Last week, the French newspaper Les Echos broke the story that UEFA (or better said its subsidiary) will be exempted from paying taxes in France on revenues derived from Euro 2016. At a time when International Sporting Federations, most notably FIFA, are facing heavy criticisms for their bidding procedures and the special treatment enjoyed by their officials, this tax exemption was not likely to go unnoticed. The French minister for sport, confronted with an angry public opinion, responded by stating that tax exemptions are common practice regarding international sporting events. The former French government agreed to this exemption. In fact, he stressed that without it “France would never have hosted the competition and the Euro 2016 would have gone elsewhere”.

This is not the first time that UEFA is exempted from paying taxes in a host country. For example, for the Euro 2012, UEFA was not subject to direct taxation in Poland.[1] Similar conditions were also part of the application procedures for Euro 2004 and Euro 2008, but is up to the host country to decide how it fulfils the tax exemption requirement of UEFA.

On 12 November 2014 the French council of ministers approved a draft legislation that would provide a fiscally advantageous solution for organisers of international sporting events. The law still needs to be approved by the parliament where it is facing strong political opposition. The organisers of the 2015 European basketball Championships, the 2018 Ryder Cup (golf), and of the football Euro 2016 would be fully exempted from paying direct taxes. However, it is unlikely that the French organisers of the yearly held Tour de France (cycling) and Roland Garros (tennis) will enjoy the same privilege. Even though the legislation is not specific to the Euro 2016, many critics hold that the main reason for introducing this legislation was to satisfy UEFA’s demands.

Regarding the Euro 2016, a special joint-stock company has been created called Euro 2016 SAS. 95% of the shares of this company are owned by UEFA, the remaining 5% by the French Football Federation (FFF). Euro 2016 SAS is responsible for organising the competition itself, related events, and the promotion of the events.[2] The board includes UEFA officials, FFF officials, and French government officials. According to the French minister, Euro 2016 SAS will be exempted from direct and related taxes (corporate tax, income tax, payroll tax, etc.). VAT, however, must still be paid. Allowing Euro 2016 SAS to be exempted from paying direct taxes comes at a time when most EU Member States, including France, are forced to introduce austerity measures. Interestingly, it also comes at a time when the European Commission is becoming increasingly active in dealing with matters related to State aid and taxation. In February 2014, former taxation and customs union Commissioner, Algirdas Šemeta, stated that competition policy in general and State aid law in particular could “greatly reinforce our tax policy work.” He also said that pursuing cases under competition rules could make a real difference as they can be enforced directly on the basis of the EU Treaty. Since this statement, the Commission has opened numerous investigations into alleged State aid received through tax schemes.[3] These cases include alleged aid provided by Ireland to Apple, aid provided by the Netherlands to Starbucks and aid provided by Luxembourg to Amazon. Last week’s LuxLeaks scandal, concerning specific tax deals offered to multinationals by the Luxembourg State, has put State aid and tax policy high on the political agenda. Our analysis is embedded into this broader context, which is decisive in understanding the potential readiness of the Commission to tackle selective fiscal State aid measures. In the following paragraphs we will engage in a substantial analysis of a hypothetical State aid investigation by the EU Commission into the suggested tax exemption offered to UEFA by the French State.

In order for a measure to be considered unlawful State aid it has to fulfil the criteria stipulated in Article 107 (1) TFEU.[4] However, with respect to tax measures, the key question will generally be whether the tax measure is selective.[5] In this regard, when considering whether a measure is selective, and consequently constitutes State aid, the effects on the market are taken into account and not the causes or aim of that measure.[6]

According to settled case-law, the material selectivity of tax measures should normally be assessed by following a three-step analysis.[7] Firstly, the system of reference has to be identified. The system of reference constitutes the framework against which the selectivity of a measure is assessed. It is a consistent set of rules generally applicable to all undertakings falling within its scope as defined by its guiding principle.[8] Secondly, it should be determined whether the given measure constitutes a derogation from the system of reference insofar as it differentiates between economic operators who, in light of the objective intrinsic to that system, are in a comparable factual and legal situation. In the case at hand one can think of other sporting or cultural events held in France. If the measure in question indeed derogates, it still needs to be verified in the last step of the test whether the derogatory measure is justified by the nature or the general scheme of the system.[9] If a prima facie selective measure is justified by the nature or the general scheme of the system, it will not be considered selective and thus fall outside the scope of Article 107(1) TFEU.[10]  

1. System of reference

The French corporate tax (impôt sur les sociétiés) is a standard tax with a rate of approximately 33% that applies to all resident companies in France and that affects all profits made in France by the resident companies. The guiding principle of the corporate tax system would consist in levying taxes on all undertakings generating profit in France.  

2. Is the measure a derogation from the system of reference?

In principle, all undertakings based in France that make a profit are liable to pay the French corporate tax. Similarly, workers and employers based in France are liable to pay the French payroll tax. The sole fact that a new legislation would allow undertakings such as Euro 2016 SAS to be exempted from paying corporate tax and payroll tax derogates from the abovementioned system of reference. Even if one were to assume that international sporting events are subject to a specific system of reference, exonerating their organisers from all direct taxes, this would still be at odds with the fact that undertakings such as Amaury Sport Organisation (the French organiser of the Tour de France) would not be exempted from paying taxes.  In short, at this stage, the measure seems to be prima facie selective.  

3. Is the measure justifiable by the nature or the general scheme of the reference system?

 A prima facie selective aid measure can still be found justified in light of the logic of the system of reference.[11] It has to be borne in mind that a Member State is free to shape the fundamental aspects of its tax system by determining the taxable situations, the tax rate and tax base. Art. 107 (1) TFEU does not prevent the Member State from introducing, reducing or abolishing a tax in order to further its economic aims.[12] It is, however, for the Member State, which has introduced a prima facie selective measure, to show that it is actually justified by the nature and general scheme of the system in question.[13]

It is likely that the French authorities will argue that the measure was introduced to facilitate the organisation of international sporting events to be held on French territory. Organisations responsible for the choice of the host of an international sporting event, such as UEFA or the IOC, need incentives to select France as a host nation. Yet it is doubtful that this could constitute an acceptable justification for the whole scheme. It would imply accepting targeted fiscal dumping as a viable strategy to raise competitiveness, opening the door to a ‘beggar thy neighbour’ policy. Moreover, this tax policy is not aimed at targeting all sports events, i.e. to encourage the practice of sport or any other objective of general interest. Therefore, the Commission is unlikely to accept that it fits into the nature and general scheme of the reference system.

Nonetheless, the French government still believes that the measure is justifiable for a number of reasons. The former French minister for sport, Jean-François Lamour, admitted that hosting mega sporting events always cost more than they generate, and that those who say the opposite are mistaken. However, he also stated that hosting Euro 2016 would serve as an “economic accelerator that can boost the French economy.”[14] “This tax exemption may shock”, admits another former minister for sport, David Douillet, “but it should be considered as an investment, since nearly 3 million visitors are to be expected”. Moreover, “hosting the tournament creates about 20.000 jobs in the construction sector alone. The measure will allow France to host major international tournaments and ensures that they are not organised only in countries that have the means to afford them. In the case of Euro 2016, UEFA will donate €20 million to the host cities, pay €23 million rental money for stadiums and will participate for an amount of €20 million in shares of the French Football Federation regarding amateur football”[15], says the French minister for sport Patrick Kanner. Lastly, as stated in the introduction, Mr. Kanner also held that “France would never have hosted the competition and the Euro 2016 would have gone elsewhere”, had it not agreed to the conditions set by UEFA. Justifications, such as the ones listed here, may be compatible with EU law if it facilitates the development of certain economic activities where such aid does not adversely affect trading conditions to an extent contrary to common interest. Furthermore, the measures must have a clear objective of common interest in order for them to be justified.

According to the French newspaper Le Monde, France has already invested nearly €1.6 billion in the construction and renovation of stadiums and has spent €400 million in access and transport infrastructures for Euro 2016.[16] In Commission Decision SA.35501 Financement de la construction et de la rénovation des stades pour l’Euro 2016, the Commission assessed the public money spent on infrastructure and declared the spending compatible with EU law under Article 107 (3)c) TFEU.[17] The Commission took into account Article 165 TFEU and concluded that the public spending was aimed at a well-defined objective of common interest. It also accepted that there was a public need for the modernisation and enlargement of the stadiums, and that this would not occur without State intervention.

It is important to note, however, that the case at hand describes a different State intervention, namely a specific tax exemption for Euro 2016 SAS. Can arguments raised to justify public spending on infrastructure (i.e. job creation, promotion of France, market failure, cultural, and recreational considerations, etc.) be used analogically to justify a tax exemption? Indeed, there is a direct link between the State’s decision to spend public money in constructing infrastructure and the creation of 20.000 jobs in the construction sector, but not between the legislation allowing tax exemptions and the same job creation. The foregone tax money is not going to be directly re-invested in France, not even in the EU, but is ultimately going to go to a Swiss association: UEFA. The link between the need for the tax exemption and the benefits derived from the EURO2016 can only be made relying on the need to bow to UEFA’s illegitimate blackmail: ‘you’ll get the EURO (and the jobs and exposure hereto tied) only against a fiscal gift’. It is therefore unlikely that the measure at hand fulfils an objective of common interest and would be compatible with Article 107 (3)c) TFEU. 

Usually a negative state aid decision is seen as a backlash for a Member State. However, in UEFA’s tax exemption case, it might be a benediction. It would have positive effects not only for France, but also for all EU Member States, putting a definitive end to UEFA’s blackmailing. A clear precedent would be set and all the organisers of international sporting events taking place in the EU, whether FIFA World Cups, Olympic Games or else, would finally have to comply with tax laws just like anyone else.

[1] Karolina Tetlak and Dick Molenaar, “Tax Exemptions for Euro 2012 in Poland and Ukraine”, European Taxation, June 2012, page 328

[2] The French government and local authorities, on the other hand, are to provide the sites, infrastructure, public services and transportation. They are also responsible for public safety, and for promoting the country and host cities

[3] Timothy Lyons, “The modernisation of EU state aid law and taxation”, British Tax Review, 2014, 2, pages 113-114

[4] (1) The measure has to be selective; (2) granted through State resources; (3) it has to confer an economic advantage upon the recipient; and; (4) it must distort or threaten to distort competition and must have the potential to affect trade between Member States.

[5]  OJ C 384 of 10 December 1998, Commission Notice on the Application of the State Aid Rules to Measures relating to Direct Business Taxation, para. 3

[6] Case C-279/08 P, para. 51; Commission Decision SA.34914, para. 29

[7] See e.g. Joined Cases C-78/08 to C-80/08, Paint Graphos and others [2011], para. 49; Commission Decision SA.34914 - Alleged aid granted to offshore companies – Gibraltar Income Tax Act 2010, para. 28

[8] Commission Decision SA.34914, para. 31

[9] See e.g. Case C-279/08 P, Commission v Netherlands (NOx) [2011], para.62

[10] Joined Cases C-106/09 P and C-107/09 P, Commission and Spain v Government of Gibraltar and United Kingdom [2011], para. 36

[11] Commission Decision SA.29769, State aid to certain Spanish football clubs, para. 15

[12] Conor Quigley, “The notion of State aid in the EEC” [1988] European Law Review, pages 242 and 245

[13] Case T-211/05, Italy v Commisison, para.125

[14] Euro 2016: pourquoi offrir un cadeau fiscal à l’UEFA? Le Monde, 5 November 2014

[15] La France n’aurait pas eu l’Euro 2016 si elle n’avait pas défiscalisé l’UEFA, Le Monde, 5 November 2014

[16] Ibid

[17] Article 107 (3)c):Aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest may be considered to be compatible with the internal market.

Women In Sports Law (WISLaw) is an international, non-profit association based in Switzerland and aimed at promoting women in the sports law sector, through scientific and networking events, annual meetings and annual reports. WISLaw’s objectives are to raise awareness of the presence, role and contribution of women in the sports law sector, enhance their cooperation, and empower its global membership through various initiatives.

This year, WISLaw has partnered with the Asser International Sports Law Blog to organise a special blog symposium featuring WISLaw members. The  symposium will entail both the publication of a series of blog posts authored by WISLaw members, and a virtual webinar (accessible at https://lnkd.in/dgWsy6q with the Passcode 211433) to promote discussion on the selected topics. Article contributions were invited on the topic of legal issues surrounding the Tokyo 2020 Olympics. In the midst of a pandemic and the rise of social justice movements around the world, the Games and their organisation gave rise to a number of interesting legal issues and challenges, which will be explored through a variety of lenses. 

We hope that you enjoy and participate in the discussion.

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.”

Men vs. Women 

World records prove that men run faster and throw further than women. As explained in the CAS Decision, the IAAF modified the DSD Regulations to exclude XX athletes from their scope. By doing this, it was able to frame the DSD Regulations as mitigating any advantage held by ‘biologically male’ athletes in international events run between 400m and one mile in its female category.

Caster Semenya fits the IAAF definition as ‘biologically male’, as she has one of the five DSDs outlined in the DSD Regulations, and competes in the Restricted Events. Semenya’s status as a 46 XY DSD athlete was confirmed by the Swiss Federal Supreme Court on 29 July 2019, when it revoked a supra-provisional suspension of the application of the DSD Regulations to Semenya. ‘Mokgadi Caster Semenya is an “athlete concerned” within the meaning of Article 2.2 of the DSD Regulations’, reads its 29 July interlocutory order (available here in French).

The Semenya case isn’t exclusively about whether men should be able to line up against women in female events – although the debate has sometimes been framed that way. Caster Semenya is a woman, who has been outed as having a DSD by World Athletics’ relentless case against her, which began when she was 18 (she is now 29). She is a 46 XY karyotype woman who has been very successfully competing (and this is not insignificant) against 46 XX karyotype women.

The Semenya case is firstly about whether World Athletics has conclusively proven that women who are 46 XY DSD karyotype hold a significant advantage in the events the rules cover. Secondly, it is also about whether it has proven that such an advantage is so great that it renders competition between female and DSD athletes in the covered events meaningless.

Such an argument should always be decided scientifically. The SFT Decision doesn’t do that. There were serious concerns about the scientific evidence used to support the DSD Regulations both before, during, and after the CAS Decision. Although we have been through some of these concerns before, they are worth restating, as they have yet to be addressed.

There are also concerns about the way in which sport’s rules and regulations have been moulded and changed in order to accommodate the DSD Regulations. They have also not been addressed. But, firstly, it is important to explain what the DSD Rules seek to regulate and why.

The DSD Rules

The DSD Rules, as they have been called since November 2019 (PDF below), cover athletes with one of five listed DSDs competing in international events run between 400m and one mile in World Athletics’ female category, if their endogenous (natural) testosterone levels are above 5nmol/L and have an ‘androgenising effect’ (i.e. if that testosterone is taken up by their androgen receptors and boosts their physiology). Athletes who meet these conditions must use hormonal contraceptives to reduce their testosterone levels to below 5 nmol/L for six months prior to competing, and must maintain testosterone levels at below 5 nmol/L in order to continue competing.

Testosterone is a natural, endogenous (internally produced) steroidal hormone. In the XY karyotype, it is understood that testosterone is the single primary hormone driving the endocrine system, a chemical messaging system that regulates the physiology. In the XX karyotype, it is understood that two primary hormones – oestrogen and progesterone – perform the same function, along with testosterone in much smaller amounts. 

The logic behind the DSD Rules – explained during Semenya’s challenge to them – is that DSD athletes develop an unfair advantage over XX karyotype women due to the continued action of ‘elevated’ testosterone on their XY karyotype physiology from puberty onwards. I have termed this a ‘legacy advantage’, since not every DSD athlete will automatically become an elite runner between 800m and one mile in World Athletics’ female category. Correct diet, dedication, and training over time is also required.  

The DSD Rules seek to reconcile this ‘legacy advantage’ by requiring medical intervention in the present. It could be argued that World Athletics is medically handicapping DSD athletes in the present for an advantage they have strived to develop over time. But as explained, the SFT was not required to consider that conundrum.

‘Affected athletes can either (a) take a daily oral contraceptive pill; or (b) take a monthly injection of a GnrH agonist; or (c) have their testes surgically removed (a ‘gonadectomy’)’, reads Briefing Notes on the Rules published by World Athletics. ‘It is their choice whether or not to have any treatment, and (if so) which treatment to have. In particular, the IAAF does not insist on surgery. The effects of the other two treatments are reversible if and when the athlete decides to stop treatment. Importantly, lowering testosterone in one of these ways is the recognised ‘gender-affirming’ standard of care for any individual (athlete or not) who is 46 XY but has a female gender identity.’

As explained above, the SFT couldn’t make any determination about whether it was ethical to require a 46 XY DSD athlete who is not unwell to take a contraceptive pill designed for 46 XX karyotype females. The CAS did recognise this issue, and found that there were serious side effects on 46 XY DSD individuals who used contraceptive pills designed for XX females to lower their endogenous (internally produced) testosterone to below 10 nmol/L (the DSD Rules set an upper limit of 5 nmol/L).

‘Ms. Semenya described the negative effects that the testosterone-suppressing medication had on her mental and physical health’, reads para.78 of the CAS Decision. ‘Her symptoms included becoming hot and sweating profusely each night and experiencing significant weight gain. She also felt sick constantly, suffered from regular fevers and had constant internal abdominal pain. These symptoms also had an “enormous” effect on her mental state, impeding her mental sharpness and undermining her self-confidence.’

In the XY karyotype, testosterone is the only hormone driving the endocrine system that regulates an individual’s physiology. Therefore, it is understood that reducing it is likely to make people unwell. As the CAS and SFT decisions recognise, XY karyotype individuals typically have circulating testosterone between 7.7 nmol/L to 29.4 nmol/L. 

Of course, reducing this to 5 mol/L will make an XY karyotype athlete slower. This is because the only natural hormone driving the XY karyotype endocrine system, which supports their physiology, has been seriously curtailed. The same effect cannot be replicated in the XX karyotype, since three hormones drive the endocrine system and a much lower baseline level of testosterone (0.06 nmol/L to1.68 nmol/L) exists in the first place. 

This is why testosterone deficiency is a recognised as a medical condition that can make XY karyotype people unwell. DSD athletes are XY karyotype, as the IAAF made clear during its arguments against Semenya’s appeal at the CAS. Other XY karyotype athletes, such as Kristen Worley and Sloan Teeple, have also been made unwell due to sport’s rules on testosterone, as have certain DSD athletes who underwent a horrific experience ahead of the London 2012 Olympics. Shockingly, the IAAF used the experience of these medically damaged athletes as evidential support that the DSD Regulations are effective in making 46 XY DSD athletes slower!

Unlike XY karyotype individuals who are transitioning to become XY females, 46 XY DSD athletes usually do not wish to change their physiology through hormonal modification. Their testosterone levels are not ‘elevated’, to borrow World Athletics’ description, but are normal for their karyotype. World Athletics requires them to reduce the primary stimulus for their endocrine system to levels consistent with the XX karyotype in order to compete in events run between 400m and one mile in its female category. 

World Athletics requires 46 XY DSD athletes to undergo potentially damaging hormonal treatment to compete in its female category. Arguably, it requires athletes to ‘feminise’ themselves.

As explained above, this is likely to make 46 XY karyotype athletes unwell, although the SFT didn’t have to examine whether the CAS had assessed this danger sufficiently. Nowhere in the DSD Regulations, or in the Explanatory Notes, is there any mention of measures taken to monitor an athlete’s health after her natural testosterone levels are reduced to below 5 nmol/L.

Show me the science

As detailed in this article, there were two major pieces of scientific evidence used to support the DSD Regulations. The first is 2017’s Paper One, entitled ‘Serum androgen levels and their relation to performance in track and field: mass spectrometry results from 2127 observations in male and female athletes’. Paper Two, published in 2018, is ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’.

Paper One has a number of significant issues, discussed in this article under ‘Scientific evidence on performance advantage’. In short, the Paper found a correlation between XX karyotype females with elevated free testosterone and performance at the Daegu 2011 and Moscow 2013 IAAF World Championships, events which were marred by doping. Among the 1,332 female observations in the study, just nine were 46 XY DSD.

Paper Two also has a number of significant issues, detailed under ‘The 2018 Study’ in this article. In short, evidence for increases in muscle mass and strength appear to come from a 2014 Study performed on 62 XX karyotype post-menopausal women (mean age, 53) who had undergone a hysterectomy; it references several other studies in order to support the proposition that DSD athletes benefit from increases in circulating testosterone that increases circulating haemoglobin, which in turn translates to an increase in oxygen transfer; and compares endogenous testosterone levels with increases in muscle mass and strength.

One of the studies it relies on is a 2017 Study examining women with Congenital Adrenal Hyperplasia (CAH), a condition in which the adrenal gland can produce more testosterone. The Study found that in women with CAH, erythropoiesis may be driven by androgens. The proposition is that as DSD athletes have higher levels of testosterone (an androgen), they benefit from increased erythropoiesis (production of oxygen-carrying red blood cells). 

On 9 January 2019, shortly before the CAS hearing on 26 February, the IAAF removed CAH and a CAH variant from the scope of the Regulations. It did so because, in the IAAF’s words, ‘individuals with these DSDs only have high testosterone levels if their adrenal conditions are uncontrolled, in which case they would suffer side-effects that would make elite sports performance impossible’. 

Yet as explained above, a study examining XX karyotype women with CAH had been used as part of the IAAF’s evidence base in support of the Regulations. It would appear that by carving XX karyotype women and CAH out from the scope of the Regulations, the IAAF negated part of its own evidence base. 

There is more information about scientific inaccuracies in the evidence used to support the DSD Rules here; here; and here. In addition, as previously mentioned, World Athletics used data from athletes medically damaged by its Hyperandrogenism Regulations – the forerunner to the DSD Rules – to prop up the DSD Rules. 

The issue is not that World Athletics hasn’t proven that 46 XY karyotype athletes can run faster or throw further than 46 XX karyotype athletes. Anybody with access to Wikipedia can do that. It is whether World Athletics has proven that by virtue of the effects of testosterone on the 46 XY DSD physiology from puberty onwards, 46 XY DSD athletes have been able to develop an advantage that is so significant that it should be considered unfair in the specific international female events that World Athletics targets. It is here that scientists argue World Athletics falls short (see the Twitter threads here and here).

Moving the goalposts

As already mentioned, today’s DSD Rules are not the same as the DSD Regulations that Semenya challenged. The IAAF amended the DSD Regulations both before and after the CAS heard Semenya’s case against them. The result was that shortly before the CAS hearing, the DSD Regulations applied to five disciplines rather than the seven referred to in the CAS judgment.

World Athletics even sent a lawyer to Play The Game 2019. The lawyer didn’t participate in a debate about the science underpinning the DSD Regulations, but distributed a pre-prepared Paper attacking the presenters and their arguments. Anyone interested in whether World Athletics succeeded should read this article.

The World Athletics Paper references ‘recent research’ involving the administration of 10mg of testosterone cream daily to athletes. The research found that athletes who administered the cream performed better. Of course they did. This is doping.

A person doped with testosterone is getting something extra. Testosterone doesn’t discriminate. If you administer testosterone, an athlete’s physiology has something that it didn’t have before. Everyone knows this. It is the reason why the application of exogenous (external) testosterone is prohibited in sport. 

The same is not true for 46 XY DSD athletes. Their testosterone levels are endogenous (internal), and are their hormonal normal. 

The forerunner to the DSD Rules were the Hyperandrogenism Regulations. The CAS allowed the IAAF to terminate Dutee Chand’s case against them by promulgating the DSD Regulations. That the CAS would allow a serious grievance to be terminated by simply promulgating new Regulations should ring alarm bells for anyone interested in jurisprudence. 

The CAS Decision also raised questions about whether athletes had given their consent for samples collected for anti-doping purposes to be used for gender verification purposes. As previously reported, the 2021 World Anti-Doping Code has been amended to allow anti-doping samples to be used in this way. Up until 2019, the World Anti-Doping Agency’s International Standards (ISL) prohibited such use.

The Hyperandrogenism were promulgated in May 2011. Article 6.3 of the World Anti-Doping Agency’s (WADA) 2012 International Standard for Laboratories (ISL) mandates that written consent is required from any athlete for a sample collected for anti-doping purposes to be used in any other way. ‘No Sample may be used for any purpose other than as described in Article 6.2 without the Athlete’s written consent’, it reads. ‘Samples used for purposes other than Article 6.2 shall have any means of identification removed such that they cannot be traced back to a particular Athlete’.

Such a prohibition was repeated in the 2015 ISL, but is not present in the 2019 ISL. However, Annex 2.1 of the 2019 ISL mandates: ‘The Laboratories and WADA-Approved Laboratories for the ABP shall follow the Helsinki Accords and any applicable national standards as they relate to the involvement of human subjects in research. Voluntary informed consent shall also be obtained from human subjects in any drug administration studies for the purpose of development of a Reference Collection or proficiency testing materials.’

‘In medical research involving human subjects capable of giving informed consent, each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail, post-study provisions and any other relevant aspects of the study’, reads Article 26 of the World Medical Association’s (WMA) Helsinki Declaration. ‘The potential subject must be informed of the right to refuse to participate in the study or to withdraw consent to participate at any time without reprisal. Special attention should be given to the specific information needs of individual potential subjects as well as to the methods used to deliver the information.

‘After ensuring that the potential subject has understood the information, the physician or another appropriately qualified individual must then seek the potential subject’s freely-given informed consent, preferably in writing. If the consent cannot be expressed in writing, the non-written consent must be formally documented and witnessed.’

The IAAF’s Competition Medical Guidelines (click here to download) also emphasise that they comply with the Helsinki Declaration. The CAS Decision in Semenya’s case highlights serious questions as to whether athletes provided consent for their anti-doping samples to be used in Paper One. ‘The IAAF relies on the initial consent provided for doping control purposes’, reads the Decision. ‘ASA repeatedly asked the IAAF to disclose copies of the signed consent forms provided by the athletes whose samples and data form the basis of the analysis in BG17 [Paper One]. The IAAF has declined to do so. The Panel considers that it can therefore be inferred that no such forms exist, or that if they do exist they do not assist the IAAF on this issue.’

It would therefore appear that World Athletics relied on evidence obtained from athletes in breach of WADA’s ISL, its own Competition Medical Guidelines and the WMA’s Helsinki Declaration in order to support the DSD Rules. This would also appear to invalidate part of its evidence base, but the CAS Panel didn’t consider this to be important, and the SFT didn’t assess the reliability of the evidence in support of the Rules.

The United Nations, Human Rights Council, and the WMA itself have already expressed concern about this. In September 2018, the Human Rights Special Procedures body of the United Nations wrote to Sebastian Coe, President of World Athletics. Three UN Special Rapporteurs for physical and mental health; torture; and discrimination against women highlight ‘serious concerns’ that the DSD Regulations:

• Contravene human rights standards and norms;
• do not present evidence justifying that they pursue a legitimate aim;
• are not reasonable and objective;
• do not demonstrate proportionality between their aim and effects.

World Athletics’ response was to accuse the UN of not understanding its Rules. ‘It is clear that the author is not across the details of the IAAF regulations nor the facts presented recently at the Court of Arbitration for Sport’, wrote World Athletics in a statement to the BBC, after the UN Human Rights Council reiterated its concerns in March last year. ‘There are many generic and inaccurate statements contained in the motion presented to the UN Human Rights Council so it is difficult to work out where to start’.

In July this year, the Human Rights Council urged UN Member States to prohibit the enforcement of the DSD Rules. Its Report was unequivocal that the DSD Rules represent an infringement of the right for athletes with a DSD to compete. ‘The implementation of female eligibility regulations denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non- discrimination more broadly’, it outlines.

In May last year, the WMA reiterated its advice to physicians not to implement the DSD Rules. “We have strong reservations about the ethical validity of these regulations”, said WMA President Dr. Leonid Eidelman. “They are based on weak evidence from a single study, which is currently being widely debated by the scientific community. They are also contrary to a number of key WMA ethical statements and declarations, and as such we are calling for their immediate withdrawal.”

“Caster’s legal defeat is not a victory for World Athletics, nor does it legitimize the CAS or global sport’s ‘system of justice’”, said Brendan Schwab, Executive Director of the World Players Association (WPA), in a statement. “Despite the World Athletics eligibility regulations being condemned as a violation of the human rights of athletes by authorities as eminent as the United Nations High Commissioner for Human Rights (UNHCHR), Caster’s human rights could not be properly considered at any stage of the process. In the same report the UNHCHR has identified how sport’s justice system systemically denies athletes of their right to an effective remedy where their human rights have been violated.

“World Athletics flagrantly maintains that, as a private body, it has no responsibility to respect Caster’s internationally recognised human rights. It argued that her rights are to be primarily determined in accordance with the Constitution of World Athletics and the Olympic Charter of the International Olympic Committee (IOC), neither of which uphold the human rights of athletes.”

Herein lies the problem. Sport’s closed arbitration system allowed World Athletics to avoid all of these serious issues, raised by major international bodies, and to welcome the SFT’s inability to consider them as a victory.

Thin end of the wedge

Nobody is arguing that World Athletics shouldn’t be able to exclude ‘male’ athletes from certain ‘female’ categories. World Athletics clearly thinks is approach to its DSD Rules is in line with this proposition, otherwise it wouldn’t have spent so much time, effort, and money defending it. If ‘male’ athletes were inclined to compete in female sport, they would dominate it (although there is no evidence that anyone who identifies as a ‘man’ has ever sought to compete in ‘female’ sport).

Given what we know about determination to win and doping, it isn’t unreasonable to assume that unscrupulous coaches would seek out DSD athletes in order to win, as Paula Radcliffe highlighted. World Athletics is right to point to the prevalence of DSD athletes in the Restricted Events as evidence that they may hold an advantage over XX karyotype athletes who have not benefitted from testosterone’s action on their physiology from puberty onwards.

But is such an advantage ‘unfair’? World Athletics thinks so. It is ‘category defeating’, to borrow its grandstand term. But it doesn’t appear to have done any other research as to how ‘unfair’ the advantage is compared to other advantages within the Restricted Events. The playing field is never level in any sporting event. Does height or stride length also confer an advantage in the Restricted Events? 

Nobody is saying that World Athletics shouldn’t be free to exclude ‘male’ athletes from its ‘female’ categories. However, the danger is that by pegging rules on who can compete in its female category to natural testosterone levels, World Athletics risks making people ill. World Athletics is effectively saying to a 46 XY DSD athlete: use medication not designed for your physiology to reduce your natural hormonal levels, otherwise you cannot compete internationally in our restricted events as a female.

In addition, some of the Restricted Events appear to be arbitrary, leading to conjecture that the DSD Rules are designed to target Caster Semenya. World Athletics refused to listen to the CAS when it asked it to consider deferring the application of the Rules to the 1,500m and one mile events, due to lack of evidence. But this didn’t trouble the SFT.

‘Although the CAS has expressed concerns about the inclusion of these two test events in the DSD Rules and indicated that the IAAF might consider deferring the application of this rule to such events, it nevertheless considered that the IAAF had provided evidence for all “covered events”, as well as a rational explanation as to how this category was defined’, reads the SFT Decision. ‘In these circumstances, this result cannot be qualified as contrary to public order’.

The problem is that the pegging of eligibility rules in female categories to natural testosterone levels doesn’t end with events run between 400m and one mile, or with the DSD Rules. The CAS Decision permitted World Athletics to add further events to the Rules in the future. ‘The majority of the Panel observes that it may be that, on implementation and with experience, certain factors, supported by evidence, may be shown to affect the overall proportionality of the DSD Regulations, either by indicating that amendments are required in order to ensure that the Regulations are capable of being applied proportionately, or by providing further support for or against the inclusion of particular events within the category of Restricted Events’, read an Executive Summary of its Decision.

Transgender females are currently not permitted to use testosterone at levels above 10 nmol/L if they are to be permitted to compete in female sport. Now that World Athletics has got its DSD Rules over the line, they also face the possibility that permissible limits will be reduced, potentially making them ill.

This is why nothing has changed with the SFT ruling. Realistically, I don’t think that anybody expected Caster Semenya to prove that the CAS Decision violates Swiss public policy.

What the SFT decision has highlighted, for athletes, is that appealing such issues through sport’s closed arbitration system is pointless. The CAS allowed the IAAF to amend the DSD Rules before, during, and after its hearing. It held that the Rules are discriminatory and despite this, the IAAF was able to ignore its warning about the inclusion of the 1,500m and one mile events due to lack of evidence without repercussion. The SFT held that none of this qualifies as a threat to Swiss public policy. Case closed.

Kristen Worley was only successful in her appeal that International Olympic Committee (IOC) policies had infringed her human rights by taking her case outside of sport’s closed arbitration system. Claudia Pechstein was only partially successful by taking her case to the European Court of Human Rights (ECHR), which forced the CAS to open its hearings to the public. This has not gone well so far. 

It would appear that World Athletics doesn’t want to face similar battles to the Semenya case in the future. ‘The decision of the CAS will be final and binding on all parties, and no right of appeal will lie from that decision’, reads Article 5.5 of the DSD Rules. ‘All parties waive irrevocably any right to any form of appeal, review or recourse by or in any court or judicial authority in respect of such decision, insofar as such waiver may be validly made’. Perhaps World Athletics knows that the CAS provides a sensitive ear.

The SFT decision doesn’t bring us any closer to ascertaining whether it is ethical for World Athletics to require 46 XY DSD females to self medicate their natural biology in order to be eligible for certain international female events. Caster Semenya was brought up as a woman, lives as a woman and is legally recognised as a woman, as the DSD Rules require. The action of testosterone on her XY karyotype has provided her with a distinct advantage, but it is an advantage she has had to work on throughout her life, just as other athletes play to their strengths. Is it right to penalise all DSD women for her success?

Editor’s note: Chuck Blazer declined our official interview request but thanks to some trusted sources (the FIFA indictment and Chuck’s testimony) we have reconstructed his likely answers. This is a fictional interview. Any resemblance with real facts is purely coincidental.

Mr Blazer, thank you for agreeing to this interview, especially considering the circumstances. How are you doing?

I am facing ten charges concerning, among others, conspiracy to corrupt and money laundering. But apart from that, I am doing great (laughs)!

It is good to know that you have not lost your spirit. And since you’ve been involved in football, or as you call it soccer, for years could you please first tell us what was your career at FIFA and its affiliates like?

Let me see… Starting from the 1990s I was employed by and associated with FIFA and one of its constituent confederations, namely the Confederation of North, Central American and Caribbean Association Football (CONCACAF). At various times, I also served as a member of several FIFA standing committees, including the marketing and television committee. As CONCACAF’s general secretary, a position I proudly held for 21 years, I was responsible, among many other things, for negotiations concerning media and sponsorship rights. From 1997 to 2013 I also served at FIFA’s executive committee where I participated in the selection process of the host countries for the World Cup tournaments. Those years at the helm of world soccer were truly amazing years of travel and hard work mainly for the good of the beautiful game. I might add that I even managed to document some of my voyages on my blog. I initially called it “Travels with Chuck Blazer” but Vladimir (Putin) convinced me to change the name to “Travels with Chuck Blazer and his Friends”. You should check it out.

Sure, but you ended up facing corruption and tax fraud charges in the US. What happened?

Concerning the charges I am currently facing, I pleaded guilty to participating in a conspiracy to corrupt FIFA and its related constituent organizations through various bribery schemes. In addition, I acknowledged taking part in money laundering process, violation of certain financial reporting laws, and tax evasion. But please keep it quiet. My family was devastated when they heard about this. After all, they know me as a kind-hearted and giving type, especially if you consider that, given my appearance, I’m always Santa Claus when Christmas time is around.

Concretely, around 1992 and together with other representatives of the soccer world, I agreed to accept a bribe in connection with the selection of the host nation of the 1998 World Cup. Together with other FIFA executive committee members I also accepted illegal payments concerning the selection of South Africa as the 2010 World Cup host. Simultaneously, since approximately 1993, still with the same bunch of soccer executives, I accepted bribes connected to the award of broadcasting and other rights to the 1996, 1998, 2000, 2002 and 2003 Gold Cup, a tournament analogue to the Copa América, featuring member associations of CONCACAF.

I know it’s wrong. But at FIFA a lot of people were doing it and it was just a common practice at that time. Money was flowing in my bank accounts and it felt right. We were working so hard to organize those tournaments, you know.

How come the US authorities’ ended up investigating you and FIFA?

I am not completely sure. When I testified back in 2013 the judge indicated that FIFA and its attendant or related constituent organizations were identified as a RICO enterprise, that is, a Racketeering Influenced Corrupt Organization if I remember correctly. I was terrified, it sounded very intimidating at first. Now I guess I got used to the sound of it. I am even thinking about calling my next cat Rico (laughs). I also recall that the Department of Justice’s involvement in the case was due to the fact that we used the US financial system to funnel the money. In hindsight, it was a very bad idea.

Could you give us some more details on how the corruption mechanism actually worked in practice?

In general terms there were media and marketing rights to be sold. Those rights, and often their extensions, were awarded in exchange for bribes, sometimes via intermediaries. The sports marketing companies engaged in the schemes were then able not only to profit from the acquired rights themselves, but also to accept illegal payments for passing on some of those rights to sponsors.

(Long pause) Take for instance Copa Libertadores. The tournament developed and gained popularity which sparked sports marketing companies’ interest in acquiring marketing rights to the competition. Around 2000 an entity affiliated with one of the sports marketing companies was awarded sponsorship rights for the tournaments which took place between 2001 and 2007, with a subsequent renewal of the contract in 2007 and 2012. In the early 2000s Nicolás Leoz, acting as the president of Confederación Sudamericana de Fútbol (CONMEBOL) and a member of its executive committee, sold his support to award the rights to a specific company. What is more, not only did he receive the money, he also gave instructions to forward approximately $2 million to his personal bank accounts, a sum which was owed to CONMEBOL itself based on the awarded sponsorship rights’ contract. The Copa Libertadores was only one of the many affected soccer competitions.

And what were the other tournaments affected?

I am American so please excuse my accent, but besides Copa Libertadores, also Copa América, Copa do Brasil, Gold Cup, and the World Cup qualifiers games. I might also add that corruption affected at least the FIFA 2011 presidential elections, the voting process concerning the hosts of the 1998 and 2010 World Cups, and Brazil’s national team’s sponsorship.

Who would you identify as the main players in the corruption schemes?

Except myself you mean (laughs)? Well, definitely a number of FIFA officials that you hear a lot about in the news lately. I can easily mention a few of my colleagues, like Rafael Esquivel who served as the president of the Venezuelan soccer association and a vice president on the CONMEBOL executive committee. There was also my good friend Eugenio Figueredo, a former president of the Uruguayan soccer association who was a member of FIFA’s executive committee, a vice president at FIFA, a member of various FIFA standing committees, and a vice and then president of CONMEBOL. Surely you know of José Maria Marin and Jeffrey Webb. The former was the president of the Brazilian soccer association, and sat on several FIFA standing committees. The latter was the president of Cayman Islands Football Association and a member of the Caribbean Football Union’s (CFU) executive committee. He was also appointed as the president of CONCACAF and a FIFA vice president. The funny thing is that Webb took these positions in order to clean up after the corruption scandal which led to the resignation of Jack Warner.

Jack Warner, you mean the former president of CONCACAF and the vice president of FIFA?

Correct. But do not forget that he was also the secretary and then a special advisor to the Trinidad and Tobago Football Federation (TTFF), and the president of the CFU. Jack is probably the most corrupt soccer official I ever met.  Personally I did not like him, he just couldn’t get enough. Already in the early 1990s he began exploiting his position for personal gains. In this regard, he did not only treat the assets of the organizations he served as his own, but also actively solicited bribes in connection with for example the 1998 World Cup. Hundreds of thousands of dollars in bribes were also paid to him with regard to the award of commercial rights to several editions of the Gold Cup. Moreover, acting as the president of the CFU and a special advisor to the TTFF he orchestrated the sale of media rights to World Cup qualifying matches which the national members of the CFU decided to sale as a bundle. Following negotiations Traffic, a sports marketing company, acquired the rights to 2002, 2006, 2010, and 2014 World Cup qualifier matches. A substantial part of the value of the contracts concluded by Warner on behalf of the CFU was automatically transferred to accounts under his personal control. He was also involved in a $10 million bribe related to the award of the 2010 World Cup to South Africa. I could go on and on.

You mentioned Traffic. Could you tell us more about it?

Of course. Several of these sports marketing companies were involved, but to my knowledge Traffic was one of the biggest players. This multinational company was based in Brazil and comprised of subsidiaries operating around the globe including the US where it commenced its operations around 1990. The US branch alone was engaged in a number of bribery and fraud schemes in connection with their efforts to obtain various rights from soccer organization and federations in the region. The beneficiaries of these schemes included, among others, Jack Warner, Nicolás Leoz, and Rafael Esquivel. Traffic’s main goal was to expand its operations through developing ties with soccer governing bodies. I remember that in 1991 during Nicolás’ term as CONMEBOL’s president Traffic acquired exclusive commercial rights to three editions of Copa América. Nicolás then threatened to walk away. He claimed that Traffic was about to make a lot of money out of the deal and that it was only fair for him to get his share of the pie. With each of the new editions of the Copa América, Nicolás would demand fresh bribes, a personal business of his which, to my knowledge, went on until 2011. Additional payments were made by Traffic based on their subsequent profits. Esquivel also benefited by requesting bribes in exchange for his ongoing support for Traffic’s position. As I said, bribery at FIFA was often the result of the initiative on the part of its officials. But coming back to Traffic, their involvement is best described in numbers. Out of the twelve bribery schemes I know of, Traffic was involved in nine of them. However, if we disregard the schemes concerning FIFA elections and the voting process for the World Cup hosts the share is nine out of ten. You also need to keep in mind that a former employee of the US branch of Traffic involved in the corruption scheme went on to serve as a general secretary of CONCACAF. On a side note, I think I was a much better general secretary than he ever was. I still receive birthday cards from my former colleagues at CONCACAF.

You stated that several companies were involved. How did they share the rights acquisition between themselves?

I’m not entirely sure about the exact mechanisms involved. What I know, however, is that sometimes conflicts emerged between the different companies seeking to secure contracts for themselves. On other occasions they were able to join forces, for example with the media and marketing rights to Copa América. At first, CONMEBOL entered into a contract with Traffic on the basis of which the latter was awarded the exclusive rights to, among others, the 2015 edition of the tournament, and an option to retain those rights for the next three editions. But in 2010 CONMEBOL signed another agreement, this time with Full Play, on the basis of which Full Play was granted media and marketing rights to several editions of the tournament, including the 2015 edition already sold to Traffic. As you can imagine, Traffic was not happy. They decided to sue CONMEBOL and Full Play. In the end the companies came to an understanding and formed Datisa, a new entity which was to obtain and exploit the commercial rights to the Copa América. In return, Traffic was to shoulder a share of the bribes offered to CONMEBOL officials.

I also recall that there were tensions between Traffic and another company established by a former employee of Traffic who, after bribing Brazilian federation’s officials in order to acquire a contract for the rights to Copa do Brasil, was accused by Traffic’s owner of stealing his business. But they also managed to solve the issue by combining their “efforts” and by sharing the financial burden of the “investments” made to acquire the rights.

And what sums are we talking about?

Not so much, really (laughs). Concerning Datisa the company agreed to pay between $100 and $110 million in bribes to CONMEBOL officials all of whom worked also at FIFA. The FBI told me that they estimated that the “business” generated approximately $150 million in bribes, an amount which may increase if new information come to light. In the end, I did not get so much out of it compared to some of my dear colleagues. Sometimes I think that I should have been more firm during the “negotiations”. For a long time I have been dreaming about having an additional apartment in the Trump Tower. I remember that when I got the first one it almost seemed as it came from some divine intervention.

Wow, that’s a lot. How did they manage to conceal it?

As I already mentioned the “business” was sometimes conducted via intermediaries. Jose Margulies was one of the prominent ones. He was the brother of an old friend of the owner of Traffic, and often used accounts in the names of offshore corporations in order to makes payments on his behalf. In addition, he tried to conceal the bribes by using accounts at Swiss banks, made recourse to currency dealers, destroyed documentation, and discouraged the corrupt soccer officials from using accounts in their own name in order to avoid detection from law enforcement bodies, an advice which was not always taken seriously. People like Nicolás Leoz for example did not hesitate to have sums being paid to their personal bank accounts on the basis of “consulting contracts”. As I already mentioned, Jack (Warner), for his part, concluded a double agreement in the name of the TTFF concerning rights to World Cup qualifier games. He first sold the TTFF’s rights as part of a bundle, and later on sold them again, but this time separately. There was also the famous $10 million paid by South Africa’s authorities to the CFU in order to “support the African diaspora”, a payment which was in fact made in exchange for votes regarding the 2010 World Cup host. This money was diverted back into Jack’s pockets via a number of tricks. Using family members’ accounts was another way of deception. Lately, the business of taking bribes was getting more and more complicated, prompting officials to look for new complex schemes. In fact, the attempts to conceal illegal payments made in connection with the rights to the World Cup 2018 and 2022 qualifiers caused a lot of headache to Jeffrey Webb in his capacity as a high level CFU official. One of the companies with whom Traffic was to make payment to Webb had difficulties finding the right way to discretely transfer the money to him. This led to long negotiations between Webb’s associate and the company’s executives in order to find a clean method to make the outstanding payment.

Thank you so much Mr Blazer for your time and your invaluable insights!

You’re welcome. I am a big fan of the ASSER International Sports Law Blog so anything for you guys.

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.

3.     Overall, in assessing whether the qualification of a human right (e.g. freedom of expression) can be justified, the usual issue for a court is that that human right is competing against or in conflict with another human right or issue of public importance (in the instance of free expression, that competing issue might be one of public order or health, for example). The fundamental issue in the Caster Semenya proceedings seems to be whether the qualification of anti-discrimination principles can be justified, not on grounds such as, in the absence of such regulation, other athletes might be endangered in competing against Caster Semenya; but rather and simply that without intervention, it is unfair, in the sporting sense, on other athletes to compete against Caster Semenya. Is a purely sporting right (a level playing field) sufficient of itself to justify a derogation from a fundamental principle of human rights or is that derogation something that can reasonably be reserved to a sporting body on the grounds of fair competition for all?

4.     In sum, both CAS and now the SFT, have said that World Athletics has justified the deviation from human rights law because (a) it is necessary, as premised on a scientifically measurable, sporting disadvantage and (b) the resulting regulations have been drafted/implemented in a reasonable/proportionate manner.

5.     A key legal issue in the future is how the CAS’s award and the SFT’s judgment can be reconciled with the opinion of the United Nations High Commissioner for Human Rights in a report presented recently to the 44th session of the Human Rights Council (15 June to 3 July 2020) on the “Intersection of race and gender discrimination in sport”. In that report, the UN High Commissioner for Human Rights elaborated on relevant international human rights norms and standards and the corresponding obligations of States and the responsibilities of sporting bodies towards women and girl athletes. In doing so, the report identified possible gaps in the protection of the human rights of women and girls in sports and including the manner in which sport resolves disputes with a significant human rights element to them.

6.     At paragraph 53 of the report, the UN High Commission for Human Rights concluded pertinently:

“In addition, regulations regarding female eligibility to compete in sport raise concerns about the ability of all athletes to enjoy their rights. Private sports bodies and their rules and regulations dominate the current global and corporatized structure of sport governance. Concerns have been raised in this context indicating that women and girl athletes may face serious obstacles to accessing effective remedies and seeking full redress for violations of their human rights. In accordance with their obligations under international human rights law, States should ensure that non-State actors, including sport governing bodies, respect human rights in their own regulatory regimes and are accountable for breaches.”

7.     It is also of note that prior to the SFT judgment and with implied reference to the Semenya award at CAS, the UN High Commissioner for Human Rights noted the following two points (at paragraph 47). First, the process under Swiss law of appealing a CAS award to the SFT includes an appeal premised on public policy ground of prohibition from discriminatory measures -  A. v. Z., FIFA and X., Case No. 4A_304/2013, judgment of 3 March 2014, sect. 5.1. Second, the Commissioner noted that:

“Other national courts may also refuse to recognize and enforce an arbitral award if doing so would be contrary to the public policy of that State, which may include certain fundamental human rights.”

8.     In this, the UN High Commissioner relied on article V (2) (b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Commission did admit however that such a decision by a state (e.g., if South Africa refused to recognised the CAS award in the Semenya case) would be “jurisdictionally limited, as it would not be capable of suspending the regulations of a sport governing body [World Athletics] worldwide.”

9.     With regard to World Athletics’ regulations, World Athletics itself appear to recognise the dynamic, living nature of the research and policy objectives that underpin the regulations. It follows that where new evidence is presented (on, for example, the scientific foundations of the regulations or their manner of implementation or impact on athletes) the necessity, reasonable and proportionality of the regulations can and ought to be reassessed.

10.  Finally, the proceedings as whole might suggest that where an analogous human rights related case arises again (and not just in athletics) an athlete may resile from having it resolved at CAS, arguing, in the language of human rights law, that CAS does not provide an “effective remedy”.  But the focus on CAS is somewhat misplaced. CAS’s jurisdiction is founded in, granted to it by and largely constricted to the interpretation of the regulations of the referring sports body – in this case World Athletics. Although of little consolation to the athlete herself, the key legal lesson from the Caster Semenya proceedings – which appear far from over -  may be that the campaign to embed human rights principles in the regulations of sports bodies must continue apace and where sport bodies agree to comply with such principles, human rights norms should permeate not just their regulatory activities but should also enable athletes to rely on any and all aspects of human rights law up to and including seeking effective remedy at CAS.