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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.


I.               The scope of Swiss public policy versus ECHR guarantees

To begin with, the SFT distinguished between Swiss public policy and the scope of the ECHR provisions:

“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).[1]

“This is the place to specify that the violation of the provisions of the ECHR or of the Constitution does not count among the grievances restrictively enumerated by art. 190(2) PILA. It is therefore not possible to directly invoke such a violation. (…) Thus, the plea alleging a violation of public policy is not admissible insofar it simply tends to establish that the award in question is contrary to the various guarantees drawn from the ECHR and the Constitution.” (para. 9.2).

Contrary to this interpretation, the ECtHR has referred to the fundamental role of the ECHR in specifying the reach of a European public policy. In Loizidou v. Turkey (Preliminary Objections), it stated:

“(…) the Court must bear in mind the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings and its mission (…) "to ensure the observance of the engagements undertaken by the High Contracting Parties" ” (para. 93).      

In that same judgment, it remarked the value of the ECHR as “a constitutional instrument of European public order (ordre public)” (para. 75). Similar understandings can be found in Bosphorus v. Ireland and Avotiņš v. Latvia, among others. As a consequence of this preeminent position that the ECHR holds, certain interests of the State must be outweighed by the Convention’s role in the field of human rights (Bosphorus at para. 156).


II.             The concept of “horizontal effect” in human rights violations

The SFT continued with the analysis of the prohibition of discrimination, for which it partially rest upon an argument that evidently collides with European human rights criteria. Although the Tribunal also concluded that the “relationship between an athlete and a global sports federation shows some similarities to those between an individual and a State” (para. 9.4), it did argue that under Swiss law the prohibition of discrimination does not have a direct horizontal effect. The SFT considered that:

“Although the SFT has consistently held that the prohibition of discrimination is a matter of public policy (…) it has done so, primarily, in order to protect the individual vis-à-vis the State. In this respect, it may be noted that, from the point of view of Swiss constitutional law, the case law considers that the guarantee of the prohibition of discrimination is addressed to the State and does not, in principle, produce a direct horizontal effect on relations between private persons. (…) It is therefore far from obvious that the prohibition of discrimination by private individuals is one of the essential and widely recognized values which, according to the prevailing conceptions in Switzerland, should form the basis of any legal system.” (para. 9.4).

The ECtHR has a long tradition of deeming States responsible for not preventing or sanctioning human rights violations between private persons, which means that the ECHR also applies horizontally. Since its 1981 ruling Young, James and Webster v. the UK, the Court has repeatedly held that the responsibility of a State is engaged if a violation of one of the Convention’s rights is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms to everyone within its jurisdiction.[2]

In Pla and Puncernau v. Andorra, the Court held the State responsible for the rulings of its domestic courts, which did not redress an individual from the discrimination inflicted by another private person. The Court, referring to its duties, clearly affirmed that:

“In exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.” (para. 59).

Finally, in this same vein in Identoba and Others v. Georgia, the ECtHR sanctioned the State by explaining that the difference in treatment leading to discrimination can source from a purely private action, which in this particular case included attacks to a transgender person.


III.           The necessity and proportionality of the DSD regulations

Throughout its ruling, the SFT followed the reasoning advanced by the CAS to determine that the IAAF (today “World Athletics”) DSD regulations were not in violation of fundamental human rights. With a view to analyzing a recourse to the ECtHR, I will focus on the discrimination and human dignity sections of the ruling (for a remarkably-detailed insight of the SFT’s core findings please refer to  Marjolaine Viret’s recent blog).

In assessing the necessity of the DSD regulations –pursuant to the alleged legitimate aim of fair competition– the SFT considered that “female athletes are disadvantaged and deprived of chances of success when they have to compete against 46 XY DSD athletes. The statistics speak for themselves.” (para. 9.8.3.4). A fact that does not seem to be getting attention is the “800 Metres Women” all-time records table, which lists three women with a better time than Caster Semenya. None of these three women were reported to be DSD athletes. Also, the scientific articles that supposedly demonstrate unequivocal advantage for DSD athletes have been denounced as flawed (for example, by Pielke Jr., Tucker & Boye). Nevertheless, the SFT invoked the ECtHR’s FNASS and Others v. France to shockingly conclude that “the search for a fair sport represents an important goal which is capable of justifying serious encroachments upon sportspeople’s rights”[3] (para. 9.8.3.3).

In addition, the SFT assessed the proportionality of the regulations vis-à-vis the potential gender identity implications. The SFT primarily relied on the allegedly-mild side effects caused by the hormonal treatment: “no different in nature from the side effects experienced by thousands, if not millions, of other women of type XX” (para. 9.8.3.5).

Referring to gender identity (stemming from human dignity), the SFT argued that:

“It must be made clear that the sentence does not in any way seek to question the female sex of the 46 XY DSD athletes or to determine whether they are sufficiently “female”. It is not a question of knowing what a woman or an intersex person is. The only issue to be resolved is whether it is contrary to human dignity to create certain rules of eligibility, for the purposes of sporting equity and equal opportunity, applicable only to certain women who enjoy an insurmountable advantage arising from certain innate biological characteristics. (…) In some contexts, as specific competitive sport, it is permissible that biological characteristics may, exceptionally and for the purposes of fairness and equality of opportunity, overshadow a person’s legal sex or gender identity.” (para. 11.1).

The SFT struggles to highlight that Semenya’s “female sex” is not under question. However, the DSD regulations, implemented in competitions that are divided into the male/female binary, denote that Semenya’s innate sex is not female enough as to compete in female events. On the other hand, she is allowed to compete in male events.

The ECtHR has a growing jurisprudence relating to discrimination on the basis of sex which, especially linked to gender identity, leads to violations of the ECHR Articles 14 and 8. In the 2002 leading case Goodwin v. the UK which dealt with Article 8 ECHR violations, the Court remarked that:

“It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals.” (para. 82).

It is true that Goodwin involved the rights of a trans person, not intersex.[4] However, as the European Commission points out in its Trans and intersex equality rights in Europe – A comparative analysis, the judgment was the inception of States obligation to legally recognize preferred gender in Europe. Similar conclusions in favor of gender identity would later appear, among others, in Y. Y. v Turkey, Van Kück v. Germany and Identoba and Others v. Georgia (this last one dealing with Article 14 ECHR). In Garçon and Nicot v. France the Court underpinned that “the right to respect for private life under Article 8 applies fully to gender identity, as a component of personal identity. This holds true for all individuals.” (para. 95). Later in that judgment, it rendered a particularly relevant observation for Semenya’s case:

“Medical treatment cannot be considered to be the subject of genuine consent when the fact of not submitting to it deprives the person concerned of the full exercise of his or her right to gender identity and personal development, which, as previously stated, is a fundamental aspect of the right to respect for private life.” (para. 130).

It must be noted that this paragraph pertains particularly to the world of sport. “Personal development” is a fundamental part of the Principles of the Olympic Movement, as this article by Durántez Corral et al. indicates.


Conclusions

The reasoning behind the above paragraphs supports Semenya’s case before the ECtHR and would give her a serious chance to prevail in Strasbourg. Even though it is true that the Court has mostly endorsed the lex sportiva system with its judgments FNASS, Platini and Mutu & Pechstein, the latter did aim at certain fair trial deficiencies and triggered concrete changes. Could Semenya’s case be stronger? Yes, for instance if Switzerland had ratified Protocol No. 12 ECHR or if the former IAAF were based in Switzerland instead of Monaco (an issue which the SFT took care to highlight).

On the other hand, the judges could additionally resort to extremely relevant reports in the field of intersex rights, namely the Council of Europe’s document on eliminating discrimination against intersex people, or refer to the categorical document against DSD regulations written by three UN experts. Needless to say, these instruments support the athlete’s claims even further.

The scenario is set for Semenya to create considerable turmoil if she decides to take the case to Strasbourg, where the ECtHR will have to engage –once again and deeper this time– with lex sportiva and Switzerland’s role in ensuring that sports governing bodies comply with human rights. Or, will it look the other way?


*All translations of the SFT’s decision done by the author from French, except where otherwise noted.


[1] Translation done by Marjolaine Viret for her blog article “Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision”, available here.

[2] See Spielmann, D.; “Chapter 14: The European Convention on Human Rights, The European Court of Human Rights” in Human Rights and the Private Sphere: A Comparative Study (p. 430); Eds. Oliver, D. &  Fedtke, J.; Routledge; 2007. 

[3] Translation done by Marjolaine Viret for her blog article “Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision”, available here.

[4] As shown in the excerpt, the judgment did address the relevance (or the lack of it) of the “chromosomal element” in defining a person’s gender.

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Asser International Sports Law Blog | Financial Fair Play: Lessons from the 2014 and 2015 settlement practice of UEFA. By Luis Torres

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

Financial Fair Play: Lessons from the 2014 and 2015 settlement practice of UEFA. By Luis Torres

UEFA announced on 8 May that it had entered into Financial Fair Play settlement agreements with 10 European football clubs. Together with the four other agreements made in February 2015, this brings the total to 14 FFP settlements for 2015 and 23 since UEFA adopted modifications in its Procedural rules and allowed settlements agreements to be made between the Clubs and the Chief Investigator of the UEFA Club Financial Control Body (CFCB).[1] 

In the two years during which UEFA’s FFP regulations have been truly up and running we have witnessed the centrality taken by the settlement procedure in their enforcement. It is extremely rare for a club to be referred to the FFP adjudication chamber. In fact, only the case regarding Dynamo Moscow has been referred to the adjudication chamber. Thus, having a close look at the settlement practice of UEFA is crucial to gaining a good understanding of the functioning of FFP. Hence, this blog offers a detailed analysis of this year’s settlement agreements and compares them with last year’s settlements.

The two tables below provide an overview of last year’s nine settlement agreements (table 1) and this year’s settlement agreements (tables 2 and 3).  



Table2014.jpg (310KB)



Table2015(1).jpg (259.6KB)


Table2015(2).jpg (228.4KB)


DIFFERENCES WITH LAST YEAR’S SETTLEMENTS

The financial contribution (fines)

In 2015, the financial “sanctions” have been much lower than last year, especially with regard to the highest penalties. In 2014, Paris Saint-Germain and Manchester City agreed to pay an overall of €60 million (€40 million, subject to the fulfilment of the conditions imposed by UEFA to the club). This year, the two highest financial contributions will be those of FC Internazionale (€20 million) and AS Monaco (€13 million). Moreover, the contributions imposed on FC Internazionale and AS Monaco have a conditional element: should the clubs fulfil UEFA’s requirements, they will get €14 million and €10 million returned to them respectively.

Last year, the revenues derived by the clubs from participating in European competitions were withheld by UEFA in every settlement agreement. However, this year, UEFA will withhold revenue from the UEFA competitions in only some cases, namely for FC Krasnodar, FC Lokomotiv Moscow, Besiktas, AS Roma, AS Monaco and FC Internazionale.

Moreover, another difference concerns the way the club may pay the ‘conditional amount’ provided in the settlements. Last year, the conditional amounts were “withheld and returned” to the club, provided it fulfilled the “operational and financial measures agreed with the UEFA CFCB”. This year, however, these conditional amounts “may be withheld in certain circumstances depending on the club’s compliance”. This means that there is no a priori retention of the money by UEFA that is subject to the achievement of the objectives agreed.  


The deficit limits

As can be seen from the tables above, UEFA limits the total deficit that clubs are allowed to have. The clubs must comply with this UEFA obligation for one or two seasons, depending on the settlement agreement. This condition was imposed in both the 2014 and 2015 agreements. Yet, some differences arise with regard to the deficit allowed for clubs.

These differences become apparent when comparing FC Rubin Kazan (2014) with AS Roma (2015). Both clubs agreed to a three seasons duration of the settlement, a €6 million fine, a reduction of the squad (22 players for AS Roma and 21 for FC Rubin Kazan), and a limitation on the number of player registrations. However, the maximum allowed deficit for each club is different. As regards AS Roma, UEFA restricted the deficit authorized to €30 million. It should be noted that, according to UEFA’s own regulations, the maximum acceptable deviation is €30 million.[2] In other words, this is not a real sanction imposed on AS Roma, since every European club has the duty to comply with the maximum acceptable deviation rule. In its agreement with FC Rubin Kazan, on the other hand, UEFA imposed a deficit limit of €30 million for the first season and full break-even compliance for the following season. This is a harsher sanction than in the agreements found in 2015, in which a specific deficit is permitted for the second season of the settlements (see the FC Krosnodar, AS Roma, Besiktas and AS Monaco agreements).    


The salary cap

This salary cap measure is regulated in Article 29(1)(g) of the Procedural Rules Governing the UEFA Club Financial Control Body. According to this provision, a salary cap is a “restriction on the number of players that a club may register for participation in UEFA competitions, including a financial limit on the overall aggregate cost of the employee benefits expenses of players registered on the A-list for the purposes of UEFA club competitions”.

In 2014, every settlement reached by the clubs with UEFA prohibited the increase in salary expenses for the first season following the agreement. In 2015, this condition was not stipulated in all of the agreements. More concretely, the agreements settled with Ruch Chorzów, Panathinaikos, Hapoel Tel Aviv, and Hull City, do not include a salary cap.

Changes have also occurred regarding the structure of the salary cap imposed. In 2014, a unitary interpretation of the salary cap provision was used by UEFA. In the case of Manchester City, for of example, UEFA stated that “employee benefit expenses cannot be increased during two financial periods”.[3]

In 2015, however, UEFA used two different ways to ‘cap’ salaries:

  1. In the cases of the FC Rostov, CSKA Sofia and Kardemir Karabükspor settlements, it held that “the total amount of the Club’s aggregate cost of employee benefits expenses is limited”.

  2. With regard to FC Internazionale and Besiktas, the settlements hold that “the employee benefit expenses to revenue ratio is restricted and that the amortisation and impairment of the costs of acquiring players’ registration is limited.”

The first alternative is similar to the solution adopted in 2014 to cap players’ wages. As UEFA releases only some elements of the settlements, the precise levels of the cap imposed remain unknown, as was the case last year. The mechanism used by UEFA in the case of Besiktas and FC Internazionale is different. It is based on a fixed ratio between employee benefit-expenses and the clubs revenue. The cap becomes more dynamic, as it is coupled to another variable, the revenue of the club, but also less predictable. 


Is the settlement a sanction or an agreement?

According to UEFA’s regulations, the UEFA CFCB Investigatory Chamber has the power to negotiate with clubs who breached the break-even compliance requirement as defined in Articles 62 and 63 UEFA Club Licensing and Financial Fair Play Regulations. If a settlement is not reached, the CFCB Adjudicatory Chamber will unilaterally impose disciplinary sanctions to the respective clubs.

The ‘settlement procedure’ allows for a certain degree of negotiation between the parties. Settlements are likely to be in the interest of both parties. Firstly, by agreeing to UEFA’s terms, the club secures its participation in European competitions which, in many cases, are one of its main sources of revenue. Not agreeing to the terms would entail risking a much bigger sanction. Naturally, such a sanction can be appealed in front of the Court of Arbitration for Sport (CAS), but such a procedure would be expensive, time consuming and does not guarantee a better outcome. To UEFA, a settlement is a guarantee that the case ends there, that its FFP regulations do not get challenged in front of the CAS, but also that it does not need to invest resources to fight a long and costly legal battle. Moreover, the settlement procedure provides the flexibility needed for a case-by-case approach to the sanctions. 


CONCLUSION 

The settlement procedure is a key element to the current implementation process of the UEFA FFP regulations. UEFA is still in the learning phase concerning FFP and the recourse to settlements is a way to provide for much needed regulatory flexibility. Even if the settlements have many advantages for all the parties involved, they also have detrimental effects. It is regrettable that they are not published in full, even if slightly redacted, so that clubs may enjoy a higher legal certainty when facing an FFP investigation. This lack of transparency makes it harder to predict and rationalize the sanctions imposed and exposes UEFA to the risk of being criticized for the arbitrariness of its settlement practice.

This year’s settlement harvest was undoubtedly more lenient than in 2014. UEFA has apparently decided to water down its FFP sanctions, maybe to make sure that FFP survives the many legal challenges ahead. The balance between under-regulation, that would render FFP toothless, and over-regulation, that would make it difficult for clubs to invest and take risks, is indeed very difficult to find. UEFA’s settlement practice is a soft way to walk this complex line. 



[1] Article 14(1)(b) and Article 15 of the Procedural Rules Governing the UEFA Club Financial Control Body – Edition 2014.

[2] Article 61 UEFA Club Licensing and Financial Fair Play Regulations

[3] Decision of the Chief Investigator of the CFCB Investigatory Chamber: Settlement Agreement with Manchester City Football Club Limited (2014)

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