Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 2: The African Reality – By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


Having considered the history and justifications for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African context. This appears to be a worthwhile undertaking given these global mechanisms were largely a result of European influence, so understanding their (extraterritorial) impact beyond the EU seems particularly important. Moreover, much has been written about the “muscle drain” affecting African football and the need for such drain to either be brought to a halt, or, more likely and perhaps more practical, to put in place an adequate system of redistribution to ensure the flourishing of African football that has essentially acted as a nursery for European football for at least a century. In the present blog, I intend to draw on my experiences as a football agent to expand on how FIFA’s redistributive mechanisms function in practice when an African player signs in Europe via one of the many kinds of entities that develop or purport to develop talent in Africa. I will throughout address the question of whether these mechanisms are effective in a general sense and more specifically in relation to their operation in Africa.More...



Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part.1: The historical, legal and political foundations - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


In 2019, training compensation and solidarity contributions based on FIFA’s Regulations on the Status and Transfer of Players (RSTP) amounted to US$ 75,5 million. This transfer of wealth from the clubs in the core of the football hierarchy to the clubs where the professional players originated is a peculiar arrangement unknown in other global industries. Beyond briefly pointing out or reminding the reader of how these systems work and the history behind them, this blog series aims to revisit the justifications for FIFA-imposed training compensation and the solidarity mechanism, assess their efficacy and effects through a case study of their operation in the African context, and finally analyse the potential impact of upcoming reforms of the FIFA RSTP in this context.

First, it is important to go back to the roots of this, arguably, strange practice. The current transfer system and the legal mechanisms constituting it were largely the result of a complex negotiation between European football’s main stakeholders and the European Commission dating back to 2001. The conclusion of these negotiations led to a new regulatory system enshrined in Article 20 and Annex 4 of the RSTP in the case of training compensation, and at Article 21 and Annex 5 in the case of the solidarity mechanism. Before paying some attention to the historical influences and how we arrived at these changes, as well as the justifications from the relevant bodies for their existence, let us briefly recall what training compensation and the solidarity mechanisms actually are. More...



International and European Sports Law – Monthly Report – September - October 2020 - By Rhys Lenarduzzi


The Headlines


Human rights and sport  

Caster Semenya

Human rights issues are taking the headlines in the sporting world at present. A short time ago, Caster Semenya’s appeal at the Swiss Federal Tribunal against the CAS decision was dismissed, perhaps raising more questions than answering them. Within the last few days however, the message from the Semenya camp has been that this is not over (see here).  See the contributions from a range of authors at Asser International Sports Law Blog for a comprehensive analysis of the Semenya case(s) to date.

Navid Afkari

As the sporting world heard of the execution of Iranian Wrestler Navid Afkari, a multitude of legal and ethical questions bubbled to the surface. Not least of all and not a new question: what is the responsibility of sport and the governing bodies therein, in the space of human rights?  And, if an athlete is to acquire a high profile through sporting excellence, does that render athletes vulnerable to be made an example of and therefore in need of greater protection than is currently afforded to them? There are differing views on how to proceed. Consider the following from the World Players Association (Navid Afkari: How sport must respond) and that from the IOC (IOC Statement on the execution of wrestler Navid Afkari) which shows no indication through this press releases and other commentary, of undertaking the measures demanded by World Players Association and other socially active organisations. (See also, Benjamin Weinthal - Olympics refuses to discuss Iranian regime’s murder of wrestler).

Yelena Leuchanka

As this is written and relevant to the above, Yelena Leuchanka is behind bars for her participation in protests, resulting in several sporting bodies calling for her immediate release and for reform in the sporting world around how it ought to deal with these issues. As a member of the “Belarus women's national basketball team, a former player at several WNBA clubs in the United States and a two-time Olympian”, Leuchanka has quite the profile and it is alleged that she is being made an example of. (see here)

Uighur Muslims and Beijing Winter Olympics

British Foreign Secretary, Dominic Raab does not rule out Winter Olympics boycott over Uighur Muslims. ‘The foreign secretary said it was his "instinct to separate sport from diplomacy and politics" but that there "comes a point where that might not be possible".’ Though Raab’s comments are fresh, this issue is shaping as a “watch this space” scenario, as other governments might echo a similar sentiment as a result of mounting pressure from human rights activist groups and similar, in lead up to the Winter Games. More...



SFT rejects Semenya appeal: nothing changes - By Andy Brown

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.” More...



The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

 

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet! More...


The SFT’s Semenya Decision under European human rights standards: Conflicting considerations and why a recourse could be successful at Strasbourg - By Kevin Gerenni

Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of Economics.


Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward some concerning reasoning in terms of public policy (“ordre public”) and human rights. In case Semenya decides to challenge the Swiss state before the ECtHR, one can expect the case to shake some grounds at the ECtHR, which would be faced with the question of the application to sport not of fair trial guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right to private life (Article 8 ECHR).

Under Swiss law, the reasons that may lead to the annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act (PILA). Semenya’s strongest case relied on art. 190(2)(e): the award’s incompatibility with public policy. Naturally, this point concentrated most of the SFT’s attention. In order to analyze the compatibility of the CAS award with Swiss public policy, the SFT focused on three main potential breaches of human rights: prohibition of discrimination, personality rights, and human dignity. In doing so, it put forward certain observations that differ with European human rights standards and the ECtHR’s jurisprudence. The purpose of this short article is to analyze those discrepancies and, consequently, Semenya’s prospects of success before the Strasbourg Tribunal.More...


Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati

Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

 

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).More...

Caster Semenya Case Exposes Design Flaws in International Sports Governance - By Roger Pielke Jr.

Editor's note: Roger Pielke Jr. is a professor at the University of Colorado Boulder

 

The decision this week by the Swiss Federal Tribunal not to revisit the arbitral decision of the Court of Arbitration for Sport (CAS) in the case of Caster Semenya was not unexpected, but it does help to expose a major design flaw in international sports governance. Specifically, the institutions that collectively comprise, create and enforce “sports law” appear incapable of addressing flawed science and violations of basic principles of medical ethics.

While different people will have different, and legitimate, views on how male-female competition classifications might be regulated, the issues highlighted involving science and ethics are not subjective, and are empirically undeniable. In normal systems of jurisprudence, procedures are in place to right such wrongs, but in sports governance processes in place prevent such course corrections. And that is a problem.

The empirical flaws in the science underpinning the IAAF (now World Athletics) Semenya regulations are by now well understood, and have been accepted by WA in print and before CAS (I was an expert witness for Semenya, and was present when IAAF accepted responsibility for the flawed research). You can read all the details here and in the CAS Semenya decision. I won’t rehash the flawed science here, but the errors are fatal to the research and obvious to see.

One key part of the comprehensive institutional failures here is that the journal which originally published the flawed IAAF research (the British Journal of Sports Medicine, BJSM) has, inexplicably, acted to protect that work from scrutiny, correction and retraction. Normally in the scientific community, when errors of this magnitude are found, the research is retracted. In this case, the BJSM refused to retract the paper, to require its authors to share their data or to publish a critique of the IAAF analysis. Instead, upon learning of the major errors, the BJSM published a rushed, non-peer reviewed letter by IAAF seeking to cover-up the errors. All of this is non-standard, and a scandal in its own right.

The violation of basic principles of medical ethics required by the implementation of the WA Semenya regulations is also not contested. Both WA and the IOC have claimed to uphold the World Medical Association’s Helsinki Declaration on medical and research ethics. Yet, the WMA has openly criticized the WA regulations as unethical and asked doctors not to implement them. In response, WA has stated that it will help athletes who wish to follow the regulations to identify doctors willing to ignore medical ethics guidelines.

Flawed science and ethical violations are obviously issues that go far beyond the case of Caster Semenya, and far beyond sport. In any normal system of jurisprudence such issues would prove readily fatal to regulatory action, either in the first instance of proposed implementation or via review and reconsideration.

Sport governance lacks such processes. At CAS, the panel claimed that matters of scientific integrity and medical ethics were outside their remit. The SFT is allowed to reconsider a CAS decision only on narrow procedural grounds, and thus also cannot consider matters of scientific integrity or medical ethics. So far then, the flaws in the WA regulations – sitting in plain sight and obvious to anyone who looks, have not been correctable.

This leaves the world of sport governance in a compromised position. Some may look past the scientific and ethical issues here, perhaps judging that barring Semenya from sport is far more important that correcting such wrongs. 

Regardless of one’s views on sex and gender classification in sport, the WA regulations and the processes that produced and have challenged them reveal that sports governance has not yet entered the 21st century. Science and ethics matter, and they should matter in sport jurisprudence as well.  It is time to correct this basic design flaw in international sport governance.

Caster Semenya at the SFT – in 10 points - By Jack Anderson

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.More...


Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision - By Marjolaine Viret

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

 

On 25 August 2020, the Swiss Supreme Court (Swiss Federal Tribunal, SFT) rendered one of its most eagerly awaited decisions of 2020, in the matter of Caster Semenya versus World Athletics (formerly and as referenced in the decision: IAAF) following an award of the Court of Arbitration for Sport (CAS). In short, the issue at stake before the CAS was the validity of the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation). After the CAS upheld their validity in an award of 30 April 2019, Caster Semenya and the South African Athletics Federation (jointly: the appellants) filed an application to set aside the award before the Swiss Supreme Court.[1] The SFT decision, which rejects the application, was made public along with a press release on 8 September 2020.

There is no doubt that we can expect contrasted reactions to the decision. Whatever one’s opinion, however, the official press release in English does not do justice to the 28-page long decision in French and the judges’ reasoning. The goal of this short article is therefore primarily to highlight some key extracts of the SFT decision and some features of the case that will be relevant in its further assessment by scholars and the media.[2]

It is apparent from the decision that the SFT was very aware that its decision was going to be scrutinised by an international audience, part of whom may not be familiar with the mechanics of the legal regime applicable to setting aside an international arbitration award in Switzerland.

Thus, the decision includes long introductory statements regarding the status of the Court of Arbitration for Sport, and the role of the Swiss Federal Tribunal in reviewing award issued by panels in international arbitration proceedings. The SFT also referred extensively throughout its decision to jurisprudence of the European Court of Human Rights (ECtHR), rendered in cases related to international sport and the CAS. More...

Asser International Sports Law Blog | Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision - By Marjolaine Viret

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision - By Marjolaine Viret

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.

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