Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.
Introduction
A remarkable aspect of the run-up to the 2016
Rio Olympic Games was the stream of negative media reports portraying
broad-scale public mistrust in sport, with the most prominent topic being the doping
scandals in athletics and questions surrounding the participation of Russia.
A different controversy, but one also
directed at the credibility of sports, has exposed a few female Olympians to
repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported
that Indian track-and-field athlete Dutee Chand had qualified for the Rio
Olympic Games by breaking the national record, thus to become the first Indian
athlete to run the 100m at the Olympics since 1980. The attention that Dutee
Chand’s qualification attracted within international media, however, was not
related only to her outstanding results. It came as part of a medical, ethical
and legal controversy that has existed for many years relating to ‘policing’
the male versus female divide in sports. Another athlete who has found herself
in the midst of this controversy is South African runner Semenya Caster, whose
participation in the Olympics has been the object of much
conjecture.
The divide between male and female athletes
forms the core of most sports’ competition rules, including athletics. The
justification for this basic divide has rarely been questioned as such, but has
been a matter for debate when it comes to handling atypical situations on both
sides of the ‘dividing line’ such as ‘transgender’ or ‘intersex’ athletes. A category of
athletes that has, especially, been viewed as a challenge to the divide is composed
of female athletes affected by ‘hyperandrogenism’, a health condition that
results in naturally elevated androgen levels, including testosterone levels.
On 24 July 2015, a CAS panel rendered a decision
involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the
ongoing debate about the policies regulating hyperandrogenism in sport. Much
has been reported in the media about the case: controversial issues include
whether the CAS was the appropriate forum to assess these questions; whether
the decision was appropriate, both on the merits and on the procedure; and what
the consequences of the CAS award would be, for the parties, for athletics and
for the sporting community at large.
Much like the current crisis surrounding
doping in sports, the public attention on women with (proven or suspected) hyperandrogenism
is driven by a concern that an athlete’s physiology – natural or artificially
induced could distort competition, destroying the ‘level playing field’
that supports the Olympic ideal. Both topics are also often brought back to the
goal of protecting an athlete’s health. Parallels are further found in the
strong reactions both topics evoke, and the steps taken by the regulating
authorities to convince the public that everything in their power is being done
to preserve a level playing field.
A less obvious but equally important point
of comparison can be found in the issues both topics raise concerning the legal
validity of decisions made by sports organizations, especially in a
science-related context. This blog focuses on those more ‘legal’ aspects,
through the prism of the decision of the CAS in the Dutee Chand matter and its
legal implications. After touching briefly on the
background of the case, we will comment on two aspects of the Chand award with
respect to challenges in regulating hyperandrogenism in sport within the
confines of the law: First from the viewpoint of a CAS panel called upon to
evaluate the validity of a set of regulations, and second from the viewpoint of
the sports organizations seeking to both adequately protect fairness in sport
and to provide a legally valid (and effective) regulatory solution.[1]
Background of the Case
In 2014, Dutee Chand, an internationally
successful, young track-and-field athlete, was provisionally suspended from
participation in any athletic events by the Athletics Federation of India (the
“AFI”),[2]
as a result of a series of medical examinations that suggested her “male
hormone” levels were elevated.[3]
Dutee Chand filed an appeal against this decision to the CAS, naming both the
AFI and the IAAF as respondents. She asked the CAS panel to (i) declare the Hyperandrogenism
Regulations invalid, and (ii) overturn the AFI’s decision and clear her to
compete. The second request for relief, however, was dropped during the course
of the proceeding, thus the award addressed only the issue of the Regulation’s
validity.
The IAAF Regulations Governing Eligibility
of Females with Hyperandrogenism to Compete in Women’s Competition
(“Hyperandrogenism Regulations” or “the Regulations”) govern the eligibility of
female athletes with a condition known as ‘hyperandrogenism’ to participate in
the female category of athletic events. Schematically, the Regulations provide
that in order to be eligible to participate in the female category, a woman
must have androgen levels below the “normal male range,” which is defined as
testosterone levels falling below a threshold of 10 nmol/L.[4]
An athlete with testosterone levels reported above this threshold may still be
allowed to compete if she establishes, by a balance of probabilities, that she
“derives no competitive advantage from having androgen levels in the normal
male range”.[5]
Cases of suspected hyperandrogenism may be investigated according to three
levels of medical assessment, potentially including tests targeting physical,
laboratory, genetic, imaging, and psychological assessments. Should an athlete
be eventually diagnosed with hyperandrogenism, the stakes are high: in order to
return to competition, athletes need to undergo medical treatment to reduce
their testosterone levels below the ‘admissible’ threshold.
Dutee Chand challenged the Regulations’
validity on several grounds, which the CAS panel considered after addressing
the parties’ respective burdens and standards of proof in an initial section.
The grounds examined were unlawful discrimination, lack of scientific validity,
breach of proportionality, and conflict with the World Anti-Doping Code
(“WADC”).
Challenges CAS panels face
in assessing the validity of sports regulations
The Chand award formidably
illustrates the challenges an arbitration panel faces when asked to reach a
conclusion on the ‘legal validity’ of a set of sports regulations, especially
when such assessment implies delving into complex scientific issues. Each of these
challenges can provide valuable ‘lessons learned’ for future CAS panels confronted
with comparable issues.
Reconciling the ‘abstract’
and ‘concrete’ facets of the dispute
Ostensibly, the object of the CAS
proceedings was for Dutee Chand to be cleared to resume competing as a female
athlete, in other words, for the decision rendered against her by the AFI to be
set aside[6].
But this ‘concrete’ request for relief was dropped at the hearing, leaving the
panel with only the ‘abstract’ question of the Regulation’s validity to
consider. It appears that the CAS panel was asked between the lines to render
an informal advisory opinion on the legitimacy of the current approach to
hyperandrogenism in sport; the formal advisory opinion is an instrument no
longer available under the CAS Code.[7]
This left the CAS panel in an uncomfortable
position: having to decide on abstract legal questions without the benefit of a
concrete set of facts to rely upon. Symptomatically, the background presented
in the award regarding the Athlete’s actual situation is tenuous. The award does
not even discuss whether Dutee Chand’s testosterone levels actually exceeded
the 10nmol/L threshold set in the Hyperandrogenism Regulations[8].
The CAS panel simply conducted its entire assessment under the - unverified - assumption
of her being genuinely an athlete with hyperandrogenism within the meaning of
the Regulations.
Moreover, real questions of defence
strategy relevant to counsel appearing before CAS can be raised here: had Dutee
Chand not waived her request for relief directed against the AFI decision, the
CAS panel would have been forced to render a final award on her case and could
not have left her in the legal limbo in which she is now (see below, on the
rendering of an interim rather than a final award).
The CAS has often – explicitly or through
the decision of its panels shown ambition to act as a harmonising body, an
‘international’ or ‘supreme’ court of sport.[9] From a perspective of sports
policy, that may be – depending on the opinion – a desirable objective, or an
illegitimate attempt for sports governing bodies to shield their regulations
from the judicial review of state courts. From a strictly legal perspective, it
is questionable whether CAS panels have at their disposal the means to fulfil
this ambition. CAS panels are arbitration tribunals in arbitral proceedings
conducted under Swiss arbitration law. As such, they only have the power to
rule on a dispute brought before them by two – or more – specific parties, and
they can only render decisions on requests for relief that a party has
submitted to them, within the framework of the facts put forward by the
parties. Approaches such as the one taken in the Chand award should not be encouraged, especially in this odd combination
in which a CAS panel would accept to rule on abstract requests for relief that
are not directly decisive to the outcome of the dispute.
Allocating the burden of proof to prove or disprove the Regulation’s
validity
For reasons that are not readily
apparent from the award, the CAS panel separated its assessment of the
Regulations’ scientific basis into two limbs: i.) one referred to as an
assessment of the ‘scientific validity’ of the Regulations, for which Dutee
Chand was said to have accepted the burden of proof, and ii.) one referred to
as a justification for the prima facie
discrimination and considered part of the proportionality assessment, for which
the IAAF was assigned the burden of proof[10]. For both limbs, the CAS panel
ended up holding that the party bearing the burden of proof failed to discharge
its burden, due to lack of sufficient scientific evidence.
The reasoning of the CAS panels in
the award makes it rather obvious that the two limbs are conceptually one and
the same: Both assess the question of whether the infringement upon female
athletes’ rights entailed by the Regulations could be justified by a
sufficiently strong scientific basis. Assigning the burden with respect to the
general ‘scientific validity’ to Dutee Chand (i.e. the use of testosterone as a
valid marker for purposes of the Regulations) and the burden with respect to
another aspect of ‘scientific validity’ (i.e. the threshold set in the
Regulations for that marker) to the IAAF (via the proportionality test), as the
panel did, created an artificial separation in the legal analysis, by dressing
the same issue in two different hats.
From the viewpoint of legal
technique, this separation appears questionable and unnecessarily complicated. The
assumption, from a viewpoint of judicial policy, is that the separation provided
the arbitrators with an argument to both support the general thinking
underpinning the Regulations (i.e. the use of testosterone levels as a marker) by
considering that it was not without scientific basis, while at the same time
finding the Regulations lacked sufficient strength in their modalities (i.e.
the extent of the advantage conferred to hyperandrogenic athletes by their testosterone
levels) to be upheld.
Differentiating between fact-finding and legal appreciation
Whether sports regulations have a
sufficiently strong basis in science does not pertain to the fact-finding
process, but to the CAS panel’s appreciation of the legal validity or justification (including
proportionality) of those regulations. In this particular set-up, the question of ‘scientific
validity’ is thus not strictly speaking one related to the burden of proof, as
the Chand award would imply, but
reflects which party suffers consequences if a CAS panel is not able to make
sense of the scientific state-of-knowledge. The prospect of suffering adverse
consequences indirectly provides an incentive for parties to present studies
and expert opinions in support of their position, but does not qualify as a
burden of proof stricto sensu, which
only applies to issues of fact[11].
Nevertheless, the outcome of the CAS
panel’s reasoning in the Chand matter
appears justified: To the extent that the Hyperandrogenism Regulations
represent an infringement on certain athletes’ rights (or, as the award
considered it, in cases of discrimination), such infringement or discrimination
has to be justified to be considered valid. In the case of the Hyperandrogenism
Regulations, the alleged justification was based on the scientific basis behind
the mechanics of the regulations. Thus, if no such basis could be shown, the
CAS panel was bound to consider the Hyperandrogenism Regulations invalid. The
CAS panel, in the particular matter, reached the same outcome by assigning the
burden of proof on the issue it ultimately declared decisive to the IAAF, i.e. whether
the manner in which testosterone was used as marker in the Regulations
(especially the threshold value) could claim a sufficiently solid scientific
basis.
Accounting for the role of scientific uncertainty
A truly important message to retain
from the CAS award on scientific validity is the crucial role that ‘scientific
uncertainty’ bears for the legal rule-making or adjudicative process.
‘Scientific uncertainty’ here refers to situations in which no consensus can be
found within the scientific community, in which various expert positions
coexist, or in which experts agree that the state-of-knowledge does not allow
for a definitive answer. In all cases, the science is ‘unsettled’ in a manner
that makes it impossible for the legal actors to extract a clear-cut finding that
would suit their purposes. By nature, situations of ‘scientific uncertainty’ are
the most likely to lead to legal disputes. CAS panels are frequently confronted
with this constellation in doping matters or other science-related disputes
brought before them.
The result of the panel’s assessment
of the scientific foundations for the Regulations – whether desirable or not,
justified or not – was hence utterly predictable. It was pre-determined from
the moment the CAS panel decided that the IAAF would have the burden of proof
on the very issue that would ultimately prove decisive for the outcome of a
dispute. Allocating the burden of proof on a scientific issue amounts to
assigning to one party (or one category of party) the risk of scientific
uncertainty. Since disputed scientific issues are likely to result in the panel
being unable to make up its mind one way or another, thus having to fall back
on the burden of proof, the party that carries this risk of scientific
uncertainty is almost certain to lose its case.
(Avoiding) reaching a legal conclusion on a highly sensitive
issue
At the end of their analysis, the
CAS arbitrators reached the conclusion that the IAAF had not discharged its
burden of proof and that they were therefore unable to uphold the validity of
the Hyperandrogenism Regulations based on the evidence before them[12]. The logical (and legal) consequence
would have been for the panel to render a final award in accordance with these
conclusions and grant the athlete’s request for relief. However, the panel took
a different – and unusual option, of issuing a decision they referred to as “interim award”
instead.
One fails to see the rationale for
such a decision. The approach may well be pragmatic, since it relieved (at
least temporarily) the CAS panel of the need to make a final binding decision
on a complex social and political issue, and allowed Dutee Chand to resume
competition while at the same time providing a (provisional) framework for
international athletic competitions with respect to participation of
hyperandrogenic athletes.[13] However, issuing an “interim award” in this
matter is not justifiable from the perspective of arbitration law. This is all
the more true given that none of the parties appears to have requested the
issuing of a preliminary decision in the proceedings, nor even to have
contemplated this type of outcome. Its legitimacy under the CAS Code – which is
conceived to guarantee an efficient procedural framework on CAS proceedings –
is equally questionable. Moreover, the choice of issuing an ‘interim award’ has
far-reaching legal and practical consequences for the dispute that further call
into doubt the nature of Dutee Chand’s ‘victory’, including the following:
- The CAS proceeding number ‘CAS
2014/A/3759’ is not closed. The CAS panel remains formally constituted for the
remainder of the two-year period assigned to the IAAF. If the IAAF does not
submit further evidence, the CAS panels will need to make a final award taking
note of such failure and drawing the consequences thereof, which could then be
appealed before the Swiss Supreme Court;
- The “interim award” can only be
appealed to the Swiss Supreme Court on very restrictive grounds under the Swiss
Private International Law Act (Article 190, para. 3). Only an appeal for
grounds of irregular composition of the tribunal or lack of jurisdiction could
be filed, none of which would seem of relevance to the present matter. The
other grounds for challenging an arbitral award – in particular the right to be
heard or public policy – cannot be raised in an appeal against an interim
award. This de facto bars the parties
from appealing the award before the elapse of the two-year period; and
- The award does not acquire a res iudicata effect and cannot be
enforced, though it binds the panel itself to its own determinations (as
opposed to a mere procedural order).[14] Its effect for other
athletes potentially concerned by decisions made under national regulations
implemented to reflect the Hyperandrogenism Regulations is thus uncertain. In
theory, but for the panel’s expectations that the IAAF will act based on the
sport hierarchy, a national federation that was not a party to the dispute
could still make a decision against an athlete.
While CAS panels may order further
evidentiary measures on their own initiative and request a party to adduce
further evidence, the CAS Code certainly does not envisage that a party could
be given a period of two years to do so. Rendering an interim award in these
circumstances could be considered to amount to a denial of justice, i.e. a
refusal by the CAS panel to rule on the request for relief properly submitted
to it. The time limit granted unilaterally, to one of the parties only, could
also be seen as conflicting with equality of the parties.[15]
Should the IAAF return with additional evidence during the two-year period,
would Dutee Chand also be granted an equivalent time limit to respond to the
evidence?
Challenges sports
organisations face in navigating the interface between law and science
The debate surrounding the
definition of male and female is a complex one, not only in sport but in
various domains of society. This means that a sports organisation’s task of
making policy decisions that adequately account for these complexities is far
from straightforward.
Unlike
former policies in sport, the manner in which the IAAF – and other sports
federations based on the policy of the IOC – set out to deal with
hyperandrogenism as of 2012 does not formally aim at defining an athlete’s sex.
Hence, it does not represent a ‘gender or sex testing’ process stricto sensu. Instead, the CAS panel in
the Dutee Chand case acknowledged that whether a person is to be considered
‘female’ from the viewpoint of participation in athletics relies on the
criterion of whether a person is a female as a matter of law[16].
The Hyperandrogenism Regulations do not – at least not from a legal viewpoint purport
to decide whether someone is female or not. Ironically, this shift in approach
that was to take away from sports authorities the controversial power to assign
a ‘gender’ to an individual for purposes of taking part in its competitions is
precisely what has brought those authorities into the dilemma of having to
introduce corrective factors in the name of a level playing field.
Indeed, the Regulations seek to
police a divide based on an issue of law (whether someone is a female ‘as a
matter of law’) through a corrective factor that relies on a biological
parameter, which is an issue of fact (the person’s level of testosterone); an
approach that is bound to lead to a sense of unfairness in borderline
situations. Undoubtedly, one major flaw in the system was that the corrective
factor had the effect of excluding athletes from the category into which they
fit as a matter of law, without offering them the option to compete in the
category in which the corrective factor would place them. The IOC Medical &
Scientific Commission statement subsequently issued (see below, in the
concluding remarks) encourages a solution whereby legally female athletes who
fail to meet the requirements of Hyperandrogenism Regulations would be
authorized to compete in the male category. This solution would at least have the
merits of removing this blatant inconsistency of the system. However, one can
legitimately wonder if, de facto, it
would not have the same effect of excluding hyperandrogenic women from elite
competition entirely.
To entirely reframe the approach to
sex categories in sport – without the mixture of legal and biological
corrective factors chosen in the Hyperandrogenism Regulations – would suppose one
of the following:
- redefining the definition of
‘sex’ for purposes of sports categories based only on biological criteria, i.e.
the level of testosterone or other biological factors deemed appropriate,
- abandoning the use of
corrective factors, and referring to an individual’s sex exclusively as a
matter of law, or
- abandoning any form of sports category
related to sex and/or gender altogether.
It seems predictable that any of
these options would imply some sort of compromise and entail new legal
challenges. In particular, it is important to note that even if one should
simply abandon any regulation on hyperandrogenism (or, more generally, on
intersex matters), the question of how to legally define a ‘female’ would
remain. In particular, the CAS panel in the Chand matter noted that whether
someone is a male or female “is a matter of law”[17].
This immediately raises a follow-up question, namely: “what law?”. And, of
equal importance, how does the applicable law approach this question? Options
could range from self-identification to reliance on a complex set of scientific
criteria, with each solution bringing its own challenges. Relying exclusively,
as has been suggested[18],
on the manner in which a person was raised and/or perceives him-/herself within
society might prove difficult to crystallize into a firm legal criterion.
Even as sports regulations strives
towards fairness and removing barriers to ‘pure’ competition, it must be
recognized that the best that sports organizations can aim for in this context
is to strike a reasonable balance between seeking a level playing field and
celebrating natural advantages. On a deeper level, it also supposes a
discussion as to how lawyers can and/or may make decisions that will profoundly
affect individuals when science appears unable to provide the data needed to
make sound legal choices.
Concluding remarks
Perhaps the most striking aspect of
the Chand matter as revealed by its aftermath is the limited impact a CAS award
addressing abstract legal issues can exert in practice.
The Chand award did not end the hyperandrogenism debate. In November
2015 – over four months after the Chand award was published the IOC Medical & Scientific
Commission, after holding a Consensus Meeting on Sex Reassignment and
Hyperandrogenism, reaffirmed its position by insisting on the need to have
rules in place “for the protection of women in sport and the promotion of the
principles of fair competition”. The statement also encourages the IAAF, with
support of other sports organizations, “to revert to CAS with arguments and
evidence to support the reinstatement of its hyperandrogenism rules”. The IOC’s
reaction to the interim award rendered shows that little progress was made in
resolving the dispute over the validity of the Hyperandrogenism Regulations. As
an only sign of a shift in its position, the statement recommends that “to
avoid discrimination, if not eligible for female competition the Athlete should
be eligible to compete in male competition”.[19] The new IOC position, which in effect
represents a step towards considering the testosterone threshold as the only
decisive criterion for determining the boundary between male and female
athletes, immediately triggered critical
reactions – both as to the modalities of its adoption and as to its
contents – on part of circles close to Dutee Chand’s defence and opposed to
regulations on hyperandrogenism.
Thus, the CAS award does not seem to
have altered either camp’s position. This may be in part a side effect of the
panel’s decision to opt for an interim award, but also demonstrates more
generally the limitations on the power of law, regulatory bodies and judicial
authorities to resolve disputes of such scientific and ethical dimension.