In a recent judgment, the Brussels Court of First Instance confirmed the legality of a so-called surety undertaking, i.e. an agreement in which the parents of a minor playing football guarantee that their child will sign a professional contract with a football club as soon as the child reaches the legal age of majority.

This long-awaited ruling was hailed, on the one hand, by clubs as a much needed and eagerly anticipated confirmation of a long-standing practice in Belgian football[1] and, on the other hand, criticised by FIFPro, the international player’s trade union, in a scathing press release.

Background

Jason Eyenga-Lokilo (“Jason Lokilo”), born on 17 September 1998, joined the youth academy at Belgian top club, RSC Anderlecht (“Anderlecht”), in the spring of 2007. Anderlecht had set up a specific youth academy a couple of months earlier, which combined school education and football training for young football players.

As Jason Lokilo was one of the youth academy’s more promising prospects, Anderlecht and Lokilo’s parents entered into an agreement in which the parents, in exchange for a payment of 75,000 EUR (paid in instalments), guaranteed Anderlecht that their son was going to sign his first professional contract with the club upon turning 16, i.e. the minimum age in Belgium for signing a player contract. This same agreement stipulated that the parents were liable to pay Anderlecht a lump sum of 450,000 EUR in damages, if their son did not sign such a player contract.

When, in 2013, Aston Villa made a request to Anderlecht to give Jason Lokilo a trial when he was 15 years of age, Anderlecht refused, citing the player’s training obligations and the existing surety undertaking. Jason Lokilo’s father, a football agent, then told Anderlecht that he wanted to revise the terms of the surety undertaking, given the fact that a number of European football ‘powerhouses’ wanted to sign his son. Anderlecht refused his demand.

In June 2014, Jason Lokilo and his parents sent a letter to Anderlecht arguing that the surety undertaking was unlawful and hence null and void. Jason Lokilo alleged that unacceptable coercion had been put on him to sign his first contract with Anderlecht, which the player and his advisers considered was contrary to public policy. Anderlecht replied that it considered the surety undertaking to be perfectly valid since the surety did not prevent the player from signing his first professional contract with another club.

By the end of July of 2014, the gridlock between both parties ended with Jason Lokilo leaving Anderlecht and the latter club starting court proceedings against Jason Lokilo’s parents for a damages claim of 450,000 EUR.

Jason Lokilo eventually signed a contract with Crystal Palace in the summer of 2015.[2]

The Brussels Court of First Instance ruling

In its 22 November 2016 judgment, the Brussels Court of First Instance (“CFI”) confirmed the principle of this surety undertaking in the context of professional football.

The CFI referred to Article 1120 of the Belgian Civil Code that expressly allows the principle of a surety undertaking. A surety undertaking under Belgian civil law can be defined as an agreement in which one party promises another party regarding what a third party (who is either absent or legally not competent) will do, give or refrain from doing. The third party retains the freedom not to commit himself, since he, as a third party, is not bound by the agreement. However, the contracting party that made the promise will in that case be liable to pay the contractually foreseen damages if this third party eventually does not commit himself.

The main question the court had to decide was to determine whether the surety undertaking had a valid object and cause.

Jason Lokilo’s parents first argued that the contract was contrary to public policy legislation, considering the contract violated the freedom of association principle enshrined in the Convention on the Rights of the Child (“UNCRC”), the European Convention on Human Rights (“ECHR”) and the European Social Charter (“ESC”). The CFI did not follow this reasoning, simply stating that the surety undertaking did not bind Jason Lokilo and did not prevent him from signing a contract with another club.[3]

Lokilo’s parents also invoked an alleged violation of Belgian federal legislation, which prohibits player contracts below the minimum age requirement. This argument was cast aside by the court since at no point in time was a player contract signed below the legal minimum age of 16.

Furthermore, Lokilo’s parents argued that the contract breached a (regional) decree guaranteeing an amateur sportsperson the right to leave their club free-of-charge at the end of each sporting season. The CFI repeated that Lokilo was not bound by the surety undertaking and could still freely leave Anderlecht, stating that this outcome was, moreover, exactly what Lokilo did in 2014. An aggravating circumstance for the CFI was the fact that Lokilo’s father had indicated to Anderlecht that Aston Villa in 2013 was willing to cover the 450,000 EUR in damages, as a result of which the CFI considered these damages were ‘clearly not an obstacle for Jason Lokilo to leave Anderlecht’.

The argument invoked by Lokilo’s parents under EU law (free movement) was also dismissed by the CFI ‘for lack of a cross-border EU element’[4].

In the end, the CFI granted damages to Anderlecht but limited the amount payable by the parents, on the one hand, based on the grounds that Jason Lokilo’s mother was not an agent (and hence not professionally active in football) and, on the other hand, because 450,000 clearly exceeded the actual damages suffered by Anderlecht. The CFI set the damages ex aequo et bono at 140,000 EUR instead.

Some considerations

The Lokilo case echoes the Spanish Baena case,[5] although the latter concerned a slightly different situation and had a clearly different outcome.

Where the Spanish Supreme Court in its 5 February 2013 ruling considered a pre-contractual agreement concluded on behalf of a minor football player at odds with the minor’s best interests and therefore contrary to public policy, the CFI adopted a rather strict ‘pacta sunt servanda’ approach.

The CFI considered that the surety undertaking did not prevent Lokilo from signing a contract with a club other than Anderlecht. This finding may be correct from a strictly legal perspective, but ignores the reality that a child may not want to pursue his or her career at another club if he realises that, by doing so, his or her parents will be liable to pay damages. Moreover, under Belgian law, while a minor is indeed of legal age to sign his or her first professional contract when turning 16, the minor in principle still needs parental authorisation to do so until reaching 18 years of age. Parents might of course not be very inclined to agree to their child signing his or her first professional contract elsewhere, and therefore not provide the necessary parental authorisation, if doing so triggers important financial liabilities for them…

The surety undertaking seems also incompatible with regional decrees guaranteeing amateur sportsmen the right to leave their club free-of-charge at the end of each sporting season. These decrees are considered to have a public policy character by the case law, and disallow any hindrance, financial or otherwise, when moving to another sports club.[6] The fact that the surety undertaking related to a switch from an amateur to a professional contract,[7] did not alter the fact that the player was not free to leave for another amateur club when turning 16 either, since he was forced to sign a professional contract with Anderlecht when turning 16 or see his parents face the prospect of paying hefty compensation.

Arguments regarding the fundamental rights of the minor were either not invoked or not upheld by the CFI. The CFI stated that the matter concerned a contract between the parents and the club and not between the player and the club, as a result of which the minor’s fundamental rights were not jeopardised.

This argument is frankly unconvincing.

It should be noted that the UNCRC[8] recognises the right of a child to freedom of association[9] and the right to participate freely in cultural life.[10] The UNCRC furthermore protects children from economic exploitation.[11] The UNCRC provides also that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

The UNCRC is often labeled as ‘soft’ law,[12] with Belgian case law even considering most of its provisions lacking a self-sufficient or self-executing character;[13] yet, the UNCRC remains a treaty with clear moral authority. Moreover, a number of its provisions do have direct effect, especially when read in combination with other international legal sources, such as the ECHR and the EU Charter of Fundamental Rights. The obligation to consider the best interests of the child is expressly incorporated in the EU Charter of Fundamental Rights.[14] Even though the obligation to observe the child’s best interests is not expressly laid down under the ECHR, the ECtHR incorporates this obligation also in its case law.[15] One could further argue that the surety undertaking disproportionally affects the career development and perspectives of a player who is a minor, and so violates that player’s proprietary rights[16] and the right to family life that both the player and the player’s family enjoy.[17]

In addition, both the Belgian Constitution[18] and the Belgian Economic Code[19] protect the freedom for each individual to freely choose his or her occupation. This freedom can only be curtailed through or by law.[20] An agreement jeopardising one’s freedom to freely choose one’s occupation, has an unlawful causa and is null and void.[21]

The statement made by the CFI that the EU internal market law does not apply due to a lack of cross-border effect is at odds with the fact that Lokilo clearly intended to join a club outside Belgium, within the EEA (as shown by Aston Villa’s interest and his eventual signing with Crystal Palace), a fact that was not contested by Anderlecht. As Anderlecht is a Belgian football ‘powerhouse’, and clearly one of the top clubs in Belgium (if not the top club), a player aiming higher than Anderlecht would necessarily have to look at opportunities abroad.

If EU law is deemed to apply, then the guiding principles of the Bernard case must be observed. The CJEU, in its Bernard ruling,[22] recalled that an obstacle to the freedom of movement of workers can be accepted only if it pursues a legitimate aim and is justified by overriding reasons in the public interest. The CJEU clearly accepted recruitment and training of players as a legitimate aim. Even where that is so, that measure’s application still must be such as to ensure the objective’s achievement and not go beyond what is necessary for that purpose. In considering whether a system restricts the freedom of movement, the specific characteristics of sport, and of football in particular, their social and educational function, should be taken into account. One may even take into account the costs of training other players that do not succeed at establishing a professional career (the player factor).[23]

This being said, the surety undertaking mechanism in this case seems overly restrictive for the player. Although, again, a surety undertaking binds the parents and not the player, and damages can only be claimed from the parents, the surety undertaking obviously ultimately serves to discourage a player from exercising his or her right of free movement. Moreover, the player already suffers a restriction upon his or her free movement, following the training compensation mechanism in place under FIFA regulations, which is criticisable in its own right.[24] The surety undertaking constitutes an additional burden on the player’s free movement. In Bernard, although the CJEU seemed to accept the principle of training compensation, the CJEU dismissed the French arrangements governing young players (‘joueurs espoirs’) since they did not involve compensation for real training costs incurred, but rather were damages for breach of contractual obligations calculated with reference to the total loss suffered by the club. And taking into account the actual loss suffered by Anderlecht is exactly what the CFI has done. To the extent a surety undertaking goes beyond what is necessary to encourage the recruitment and training of minors (and funds those activities), a violation of the EU internal market law seems given.

Conclusion

In conclusion, based on the considerations set out above, it can certainly not be excluded that the ruling will be overturned on appeal. Such an appeal, which would bring the case before the Brussels Court of Appeal, is being considered by the player’s parents, but has not yet been lodged.

Apart from the doubt around their enforceability, it should be noted that payments under surety undertakings may in addition give rise to (social) tax issues, if they are not structured correctly.[25] [26]

The problem with the surety undertaking in the Lokilo case predominantly lies with the surety undertaking’s disproportionate character in the specific case at hand. Less restrictive solutions could, in the author’s view, be envisaged, although exploring such alternatives would exceed the scope of this article.

[1] Surety undertakings, together with money lending contracts (loan to parents pledging that their child will sign first professional contract, non-reimbursable if child effectively signs contract), are common practice with Belgian top level teams.

[2] Jason Lokilo is still a member of the Crystal Palace Academy. Crystal Palace offered Anderlecht compensation for an approximate amount of 45,000 EUR, which Anderlecht refused.

[3] “(…), la convention de porte-fort litigieuse n’engageait que les parents de Jason vis-à-vis du club et ne créait aucune obligation pour lui”

[4] “Or, contrairement à l’arrêt Bernard qu’ils invoquent (arrêt du 16 mars 2010 – pièce 3 de leur dossier), M. et Mme Lokilo ne démontrent pas, dans le cas present, l’existence d’un élément d’extranéité.”

[5] Sentencia de 5 de febrero de 2013. STS 229/2013. Tribunal Supremo. Sala de lo Civil. http://www.iurismuga.org/es/bases-de-datos/jurisprudencia/144-jurisprudencia-derecho-espanol/8153-sts-n-de-resolucion-26-2013-de-05-02-2013-sentencia-baena. The case was invoked by the parents before the CFI but considered irrelevant because, according to the CFI, the contract between Baena and Barcelona was entered into by (on behalf of) the minor player.

[6] Vred. Ghent 16 September 2013, role n° 130318.

[7] The relevant decrees apply to amateur sports, not professional sports.

[8] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

[9] Article 15 UNCRC

[10] Article 31 UNCRC

[11] Article 32 and 36 UNCRC. One may argue that, in the end, a child is used to generate money through (later) transfers and sponsorship deals.

[12] H. Stalford, Children and the European Union: Rights, Welfare and Accountability, Hart Publishing, [2012], 34.

[13] Belgian case law has been reluctant to grant direct effect to the UNCRC: cf. Cass. 11 June 2010, obs. S. Van Drooghenbroeck, Le droit international et européen des droits de l’homme devant le juge national, Larcier, [2014], 196 and following.

[14] Article 24 (2) of the EU Charter of Fundamental Rights

[15] Handbook on European law relating to the rights of the child, European Union Agency for Fundamental Rights, 75.

[16] Article 1 of ECHR First Protocol: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (…)”.

[17] Article 8 ECHR

[18] Article 23 Constitution

[19] Article II.9 of the Economic Code. This is one of the oldest Belgian public policy principles, previously laid down in the famous Decree D'Allarde of 2 - 17 March 1791

[20] C.E. 12 July 1993, JLMB [1993], 1442, note J.F. NEURAY

[21] Cass. 29 September 2008, C.06.443.F, JTT [2008] 464.

[22] CJEU 16 March 2010, Olympique Lyonnais v Olivier Bernard and Newcastle United.

[23] i.e. the ratio of players who need to be trained to produce one professional player.

[24] S. Weatherill, European Sports Law, T.M.C. Asser Press [2014], 485 and following.

[25] The tax and social security authorities may e.g. argue that these payments relate to the (future) employment contract of the player.

[26] The surety undertaking’s ‘nephew’, the money lending contracts, in addition pose problems under Belgian finance law since clubs as a rule do not possess the necessary licences or authorisations.

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.