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...
On Wednesday 26 May 2021 from 16.00-17.00 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fifth Zoom In webinar on the Court of Arbitration for Sport (CAS) from the perspective of the European Court of Human Rights (ECtHR).
We have the pleasure to be joined by Prof. Helen Keller, former Judge at the ECtHR and a prominent dissenter to the majority’s ruling in the Mutu and Pechstein case.
The ECtHR decision
in the Mutu and Pechstein case rendered on 2 October 2018 is widely
seen as one of the most important European sports law rulings. It was
also the first decision of the Strasbourg court dealing with a case in
which the CAS had issued an award. The applicants, Adrian Mutu and
Claudia Pechstein, were both challenging the compatibility of CAS
proceedings with the procedural rights enshrined in Article 6(1) of the
European Convention on Human Rights (ECHR). The court famously declined
to conclude that the CAS lacked independence or impartiality, but did
find that, insofar as Claudia Pechstein was concerned, she was forced to
undergo CAS arbitration and, therefore, that CAS proceedings had to
fully comply with the procedural rights guaranteed in the ECHR. In
particular, the court held that the refusal by CAS to hold a public
hearing, in spite of Claudia Pechstein’s express request, was contrary
to Article 6(1) ECHR. Beyond this case, as highlighted by the recent
decision of Caster Semenya to submit an application
to the ECtHR, the decision opens the way for a more systematic
intervention of the Strasbourg court in assessing the human rights
compatibility of CAS awards and more broadly of the transnational sports
regulations imposed by international sports governing bodies.
Prof. Helen Keller will discuss with us the
implications of the ECtHR’s Mutu and Pechstein decision and the
potential for future interventions by the court in the realm of the lex sportiva.
The webinar will take the form of an interview followed by a short Q&A open to the digital public.
Please note the discussion will NOT be recorded and posted on our Youtube channel.
Register HERE!
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...
On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar
on the recent developments arising from the decision of the Swiss
Federal Tribunal (SFT) in the case Caster Semenya v. International
Association of Athletics Federations (now World Athletics), delivered on
25 August 2020.
Background
The participation of athletes with
biological sex differences to international competitions is one of the
most controversial issues in transnational sports law. In particular,
since 2019, Caster Semenya, an Olympic champion from South-Africa has
been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development
(DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at
reducing her testosterone levels. In April 2019, the Court of
Arbitration for Sport rejected her challenge against the DSD Regulation
in a lengthy award.
In response, Caster Semenya and the South African Athletics Federation filed
an application to set aside the award before the Swiss Federal Tribunal.
In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).
Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application
at the European Court of Human Rights (ECtHR) against Switzerland on
the basis of this judgment. In this context, we thought it important to
organise a Zoom In webinar around the decision of the SFT and
the pending case before the ECtHR. Indeed, should the ECtHR accept the
case, it will be in a position to provide a definitive assessment of the
human rights compatibility of the DSD Regulation. Moreover, this
decision could have important consequences on the role played by human
rights in the review of the private regulations and decisions of
international sports governing bodies.
Speakers
Participation is free, register HERE.
Editor's note: Björn Hessert is a research assistant at the
University of Zurich and a lawyer admitted to the German bar.
The discussion revolving around the invalidity of
arbitration clauses in organised sport in favour of national and international
sports arbitral tribunals has been at the centre of the discussion in German courtrooms.[1] After the decisions of the
German Federal Tribunal[2] (“BGH”) and the European
Court of Human Rights[3] (“ECtHR”) in the infamous
Pechstein case, this discussion seemed to have finally come to an end. Well…not
according to the District Court (LG) of Frankfurt.[4] On 7 October 2020, the District
Court rendered a press release in which the court confirmed its jurisdiction
due to the invalidity of the arbitration clause contained in the contracts
between two beach volleyball players and the German Volleyball Federation[5] (“DVV”) – but one step at
a time. 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: This report compiles the most relevant legal
news, events and materials on International and European Sports Law based on
the daily coverage provided on our twitter feed @Sportslaw_asser.
The Headlines
Coronavirus Pandemic Takes
Over Sports
Since the last monthly
report, the coronavirus pandemic has completely taken over the headlines and
has had enormous impacts on the sports field. The most significant of these
impacts so far was the rather slow (see here and here) decision by the IOC to move the Tokyo 2020
Olympic Games to 2021 after a widespread push among athlete
stakeholders to do so. Concerns were raised that besides the wellbeing
of the participants, athletes under lockdowns would not have the access to the
training facilities, meaning preparations for the Games would suffer. The IOC has
already started its new planning for Tokyo
2021 and sees this new opportunity to be ‘an Olympic flame’ at the end of a
‘dark tunnel’ for the entire world.
Besides the Olympics, football
has also experienced colossal effects as this crisis landed right as leagues
were approaching the end of their season. In this context, FIFA has released specific guidelines on player
contracts and transfer windows, which has included extending player
contracts to the new postponed end of season dates. It has also organized a
working group on COVID-19, which has already made recommendations to postpone all men and
women’s international matches that were to be played during the June 2020
window. Earlier in March, UEFA had already announced that the EURO 2020 was also postponed by 12
months and has also recently approved guidelines on domestic competitions. These guidelines place
emphasis on ‘sporting merit’ and urge ‘National Associations and Leagues to
explore all possible options to play all top domestic competitions giving
access to UEFA club competitions to their natural conclusion’. Nevertheless,
UEFA also emphasizes that the health of all stakeholders must remain the top
priority.
In the end, numerous sport
federations have also had to amend their calendars due to the pandemic (see UCI and FIBA) and a variety of sport
stakeholders have been confronted with immense financial strain (e.g. football, tennis and cycling). For example, UEFA has
acted preemptively in releasing club benefit payments to try to alleviate the
economic pressure faced by clubs. There have also been efforts to support
athletes directly (e.g. FIG and ITF). All in all, the social
and economic impacts of the coronavirus pandemic on sport have been
unprecedented and will require creative solutions while continuing to place
public health as the top priority.
Platini’s ECtHR Appeal
Falls Flat
There have also been a few
other stories that have (understandably) been overshadowed by the pandemic. One
of these include Michel Platini’s unsuccessful appeal to the ECtHR challenging
his 2015 football ban. The ECtHR’s decision concerned the
admissibility of his appeal and in the end found it to be ‘manifestly
ill-founded’. This is because he failed to raise his procedural rights concerns
under Article 6 (1) ECHR in his proceedings at the Swiss Federal Tribunal. Besides
rejecting his other claims based on Article 7 and 8 ECHR, the ECtHR decision also
touched upon the issue of CAS’ procedural and institutional independence. In
doing so, it referred to its Pechstein decision and once more affirmed
that the CAS is sufficiently independent and impartial (see para 65), further
giving credence to this notion from its case law. However, there are still concerns on this matter as was highlighted in the
Pechstein dissent. Overall, the decision indicates
that the ECtHR is willing to give the CAS the benefit of the doubt so long as
it sufficiently takes into account the ECHR in its awards.
Mark Dry – UKAD Dispute
In February, Mark Dry was suspended by UKAD after a decision of the National Anti-Doping
Panel (NADP) Appeal Tribunal for four years after having given a ‘false
account’ in order to ‘subvert the Doping Control process’. Specifically, Dry
had told anti-doping authorities that he had been out fishing after he had
missed a test at his residence. After further investigation, Dry admitted that
he had forgotten to update his whereabouts while he was actually visiting his
parents in Scotland and in panic, had told anti-doping authorities that he had
been out fishing. Following the decision of the NADP Appeal Tribunal, athlete
stakeholders have argued the four-year ban was disproportionate in this case.
In particular, Global Athlete contended that Whereabouts
Anti-Doping Rule Violations only occur in cases where an athlete misses three
tests or filing failures within a year. Furthermore, even if Dry had ‘tampered
or attempted to tamper’, a four-year sanction is too harsh. Subsequently, UKAD responded
with a statement, arguing that
‘deliberately providing false information’ is ‘a serious breach of the rules’
and that the UKAD NADP Appeal Tribunal ‘operates independently’. In light of
the mounting pressure, Witold Bańka, WADA President, also responded
on Twitter that he is ‘committed to ensuring that athletes’ rights are upheld under the World
Anti-Doping Code’. 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
The Court of Arbitration for Sport bans 12 Russian
track and field athletes
On 1 February 2019,
the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the
seemingly endless saga concerning the state-sponsored doping programme in
Russia. These first-instance decisions of the CAS involve 12 Russian track and
field athletes who were all found guilty of anti-doping rule violations based on
the evidence underlying the reports published by professor Richard McLaren and
suspended from participating in sports competitions for periods ranging from
two to eight years. Arguably the most prominent name that appears on the list
of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the
2012 Olympic Games in London.
The case was
brought by the International Association of Athletics Federation (IAAF) that
sought to convince the arbitrators that the athletes in question had
participated in and/or benefited from anabolic steroid doping programmes and
benefited from specific protective methods (washout schedules) in the period
between the 2012 Olympic Games in London and the 2013 IAAF World Championships
in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that
remains suspended and thus unable to conduct any disciplinary procedures. The
athletes have had the opportunity to appeal the decisions to the CAS Appeals
Arbitration Division.
Federal Cartel Office in Germany finds Rule 40 of the
Olympic Charter disproportionately restrictive
At the end of
February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with
the German Olympic Sports Confederation (DOSB) and the International Olympic
Committee (IOC) in which these two organisations had agreed to considerably
enhance advertising opportunities for German athletes and their sponsors during
the Olympic Games. The respective agreement is a direct consequence of the
Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant
position on the market for organising and marketing the Olympic Games by
demanding that the athletes refrain from promoting their own sponsors while the
Games are ongoing, as well as shortly before and after the Games. This
restriction stems from Rule 40(3) of the Olympic Charter under which no
competitor who participates in the Games may allow his person, name, picture or
sports performances to be used for advertising purposes, unless the IOC
Executive Board allows him/her to do so.
As part of
fulfilling its obligations under the commitment agreement, the DOSB has relaxed
its guidelines on promotional activities of German athletes during the Olympic
Games. For its part, the IOC has declared that these new guidelines would take
precedence over Rule 40(3) of the Olympic Charter. However, it still remains to
be seen whether in response to the conclusions of the German competition
authority the IOC will finally change the contentious rule.
The Grand Chamber of the European Court of Human Rights
refuses to pronounce itself on Claudia Pechstein’s case
Claudia Pechstein’s
challenge against the CAS brought before the European Court of Human Rights
(ECtHR) has not yielded the desired result for the German athlete. On 5
February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This
means that the judgment handed down by the 3rd Chamber of the ECtHR
on 2 October 2018, in which the ECtHR confirmed that except for the lack of
publicity of oral hearings the procedures of the CAS are compatible with the
right to a fair trial under Article 6(1) of the European Convention on Human
Rights, has now become final and binding. However, the protracted legal battle
between the five-time Olympic champion in speed skating and the CAS is not over
yet since there is one more challenge against the CAS and its independence
pending before the German Constitutional Court. More...
My favourite speed skater (Full
disclosure: I have a thing for speed skaters bothering the ISU), Claudia
Pechstein, is back in the news! And not from the place I expected. While
all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG
or German Constitutional Court), I should have looked to the European Court of
Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending
for a long time (since 2010) and I did not anticipate
that the ECtHR would render its decision before the BVerfG. The decision released last
week (only available in French at this stage) looked at first like a renewed
vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling
in the Pechstein case), and is being presented
like that by the CAS, but after careful reading of the judgment I believe this is rather
a pyrrhic victory for the status quo
at the CAS. As I will show, this ruling puts to rest an important debate
surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its
much-used appeal format in disciplinary cases) forced arbitration. Furthermore,
stemming from this important acknowledgment is the recognition that CAS proceedings
must comply with Article 6 § 1 of the European Convention of Human
Rights (ECHR), in particular hearings must in principle be held in public and
decisions freely available to all. Finally, I will criticise the Court’s
finding that CAS complies with the requirements of independence and
impartiality imposed by Article 6 § 1 ECHR. I will not rehash the well-known facts of both cases, in order to
focus on the core findings of the decision. 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
Anti-doping whereabouts requirements declared
compatible with the athletes' right to privacy and family life
On 18 January 2018,
the European Court of Human Rights rendered a judgment with important consequences for the world of sport in
general and the anti-doping regime in particular. The Strasbourg-based court
was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite
athletes provide their National Anti-Doping Organisation or International
Federation with regular information about their location, including identifying
for each day one specific 60-minute time slot where the athlete will be
available for testing at a pre-determined location – is compatible with the
athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2
Protocol No. 4 of the Convention. The case was brought by the French cyclist
Jeannie Longo and five French athlete unions that had filed their application
on behalf of 99 professional handball, football, rugby, and basketball players.
While acknowledging
that the whereabouts requirements clash with the athletes' right to private and
family life, the judges took the view that such a restriction is necessary in
order to protect the health of athletes and ensure a level playing field in
sports competitions. They held that ''the
reduction or removal of the relevant obligations would lead to an increase in
the dangers of doping for the health of sports professionals and of all those
who practise sports, and would be at odds with the European and international
consensus on the need for unannounced testing as part of doping control''. Accordingly,
the judges found no violation of Article 8 of the Convention and, in a similar
vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable
to the case.
Football stakeholders preparing to crack down on
agents' excessive fees
It has been a
record-breaking January transfer window with Premier League clubs having spent
an eye-watering £430 million on signing new acquisitions. These spiralling
transfer fees enable football agents, nowadays also called intermediaries, to
charge impressive sums for their services. However, this might soon no longer
be the case as the main stakeholders in European football are preparing to take
action. UEFA, FIFPro, the European Club Association and the European
Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the
activities of intermediaries/agents. They recognise in broad terms that a more
effective regulatory framework is needed and call among other things for a
reasonable and proportionate cap on fees for intermediaries/agents, enhanced
transparency and accountability, or stronger provisions to protect minors.
The CAS award in Joseph Odartei Lamptey v. FIFA
On 15 January 2018,
FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of
Arbitration for Sport (CAS) in the dispute between the
Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with
FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision
of the FIFA Appeal Committee which (i) found him to have violated Article 69(1)
of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup
qualifying match between South Africa and Senegal that took place on 12
November 2016; (ii) as a consequence, banned him for life from taking part in
any football-related activity; and (iii) ordered the match in question to be
replayed. In reaching its conclusion, the CAS relied heavily on multiple
reports of irregular betting activities that significantly deviated from usual
market developments. More...