Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.
On 25 August 2020, the Swiss Supreme Court
(Swiss Federal Tribunal, SFT) rendered
one of its most eagerly awaited decisions of 2020, in the matter of Caster
Semenya versus World Athletics (formerly and as referenced in the decision:
IAAF) following an award of the Court of Arbitration for Sport (CAS). In short,
the issue at stake before the CAS was the validity of the World
Athletics eligibility rules for Athletes with Differences of Sex Development
(DSD Regulation). After the CAS upheld their validity in an award
of 30 April 2019, Caster Semenya and the South African Athletics Federation
(jointly: the appellants) filed an application to set aside the award before
the Swiss Supreme Court.[1]
The SFT decision, which rejects the application, was made public along with a
press release on 8 September 2020.
There is no doubt that we can expect contrasted
reactions to the decision. Whatever one’s opinion, however, the official
press release in English does not do justice to the 28-page long decision
in French and the judges’ reasoning. The goal of this short article is
therefore primarily to highlight some key extracts of the SFT decision and some
features of the case that will be relevant in its further assessment by
scholars and the media.[2]
It is apparent from the decision that the
SFT was very aware that its decision was going to be scrutinised by an
international audience, part of whom may not be familiar with the mechanics of
the legal regime applicable to setting aside an international arbitration award
in Switzerland.
Thus, the decision includes long
introductory statements regarding the status of the Court of Arbitration for
Sport, and the role of the Swiss Federal Tribunal in reviewing award issued by
panels in international arbitration proceedings. The SFT also referred
extensively throughout its decision to jurisprudence of the European Court of
Human Rights (ECtHR), rendered in cases related to international sport and the
CAS.
1.
Standing to sue before the
SFT & admissibility of the challenge
As a preliminary matter, the SFT considered
the standing to sue of both Caster Semenya and the South African Athletics
Federation. Both were found to have an interest worthy of protection. Caster
Semenya was considered to be particularly affected by the CAS award, since the
DSD Regulation require her to fulfil certain requirements in order to
participate in certain categories of races at international athletics events.
As for the South African Athletics Federation, the SFT considered that as a
member federation of World Athletics, it has a duty to cooperate with the
international sports governing body and to support it in the implementation of
the DSD Regulation, including to alert the medical manager in case it has a suspicion
that an athlete might be falling within the scope of the DSD Regulation, so
that it had an interest worthy of protection separate and distinct from Caster
Semenya’s (para. 4.1.2).
The SFT then examined the clause of waiver
to appeal CAS awards, enshrined in the DSD Regulation. Based on its
jurisprudence originating in the Cañas matter, the SFT confirmed that
an athlete cannot, as a rule, validly waive the right to challenge an award in
sports arbitration matters before the SFT:
“It is all the more imperious that the will
to waive the appeal be not vitiated through any form of constraint, since such
waiver would deprive its author from the possibility to challenge any future
award, even if the award should breach fundamental principles inherent to a
State operating under the rule of law [… ]” (para. 4.2.4).
Interestingly, the SFT found that its jurisprudence,
developed based on the lack of free consent on part of those athletes, can be
equally invoked by a national member federation with respect to arbitration
clauses contained in the rules of its international governing body (para.
4.2.4).
2.
Independence of the CAS
& role of the SFT
Before entering the merits of the case, the
SFT stressed that it was essential to delimit the legal framework of the
dispute, the role of the SFT when reviewing an appeal in international arbitration
matters and the scope of its power of review (para. 5).
Citing its own Latuzina jurisprudence as well as recent
ECtHR decisions in Mutu & Pechstein v. Switzerland,
and Platini v. Switzerland, the SFT
concluded, as to the status of the CAS:
“One must keep in mind that the appellants
have been able to bring their dispute against IAAF before CAS, which is not
only an independent and impartial court, with full power of review in fact and
in law, but also a specialised jurisdiction” (para. 5.1.3).
The SFT then summarised its role and power
of review when dealing with an international arbitration award. In particular,
the SFT cannot – save in exceptional circumstances – consider issues of fact,
and is bound by the facts as set out in the arbitration award. In addition, the
SFT only reviews the award from the perspective of a limited set of grounds,
listed in Art. 190(2) of the Swiss Private International Law Act (SPILA). The SFT
insisted that the ECtHR
“has emphasised that there is a distinct
interest in disputes arising within professional sport, in particular those
with an international dimension, being submitted to a specialised jurisdiction
capable of ruling in a prompt and cost-efficient way” (para. 5.2.4).
According to the SFT judges, State parties
to the European Convention on Human Rights enjoy wide discretion as to how to
approach alleged breaches of substantive provisions ECHR within proceedings for
setting aside awards in international arbitration cases. Citing the example of
Art. 8 ECHR and the freedom to exercise a professional activity, the SFT further
recalled that a sports association – as a private entity – is not directly
subjected to the ECHR. Positive duties of a State party to the ECHR to take
action only arise to a certain extent, where necessary to establish a legal
framework that appropriately takes into account the various interests at stake
(para. 5.2.5).
In the light of these findings, the SFT
concluded that the current Swiss legal system whereby review of international
arbitration awards is subject to a set of exhaustive grounds, with a review of
the merits of the decision essentially limited to breaches of public policy,
and with strict requirements on the parties to assert and substantiate these
grounds, is compatible with the ECHR.
3.
Breach of public policy
The SFT briefly discussed the two grounds
of irregular constitution (art. 190(2)(a) SPILA) and right to be heard (art.
190(2)(d) SPILA) invoked by the appellants, and rejected them.
The SFT then went into what can be viewed
as the real core of its decision: the analysis of the ground of breach of
substantive public policy (art. 190(2)(e) SPILA). For doing so, it divided the
breaches asserted by the Appellants into three limbs: i.) prohibition of discrimination,
ii.) personality rights and iii.) human dignity.
The SFT started by recalling the
well-established notion of public policy within the context of international
arbitration, and its boundaries:
“An award is incompatible with public
policy if it disregards essential and widely accepted values which, according
to the views prevailing in Switzerland, should constitute the foundation of any
legal system” (para. 9.1).
The SFT went on to insist that it is an extremely
rare occurrence (“chose rarissime”) for arbitral awards to be set aside on this
ground. The concept is more restrictive than arbitrariness, and the award must
be incompatible with public policy not only in its reasoning, but also in its
outcomes. Also, neither the breach of constitutional rights, nor of ECHR
rights, can be invoked directly under this ground, even though principles
underpinning the relevant provisions of the ECHR or of the Swiss Constitution
can be taken into account to crystallize the concept of public policy (para.
9.2).
Critically, the SFT’s reasoning had to be
based on the premises that the CAS award had set, whereby athletes targeted by
the DSD Regulation enjoy – due to their levels of testosterone – an advantage
over other female competitors that is ‘insurmountable’, in the sense that it
would allow them to systematically beat female athletes without DSD (see e.g. para.
9.8.2). The SFT thus worked on the assumption that there were also two groups
of interests in conflict, i.e. the ‘protected class’ (“classe protégée”) of the
female category versus the class of the athletes with DSD. There are some
indications within the decision, however, that the SFT judges probably largely
endorsed the CAS findings (e.g. the extract: “the statistics are particularly
compelling in this respect”, para. 9.8.3.3.).
Another important aspect of the case is
that World Athletics – unlike many international federations – is not based in
Switzerland but in Monaco, and is thus not organised as an association of Swiss
law. Indeed, as the SFT stressed in several instances (e.g. para. 5.1.1, para.
9.1, para. 9.2), Swiss law was not applicable on the merits of the dispute and
the case had no connection to Switzerland other than the seat of the arbitral
tribunal that made the challenged award.
i.
Prohibition of discrimination
With
respect to the first limb of discrimination, the SFT stressed that the
prohibition of discrimination enshrined in art. 8(2) Swiss Constitution – aside
from the fact that Swiss constitutional law was not
applicable in the case in the first place – could only apply to the
relationship between the State and individuals. The provision is aimed at
protecting individuals from the State and does not deploy so-called ‘direct
horizontal effect’ among private parties.
Thus, the SFT doubted that the prohibition
of a discrimination originating from such private party could be characterised
as part of the essential values that form public policy. The SFT did, however,
find the appellants’ argument relevant whereby the “relationship between an
athlete and a global sports federation shows some similarities to those between
an individual and a State” (para. 9.4).
In the end, the SFT found that the issue
could be left undecided, holding that, in any event, the award did not enshrine
any discrimination contrary to public policy.
Indeed, even under Swiss constitution law, a
discriminating measure based on one of the enumerated criteria (e.g. sex) can
be justified if they rely on biological differences that categorically exclude
an identical treatment (para. 9.5). The SFT found that the CAS had – in a 165-page
award – conducted a thorough assessment of all arguments brought forward by the
parties, dealing both with complex scientific issues and delicate legal
questions (para. 9.8.3.1). The outcome reached by the CAS was, to the SFT, not
only “not untenable, it was not even unreasonable” (para. 9.8.3.3).
To support its view, the SFT relied heavily
on the notion of fairness of sports competition, referring in particular to the
ECtHR decision on the whereabouts system (FNASS et al. v. France) in
connection with anti-doping regulation. In a somewhat troubling parallel, the
SFT summarised this decision as
“confirming thus that the search for a fair
sport represents an important goal which is capable of justifying serious
encroachments upon sportspeople’s rights” (para. 9.8.3.3).
Stressing that the case before it was not a
doping matter (“no one challenges that athletes 46 XY DSD have never cheated”;
para. 9.8.3.3), the SFT considered nevertheless that certain biological
characteristics can also distort fairness of competition. Any binary division
such as the one between male and female in athletics necessarily creates
difficulties of classification (para. 9.8.3.3). In the SFT’s eyes, the DSD
Regulation were a proportionate way of addressing these difficulties.
ii.
Breach of personality rights
With
respect to the breach of an athlete’s personality rights under Art. 27 et seq. of the Swiss Civil Code, the SFT recalled its jurisprudence
whereby a breach of personality rights can, in certain circumstances, amount to
a breach of public policy – i.e. if there is a clear and severe violation of a
fundamental right – but that these circumstances were not realised in casu (para. 10.1).
In particular, the SFT found that the
measures provided under the DSD Regulation were not such as to affect the
essence of the athlete’s physical integrity: the required examinations were to
be conducted by medical professionals and might also be beneficial to the
athlete by revealing medical data to those who were unaware that they had DSD,
the treatments (oral contraceptives) were not compulsory in the sense that an
athlete could not be compelled to take such treatment.
From the viewpoint of economic freedom, the
SFT found that the matter was not comparable to the Matuzalem case – nota bene the first
matter in which the SFT annulled an arbitral award based on grounds of
substantive public policy – since the DSD Regulation could not be considered to
make participation in the ‘specified competitions’ impossible, and athletes
remain free to participate in races outside those specified categories,
including at international level, so that their economic existence was not
jeopardised. In addition, the DSD Regulation was to be considered a measure
capable of achieving the legitimate goals of fairness in sport and the
preservation of the ‘protected class’ of female athletes, and were necessary
and proportionate to these goals (para. 10.5).
iii.
Human dignity
Finally, the SFT found that the DSD
Regulation were not contrary to human dignity. On the one hand, the SFT
considered that the CAS award did not seek to question the female gender of the
athletes, nor to assess whether these were ‘female enough’.
“In certain contexts that are as special as
competitive sports, one can accept that biological characteristics can,
exceptionally and for purposes of fairness and equal opportunities, eclipse
legal sex or gender identity of an individual. Otherwise, the sheer notion of a
binary division man/woman, which is present in the vast majority of sports,
would lose its raison d’être” (para.
11.1).
On the other hand, with respect to the
treatments at stake, the SFT merely reaffirmed that there was no compulsory treatment,
in the sense that athletes retained the option to refuse such treatment:
“While it is true that such refusal will
result in the impossibility to take part in certain athletic competitions, it
cannot be accepted that this consequence could, in and by itself, amount to a
violation of an individual’s human dignity” (para. 11.2).
Thus, to the SFT, the appellants’ reference
to “humiliating pharmacological experiments” or to the notion of “human guinea
pigs” appeared inappropriate.
Having found that the award was not in
breach of public policy, the SFT found that the appeal had to be dismissed on
this ground also.
Conclusion
Over the next days and weeks, many
commentators will dissect the SFT decision. Unsurprisingly, reactions already
point at the responsibility of Switzerland for failing to protect sportspeople,
and the unsuitability of the current sports dispute resolution system for
dealing with human rights issues.
These issues undoubtedly deserve a debate,
if decisions rendered in international sports matters are to maintain – or,
rather at this point, regain – their credibility.
From the perspective of the current Swiss
legal system and international arbitration law, the SFT only had little leeway
to navigate the delicate issues before it: the grounds cited in art. 190(2)
SPILA – which apply to all international arbitration proceedings in
Switzerland, whether commercial or sports-related – are exhaustive, and the SFT
has so far systematically refused to broaden the notion of substantive public
policy to give it a ‘sports-specific’ meaning for arbitration award rendered by
the CAS. Moreover, the SFT cannot question the facts as set forth in an
arbitral award. Finally, the SFT was asked to review the decision because of
the seat of the CAS in Lausanne, but neither the athlete nor the international
federation that had adopted the rules in dispute were based in Switzerland, and
Swiss law was not applicable to the merits.
The SFT judges may, however, have missed an
opportunity that was available to them de
lege lata, in failing to use the ‘escape door’ of the severe breach of
personality rights, interpreted as part of public policy. The very broad
wording of the SFT jurisprudence in this context leaves a lot of discretion to
adapt to individual situations in which the SFT judges may feel that there is
something ‘unfair’ at stake. Though the SFT went to great lengths to
distinguish the case from the Matuzalem
matter, the situation in which athletes subject to the DSD Regulation are
placed could arguably have been construed and framed in a way that would have
fitted the requirements of this ground, if it had been the SFT’s desire to
reach such a conclusion. The general impression, however, is that the SFT judges
became genuinely convinced of the justification for the ‘protected’ female
category and the fact that competitors subject to the DSD Regulation would
enjoy an insurmountable advantage over other female competitors if they were
authorised to compete freely in the specified competitions. In any event, it was
not within their power of review to question these findings of the CAS award.
It may come as a disappointment to many
that these difficult questions raising complex scientific issues could not be
addressed in the context of the SFT proceedings. However, it is essential to
keep in mind that, like the CAS in its award, the SFT did leave the door open
for future challenges:
“That being said, the CAS did emphasise
that the DSD Regulations could, at a later point, reveal themselves to be
disproportionate in case it should prove impossible or excessively difficult to
apply them. One is bound to admit that the CAS did not give validation, once
and for all, to the DSD Regulations, but, on the contrary, explicitly reserved
the possibility to conduct, as the case may be, a new assessment under the
angle of proportionality when applying the regulation to a particular matter”
(para. 9.8.3.5).
Thus, regardless of what avenues Caster
Semenya may decide to take immediately with respect to the SFT decision, we may
soon see new developments and new legal proceedings around the implementation
of the DSD Regulation. The jury is still out.