually found that, because of an intersex
trait, Semenya did have abnormally high levels of testosterone for a woman,
which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments
in order for her to keep competing in the women’s category. The IAAF also funded
research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018,
it issued Eligibility Regulations on Female Classification (“Athlete with
Differences of Sexual Development”) for events from 400m to the mile, including
400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of
an existing high level of testosterone, suppression or regulation by
chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory
in order to take part in these events.
Semenya and her
lawyers challenged the IAAF Regulations in front of the CAS, who, in a very
controversial decision, deemed the Regulations a necessary, reasonable
and proportionate mean “of achieving the aim of what is described as the
integrity of female athletics and for the upholding of the ‘protected class’ of
female athletes in certain events” (§626). 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
Caster Semenya learns that it is not always easy for
victims of discrimination to prevail in court
The world of sport
held its breath as the Secretary General of the Court of Arbitration for Sport
(CAS) Matthieu Reeb stood before
the microphones on 1
May 2019 to announce the verdict reached by three arbitrators (one of them dissenting)
in the landmark case involving the South African Olympic and world champion
Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the
conclusion that the IAAF’s regulations requiring female athletes with
differences of sexual development to reduce their natural testosterone level
below the limit of 5 nmol/L and maintain that reduced level for a continuous
period of at least six months in order to be eligible to compete
internationally at events between 400 metres and a mile, were necessary,
reasonable and proportionate to attain the legitimate aim of ensuring fair competition
in female athletics, even though the panel recognised that the regulations were
clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For
the time being, this appears to be a good move since the tribunal ordered the
IAAF at the beginning of June to suspend the application
of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run
medication-free.
Champions League ban looms on Manchester City
On 18 May 2019,
Manchester City completed a historic domestic treble after defeating Watford
6-0 in the FA Cup Final. And yet there is a good reason to believe that the
club’s executives did not celebrate as much as they would under normal
circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club
Financial Control Body (CFCB) had decided to refer
Manchester City’s case
concerning allegations of financial fair play irregularities to the CFCB
adjudicatory chamber for a final decision. Thus, the chief investigator most
likely found that Manchester City had indeed misled UEFA over the real value of
its sponsorship income from the state-owned airline Etihad and other companies
based in Abu Dhabi, as the leaked internal emails and other documents published
by the German magazine Der Spiegel suggested. The chief investigator is also
thought to have recommended that a ban on participation in the Champions League
for at least one season be imposed on the English club. The club’s
representatives responded to the news with fury and disbelief, insisting that
the CFCB investigatory chamber had failed to take into account a comprehensive
body of irrefutable evidence it had been provided with. They eventually decided
not to wait for the decision of the CFCB adjudicatory chamber, which is yet to
be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.
The Brussels Court of Appeal dismisses Striani’s
appeal on jurisdictional grounds
The player agent
Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction
to entertain his case targeting UEFA’s financial fair play regulations. On 11
April 2019, the respective court dismissed his appeal against the judgment of
the first-instance court without pronouncing itself on the question of
compatibility of UEFA’s financial fair play regulations with EU law. The court
held that it was not competent to hear the case because the link between the
regulations and their effect on Mr Striani as a player agent, as well as the
link between the regulations and the role of the Royal Belgian Football
Association in their adoption and enforcement, was too remote (for a more
detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the
European Court of Justice and the European Commission as both these
institutions had likewise rejected to assess the case on its merits in the
past.
Sports Law Related Decisions
Official Documents and Press Releases
CAS
FIFA
IOC
UEFA
WADA
Other
In the news
Doping
Football
- Associated
Press FIFA bans
South Sudanese official for taking soccer money
- BBC Sport Mino Raiola:
Paul Pogba’s agent banned for three months by FIFA
- Andy
Brown Bulgaria
relegates FC Vereya on receipt of UEFA match-fixing information
- David
Conn 2022 World
Cup in Qatar to remain as a 32-team tournament, FIFA announces
- David
Conn Manchester
City accuse UEFA of leaks amid Champions League ban threat
- David
Conn Manchester
City furious after UEFA investigation is sent for final judgment
- David
Conn Premier
League clubs’ record £4.8 billion revenues widens gap to rest of Europe
- David
Conn Premier
League finances: The full club-by-club breakdown and verdict
- David
Conn Promotion and
relegation part of explosive Champions League plans
- Marina
Hyde UEFA’s
‘parking ticket’ fines will not rein in football’s maverick clubs
- Sean
Ingle Manchester
City and PSG should be thrown out of Europe, says La Liga president
- Amy
Lawrence and Sean Ingle Arsenal’s
Henrikh Mkhitaryan to miss Europa League final over safety fears
- Liam
Morgan Sierra Leone
could be welcomed back by FIFA after president and secretary general cleared of
corruption
- Tariq
Panja A trove of
FIFA secrets, locked inside a New Jersey storage locker
- Tariq
Panja Bundesliga’s
chief executive isn’t keen to join Premier League
- Tariq
Panja China’s
soccer push takes a new tack: Naturalizing foreign players
- Tariq
Panja FIFA drops
plan for 48-team World Cup in 2022
- Tariq
Panja For Europe’s
soccer chief, the outrage arrives in waves
- Tariq
Panja In Europe, a
bitter battle between clubs and leagues is taking shape
- Tariq
Panja In soccer’s
biggest elections, accusations are common but challengers are not
- Tariq
Panja Powerful
Sheikh linked to bribe scheme is still a soccer power
- Tariq
Panja Proposal to
restructure Champions League leaves out most of Europe
- Tariq
Panja Sepp Blatter,
who departed FIFA in scandal, wants the watches he left at the office
- Tariq
Panja She has
friends at FIFA. At home, it’s mostly critics.
- Tariq
Panja UEFA
investigators set to seek Manchester City’s ban from Champions League
- Martyn
Ziegler Europa League
final: Azerbaijan, the host country where journalist Rasim Aliyev was killed
for criticising Azerbaijan midfielder Javid Huseynov
Other
Academic Materials
Books
International Sports Law Journal
Other
Blog
Asser International Sports Law Blog
Law in Sport
Other
Upcoming Events
- 30 June
-14 July – CLS Summer
School 2019: Global Law of Sport, Patejdlova Bouda, Giant Mountains, Czech Republic
- 30-31
August – Third EU
Sports Law and Policy Summer School, Edge Hill University, UK
- 12-13
September – Understand
the Rules of the Game 2019: LawInSport Annual Conference, London, UK
- 27-28
September – 8th
International Congress on Football Law, Madrid, Spain
- 13-16
October – Play the Game
2019: Athlete Power on the Rise, Colorado Springs, USA
- 24-25
October – Third Annual
International Sports Law Conference of the International Sports Law Journal, T.M.C. Asser Institute, The Hague, Netherlands
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
For the world of Sport, the elsewhere known “sleepy month” of August
turned out to be the total opposite. Having only just recuperated from this
year’s Tour de France, including a spectacular uphill sprint on bicycle shoes
by later ‘Yellow Jersey’ winner Chris Froome, August brought another feast of
marvellous sport (and subsequent legal drama): The 2016 Olympic Games in Rio de
Janeiro.More...
Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.
Over the past days, we have been flooded by
media reports discussing the “Caster Semenya-case”, reports rapidly relayed in
social networks. Since the debate has a distinct legal component and since
almost every report appears to draw significantly from the legal background, I granted
myself permission – as compensation so to speak - to publish a somewhat more personal,
less legal, post than I usually would.
Let me make one thing clear from the outset
– I am still ‘agnostic’ about the question of how to solve the issues
surrounding the male versus female divide in sports. Each time I have been
asked to write or speak on the subject, I have tried to stick to describing the
legal situation and its implications. I do not have the miracle solution as to
how to handle this infinitely complex issue. And I am not sure anyone can claim
to hold that solution at this point. Like everyone, I am doing my research and
trying to be humble enough to stay within the realm of my competences. More...