In the past couple of years, the Fédération Internationale de Football Association (FIFA) made remarkable steps towards embedding human rights into their practices and policies. These developments have been discussed at length and in detail in this blog and elsewhere, but a short overview at this point is necessary to set the scene. Arguably, most changes were sparked by John Ruggie’s report from 2016, in which he articulated a set of concrete recommendations for FIFA “on what it means for FIFA to embed respect for human rights across its global operations”, using the UN Guiding Principles on Business and Human Rights (UNGPs) as authoritative standard.[i] As a result, in May 2017, FIFA published a human rights policy, in which it commits to respecting human rights in accordance with the UNGPs, identifies its salient human rights risks, and acknowledges the potential adverse impacts it can have on human rights in general and human rights of people belonging to specific groups. In October 2017, it adopted new bidding regulations requiring bidders to develop a human rights strategy and conduct an independent human rights risk assessment as part of their bid. In March 2017, FIFA also created a Human Rights Advisory Board, which regularly evaluated FIFA’s human rights progress and made recommendations on how FIFA should address human rights issues linked to its activities. The mandate of the Advisory Board expired at the end of last year and the future of this body is unknown at this point.

While some of these steps can be directly connected to the recommendations in the Ruggie report, other recommendations have largely been ignored. One example of the latter and focus of this blog post is the issue of embedding human rights at the level of national football associations. It outlines recent steps taken by the German football association “Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to what extent these steps can be regarded as proactive moves by those associations or rather spillover effects from FIFA’s human rights efforts.

The DFB

Since 2017, DFB runs a working group on the association’s human rights concept. This was triggered by DFB’s application to host the EURO 2024 and the social programs around the 2018 World Cup. In particular, the required human rights strategy for the EURO 2024 application led DFB to adopt a statutory commitment to human rights in 2019. Paragraph 2 of DFB’s Statutes read as follows:

“The DFB takes responsibility for respecting all internationally-recognized human rights and promotes the respect for these rights. It strictly opposes unconstitutional behaviour as well as any form of discriminatory or inhuman attitudes and behaviours. This applies to every form of violence, irrespective of it being of physical or mental nature. The DFB commits in particular to the protection of children and youth from sexual abuse”.[ii]

The human rights strategy for the 2024 tournament has been developed through engaging a variety of stakeholders, including the German Human Rights Institute, the German Olympic Committee and a range of civil society organizations representing the rights of children or fans amongst others. According to the DFB and some of these stakeholders, the strategy builds on and streamlines existing initiatives regarding corporate social responsibility and youth work. The DFB claims that human rights have been part of the DFB’s national and international activities for years, although not framed within recognized human rights standards. Since 2010, its Ethics Code enshrines values such as respect, diversity, integrity, transparency and solidarity in football. Moreover, it promotes projects on participation, integration, fair play, diverse fan cultures, and the prevention of violence and promotion of equality both at grass-roots and elite level sports. This certainly provides a good vantage point for DFB’s human rights efforts. Currently, the DFB is finalizing its human rights policy, and in the meantime, a number of smaller initiative were taken, such as the organization of hearings on the issue of political statements of players in 2020.

The KNVB

Last month, the KNVB announced its support for the adoption of a sport and human rights covenant, similar to the existing agreements on international responsible business conduct. In its announcement, it acknowledges the unique position of sports to promote human rights and highlights the need to use this power also in the context of international tournaments. According to the KNVB, such a covenant would advance collaboration with governments in host countries and help to address issues, promote dialogue and investigation, facilitate the exchange of knowledge and information, and create a level-playing field. Moreover, the KNVB claims that it can help to foster sustainable positive change regarding the human rights situation in host countries and provide players and associations with a responsible manner to participate in international tournaments.

KNVB’s call for a covenant has not been without criticism. Amnesty Netherlands explicitly voiced their concerns regarding the initiative on twitter, welcoming the efforts of KNVB to look at the human rights situation in Qatar in more detail, but opposing the creation of a covenant, for the reason that it would not provide any remedy to migrant workers in Qatar. The hazardous and inhuman working conditions on World Cup-related construction sites have been documented extensively, including in a recent study conducted by Amnesty Netherlands. These reports show that despite legislative changes to Qatar’s labour law, changes on the ground are lacking and additional human rights issues related to the 2022 World Cup, such as the protection of LGBTQI fans remain largely unaddressed. While the KNVB published its point of views on a World Cup in Qatar together with a list of initiatives regarding the tournament, these points and measures are rather broad and do not explicitly address existing human rights risks. An exception is an event planned for this year on human rights and sport events hosted together with the Dutch House of Representatives.

In addition to KNVB’s recent decision to adopt a sport and human rights covenant, a number of existing KNVB initiatives are worth highlighting from a human rights perspective. For instance, the KNVB was one of the football associations pushing FIFA to integrate human rights requirements into bidding regulations for international tournaments. Other examples relate more to the day-to-day business of football, rather than events, such as KNVB’s efforts on promoting diversity and countering racism and other forms of discrimination within the world of Dutch football. While these efforts are clearly linked to human rights standards, they are not framed in a human rights language, nor streamlined under a commitment to human rights.

FIFA’s ‘trickle down effect’ or civil society pressure?

On a global scale, the DFB and KNVB might be the pioneers of national football associations starting concrete efforts to embed human rights into their policies and practices. Clearly, the DFB is a couple of steps ahead of the KNVB, but both associations are committed to in particular addressing human rights issues in host countries of football tournaments. Furthermore, both draw inspiration from the broader business and human rights movement and explicitly reference the respective National Action Plans on business and human rights, which are policy documents adopted by the governments to implement the UNGPs. However, it becomes clear that through focusing on human rights risks related to host countries of international tournaments, the KNVB only reacts to a fraction of the actual human rights risks involved in the world of football.

Nevertheless, both associations are making a start and in order to find ways for encouraging other national football associations to follow suit, it is essential to understand what triggered these recent initiatives and changes. Arguably, there are two possible explanations. The first is that FIFA’s human rights efforts begin to have a trickle down-effect. The need for this has been stressed by Ruggie in his 2016 report. He recommends FIFA to adopt a human rights policy that applies to its relationships with its member associations (Recommendation 1.1) and advises FIFA to use its annual member associations’ conferences to raise awareness on human rights responsibilities of national football associations (Recommendation 4.5). Moreover, he recommends that “FIFA should ensure that the human rights commitment in Article 3 of the FIFA Statutes is mirrored in the requirements of the Standard Statutes for member associations, and is also extended to the requirements for confederations’ statutes at the earliest opportunity” (Recommendation 1.3). While FIFA has not yet adapted the Standard Statutes for member associations, DFB nevertheless decided to mirror FIFA’s statutory human rights commitment in its own Statutes. In fact, when presenting its human rights efforts on its website, the DFB explicitly refers to FIFA’s human rights policy and human rights-related regulations of UEFA.

The second explanation concerns the increasing pressure from civil society in both countries, due to the 2022 World Cup coming closer, but also due to the rise of reports on cases of abuse in the world of football in the past years. In particular the cases of mental, physical, and sexual abuse of female football players on the national team of Afghanistan & Haiti made international headlines, as well as the recent revelations of cases of sexual abuse of young football players in clubs in the United Kingdom in the 1970s. While these types of abuses where not explicitly addressed in Ruggie’s report, it does identify gender discrimination as “endemic human rights challenge” for the world of association football.[iii] Pressure on national football associations arguably also increased through national and regional regulation. Both associations seem to acknowledge the parallels to the broader business and human rights movement, which currently sees a trend of mandatory due diligence laws on national and regional levels. The fact that football is big business, both on a day-to-day basis and when big tournaments are happening is uncontested. Therefore, there is no doubt that the UNGPs’ corporate responsibility to respect human rights applies to national football associations and that the UNGPs provide a good starting point and framework for national football associations to understand and implement their human rights responsibilities.

Conclusion

Obviously, these two explanations are not mutually exclusive and FIFA’s human rights journey plays an important role in the efforts taken by the DFB and the KNVB. Moreover, the importance of Ruggie’s report in 2016 cannot be underestimated. Nevertheless, it seems like some of these recent human rights efforts by national football associations are rather reactive than proactive, following FIFA’s lead and the pressure by civil society on the world of sports more generally. As long as the result would be the same, it should not matter much. That, however, is questionable when it comes to sport and human rights. Reacting to specific issues when they arise can result in a piece-meal approach that might not only be more labour intensive but more importantly is likely to overlook a range of human rights risks related to the world of football and sports more generally. Therefore, a comprehensive approach is key to understanding the human rights risks involved and identifying ways to address these risks.[iv]

The hope is that DFB’s and KNVB’s efforts will develop further and eventually ensure that human rights are fully embedded and respected in the world of (national) football. Very concretely, these efforts can have great potential for the joint bid of these two countries together with Belgium for the 2027 Women’s World Cup, which provides a good opportunity for knowledge exchange between those associations on their human rights efforts.

[i] John G Ruggie, ‘“For the Game. For the World.” - FIFA and Human Rights’ (2016) 4

[ii] Translated by the author. See original source here.

[iii] John G Ruggie, ‘“For the Game. For the World.” - FIFA and Human Rights’ (2016) 24

[iv] Sally Engle Merry, The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking (The University of Chicago Press 2016) 46; Daniela Heerdt & Nadia Bernaz, Football and Women’s Rights: the Case for Indicators for FIFA’s Feminist Transformation (2020) 34, Jean Monnet Working Paper 5/20.

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.

[1] The author was consulted on sports arbitration issues in connection with this application to set aside.

[2] All extracts quoted are private translations by the author of the original decision in French.