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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.”

Men vs. Women 

World records prove that men run faster and throw further than women. As explained in the CAS Decision, the IAAF modified the DSD Regulations to exclude XX athletes from their scope. By doing this, it was able to frame the DSD Regulations as mitigating any advantage held by ‘biologically male’ athletes in international events run between 400m and one mile in its female category.

Caster Semenya fits the IAAF definition as ‘biologically male’, as she has one of the five DSDs outlined in the DSD Regulations, and competes in the Restricted Events. Semenya’s status as a 46 XY DSD athlete was confirmed by the Swiss Federal Supreme Court on 29 July 2019, when it revoked a supra-provisional suspension of the application of the DSD Regulations to Semenya. ‘Mokgadi Caster Semenya is an “athlete concerned” within the meaning of Article 2.2 of the DSD Regulations’, reads its 29 July interlocutory order (available here in French).

The Semenya case isn’t exclusively about whether men should be able to line up against women in female events – although the debate has sometimes been framed that way. Caster Semenya is a woman, who has been outed as having a DSD by World Athletics’ relentless case against her, which began when she was 18 (she is now 29). She is a 46 XY karyotype woman who has been very successfully competing (and this is not insignificant) against 46 XX karyotype women.

The Semenya case is firstly about whether World Athletics has conclusively proven that women who are 46 XY DSD karyotype hold a significant advantage in the events the rules cover. Secondly, it is also about whether it has proven that such an advantage is so great that it renders competition between female and DSD athletes in the covered events meaningless.

Such an argument should always be decided scientifically. The SFT Decision doesn’t do that. There were serious concerns about the scientific evidence used to support the DSD Regulations both before, during, and after the CAS Decision. Although we have been through some of these concerns before, they are worth restating, as they have yet to be addressed.

There are also concerns about the way in which sport’s rules and regulations have been moulded and changed in order to accommodate the DSD Regulations. They have also not been addressed. But, firstly, it is important to explain what the DSD Rules seek to regulate and why.

The DSD Rules

The DSD Rules, as they have been called since November 2019 (PDF below), cover athletes with one of five listed DSDs competing in international events run between 400m and one mile in World Athletics’ female category, if their endogenous (natural) testosterone levels are above 5nmol/L and have an ‘androgenising effect’ (i.e. if that testosterone is taken up by their androgen receptors and boosts their physiology). Athletes who meet these conditions must use hormonal contraceptives to reduce their testosterone levels to below 5 nmol/L for six months prior to competing, and must maintain testosterone levels at below 5 nmol/L in order to continue competing.

Testosterone is a natural, endogenous (internally produced) steroidal hormone. In the XY karyotype, it is understood that testosterone is the single primary hormone driving the endocrine system, a chemical messaging system that regulates the physiology. In the XX karyotype, it is understood that two primary hormones – oestrogen and progesterone – perform the same function, along with testosterone in much smaller amounts. 

The logic behind the DSD Rules – explained during Semenya’s challenge to them – is that DSD athletes develop an unfair advantage over XX karyotype women due to the continued action of ‘elevated’ testosterone on their XY karyotype physiology from puberty onwards. I have termed this a ‘legacy advantage’, since not every DSD athlete will automatically become an elite runner between 800m and one mile in World Athletics’ female category. Correct diet, dedication, and training over time is also required.  

The DSD Rules seek to reconcile this ‘legacy advantage’ by requiring medical intervention in the present. It could be argued that World Athletics is medically handicapping DSD athletes in the present for an advantage they have strived to develop over time. But as explained, the SFT was not required to consider that conundrum.

‘Affected athletes can either (a) take a daily oral contraceptive pill; or (b) take a monthly injection of a GnrH agonist; or (c) have their testes surgically removed (a ‘gonadectomy’)’, reads Briefing Notes on the Rules published by World Athletics. ‘It is their choice whether or not to have any treatment, and (if so) which treatment to have. In particular, the IAAF does not insist on surgery. The effects of the other two treatments are reversible if and when the athlete decides to stop treatment. Importantly, lowering testosterone in one of these ways is the recognised ‘gender-affirming’ standard of care for any individual (athlete or not) who is 46 XY but has a female gender identity.’

As explained above, the SFT couldn’t make any determination about whether it was ethical to require a 46 XY DSD athlete who is not unwell to take a contraceptive pill designed for 46 XX karyotype females. The CAS did recognise this issue, and found that there were serious side effects on 46 XY DSD individuals who used contraceptive pills designed for XX females to lower their endogenous (internally produced) testosterone to below 10 nmol/L (the DSD Rules set an upper limit of 5 nmol/L).

‘Ms. Semenya described the negative effects that the testosterone-suppressing medication had on her mental and physical health’, reads para.78 of the CAS Decision. ‘Her symptoms included becoming hot and sweating profusely each night and experiencing significant weight gain. She also felt sick constantly, suffered from regular fevers and had constant internal abdominal pain. These symptoms also had an “enormous” effect on her mental state, impeding her mental sharpness and undermining her self-confidence.’

In the XY karyotype, testosterone is the only hormone driving the endocrine system that regulates an individual’s physiology. Therefore, it is understood that reducing it is likely to make people unwell. As the CAS and SFT decisions recognise, XY karyotype individuals typically have circulating testosterone between 7.7 nmol/L to 29.4 nmol/L. 

Of course, reducing this to 5 mol/L will make an XY karyotype athlete slower. This is because the only natural hormone driving the XY karyotype endocrine system, which supports their physiology, has been seriously curtailed. The same effect cannot be replicated in the XX karyotype, since three hormones drive the endocrine system and a much lower baseline level of testosterone (0.06 nmol/L to1.68 nmol/L) exists in the first place. 

This is why testosterone deficiency is a recognised as a medical condition that can make XY karyotype people unwell. DSD athletes are XY karyotype, as the IAAF made clear during its arguments against Semenya’s appeal at the CAS. Other XY karyotype athletes, such as Kristen Worley and Sloan Teeple, have also been made unwell due to sport’s rules on testosterone, as have certain DSD athletes who underwent a horrific experience ahead of the London 2012 Olympics. Shockingly, the IAAF used the experience of these medically damaged athletes as evidential support that the DSD Regulations are effective in making 46 XY DSD athletes slower!

Unlike XY karyotype individuals who are transitioning to become XY females, 46 XY DSD athletes usually do not wish to change their physiology through hormonal modification. Their testosterone levels are not ‘elevated’, to borrow World Athletics’ description, but are normal for their karyotype. World Athletics requires them to reduce the primary stimulus for their endocrine system to levels consistent with the XX karyotype in order to compete in events run between 400m and one mile in its female category. 

World Athletics requires 46 XY DSD athletes to undergo potentially damaging hormonal treatment to compete in its female category. Arguably, it requires athletes to ‘feminise’ themselves.

As explained above, this is likely to make 46 XY karyotype athletes unwell, although the SFT didn’t have to examine whether the CAS had assessed this danger sufficiently. Nowhere in the DSD Regulations, or in the Explanatory Notes, is there any mention of measures taken to monitor an athlete’s health after her natural testosterone levels are reduced to below 5 nmol/L.

Show me the science

As detailed in this article, there were two major pieces of scientific evidence used to support the DSD Regulations. The first is 2017’s Paper One, entitled ‘Serum androgen levels and their relation to performance in track and field: mass spectrometry results from 2127 observations in male and female athletes’. Paper Two, published in 2018, is ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’.

Paper One has a number of significant issues, discussed in this article under ‘Scientific evidence on performance advantage’. In short, the Paper found a correlation between XX karyotype females with elevated free testosterone and performance at the Daegu 2011 and Moscow 2013 IAAF World Championships, events which were marred by doping. Among the 1,332 female observations in the study, just nine were 46 XY DSD.

Paper Two also has a number of significant issues, detailed under ‘The 2018 Study’ in this article. In short, evidence for increases in muscle mass and strength appear to come from a 2014 Study performed on 62 XX karyotype post-menopausal women (mean age, 53) who had undergone a hysterectomy; it references several other studies in order to support the proposition that DSD athletes benefit from increases in circulating testosterone that increases circulating haemoglobin, which in turn translates to an increase in oxygen transfer; and compares endogenous testosterone levels with increases in muscle mass and strength.

One of the studies it relies on is a 2017 Study examining women with Congenital Adrenal Hyperplasia (CAH), a condition in which the adrenal gland can produce more testosterone. The Study found that in women with CAH, erythropoiesis may be driven by androgens. The proposition is that as DSD athletes have higher levels of testosterone (an androgen), they benefit from increased erythropoiesis (production of oxygen-carrying red blood cells). 

On 9 January 2019, shortly before the CAS hearing on 26 February, the IAAF removed CAH and a CAH variant from the scope of the Regulations. It did so because, in the IAAF’s words, ‘individuals with these DSDs only have high testosterone levels if their adrenal conditions are uncontrolled, in which case they would suffer side-effects that would make elite sports performance impossible’

Yet as explained above, a study examining XX karyotype women with CAH had been used as part of the IAAF’s evidence base in support of the Regulations. It would appear that by carving XX karyotype women and CAH out from the scope of the Regulations, the IAAF negated part of its own evidence base. 

There is more information about scientific inaccuracies in the evidence used to support the DSD Rules here; here; and here. In addition, as previously mentioned, World Athletics used data from athletes medically damaged by its Hyperandrogenism Regulations – the forerunner to the DSD Rules – to prop up the DSD Rules. 

The issue is not that World Athletics hasn’t proven that 46 XY karyotype athletes can run faster or throw further than 46 XX karyotype athletes. Anybody with access to Wikipedia can do that. It is whether World Athletics has proven that by virtue of the effects of testosterone on the 46 XY DSD physiology from puberty onwards, 46 XY DSD athletes have been able to develop an advantage that is so significant that it should be considered unfair in the specific international female events that World Athletics targets. It is here that scientists argue World Athletics falls short (see the Twitter threads here and here).

Moving the goalposts

As already mentioned, today’s DSD Rules are not the same as the DSD Regulations that Semenya challenged. The IAAF amended the DSD Regulations both before and after the CAS heard Semenya’s case against them. The result was that shortly before the CAS hearing, the DSD Regulations applied to five disciplines rather than the seven referred to in the CAS judgment.

World Athletics even sent a lawyer to Play The Game 2019. The lawyer didn’t participate in a debate about the science underpinning the DSD Regulations, but distributed a pre-prepared Paper attacking the presenters and their arguments. Anyone interested in whether World Athletics succeeded should read this article.

The World Athletics Paper references recent research involving the administration of 10mg of testosterone cream daily to athletes. The research found that athletes who administered the cream performed better. Of course they did. This is doping.

A person doped with testosterone is getting something extra. Testosterone doesn’t discriminate. If you administer testosterone, an athlete’s physiology has something that it didn’t have before. Everyone knows this. It is the reason why the application of exogenous (external) testosterone is prohibited in sport. 

The same is not true for 46 XY DSD athletes. Their testosterone levels are endogenous (internal), and are their hormonal normal. 

The forerunner to the DSD Rules were the Hyperandrogenism Regulations. The CAS allowed the IAAF to terminate Dutee Chand’s case against them by promulgating the DSD Regulations. That the CAS would allow a serious grievance to be terminated by simply promulgating new Regulations should ring alarm bells for anyone interested in jurisprudence. 

The CAS Decision also raised questions about whether athletes had given their consent for samples collected for anti-doping purposes to be used for gender verification purposes. As previously reported, the 2021 World Anti-Doping Code has been amended to allow anti-doping samples to be used in this way. Up until 2019, the World Anti-Doping Agency’s International Standards (ISL) prohibited such use.

The Hyperandrogenism were promulgated in May 2011. Article 6.3 of the World Anti-Doping Agency’s (WADA) 2012 International Standard for Laboratories (ISL) mandates that written consent is required from any athlete for a sample collected for anti-doping purposes to be used in any other way. ‘No Sample may be used for any purpose other than as described in Article 6.2 without the Athlete’s written consent’, it reads. ‘Samples used for purposes other than Article 6.2 shall have any means of identification removed such that they cannot be traced back to a particular Athlete’.

Such a prohibition was repeated in the 2015 ISL, but is not present in the 2019 ISL. However, Annex 2.1 of the 2019 ISL mandates: ‘The Laboratories and WADA-Approved Laboratories for the ABP shall follow the Helsinki Accords and any applicable national standards as they relate to the involvement of human subjects in research. Voluntary informed consent shall also be obtained from human subjects in any drug administration studies for the purpose of development of a Reference Collection or proficiency testing materials.’

‘In medical research involving human subjects capable of giving informed consent, each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail, post-study provisions and any other relevant aspects of the study’, reads Article 26 of the World Medical Association’s (WMA) Helsinki Declaration. ‘The potential subject must be informed of the right to refuse to participate in the study or to withdraw consent to participate at any time without reprisal. Special attention should be given to the specific information needs of individual potential subjects as well as to the methods used to deliver the information.

‘After ensuring that the potential subject has understood the information, the physician or another appropriately qualified individual must then seek the potential subject’s freely-given informed consent, preferably in writing. If the consent cannot be expressed in writing, the non-written consent must be formally documented and witnessed.’

The IAAF’s Competition Medical Guidelines (click here to download) also emphasise that they comply with the Helsinki Declaration. The CAS Decision in Semenya’s case highlights serious questions as to whether athletes provided consent for their anti-doping samples to be used in Paper One. ‘The IAAF relies on the initial consent provided for doping control purposes’, reads the Decision. ‘ASA repeatedly asked the IAAF to disclose copies of the signed consent forms provided by the athletes whose samples and data form the basis of the analysis in BG17 [Paper One]. The IAAF has declined to do so. The Panel considers that it can therefore be inferred that no such forms exist, or that if they do exist they do not assist the IAAF on this issue.’

It would therefore appear that World Athletics relied on evidence obtained from athletes in breach of WADA’s ISL, its own Competition Medical Guidelines and the WMA’s Helsinki Declaration in order to support the DSD Rules. This would also appear to invalidate part of its evidence base, but the CAS Panel didn’t consider this to be important, and the SFT didn’t assess the reliability of the evidence in support of the Rules.

The United Nations, Human Rights Council, and the WMA itself have already expressed concern about this. In September 2018, the Human Rights Special Procedures body of the United Nations wrote to Sebastian Coe, President of World Athletics. Three UN Special Rapporteurs for physical and mental health; torture; and discrimination against women highlight ‘serious concerns’ that the DSD Regulations:

• Contravene human rights standards and norms;
• do not present evidence justifying that they pursue a legitimate aim;
• are not reasonable and objective;
• do not demonstrate proportionality between their aim and effects.

World Athletics’ response was to accuse the UN of not understanding its Rules. ‘It is clear that the author is not across the details of the IAAF regulations nor the facts presented recently at the Court of Arbitration for Sport’, wrote World Athletics in a statement to the BBC, after the UN Human Rights Council reiterated its concerns in March last year. ‘There are many generic and inaccurate statements contained in the motion presented to the UN Human Rights Council so it is difficult to work out where to start’.

In July this year, the Human Rights Council urged UN Member States to prohibit the enforcement of the DSD Rules. Its Report was unequivocal that the DSD Rules represent an infringement of the right for athletes with a DSD to compete. ‘The implementation of female eligibility regulations denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non- discrimination more broadly’, it outlines.

In May last year, the WMA reiterated its advice to physicians not to implement the DSD Rules. “We have strong reservations about the ethical validity of these regulations”, said WMA President Dr. Leonid Eidelman. “They are based on weak evidence from a single study, which is currently being widely debated by the scientific community. They are also contrary to a number of key WMA ethical statements and declarations, and as such we are calling for their immediate withdrawal.”

“Caster’s legal defeat is not a victory for World Athletics, nor does it legitimize the CAS or global sport’s ‘system of justice’”, said Brendan Schwab, Executive Director of the World Players Association (WPA), in a statement. “Despite the World Athletics eligibility regulations being condemned as a violation of the human rights of athletes by authorities as eminent as the United Nations High Commissioner for Human Rights (UNHCHR), Caster’s human rights could not be properly considered at any stage of the process. In the same report the UNHCHR has identified how sport’s justice system systemically denies athletes of their right to an effective remedy where their human rights have been violated.

“World Athletics flagrantly maintains that, as a private body, it has no responsibility to respect Caster’s internationally recognised human rights. It argued that her rights are to be primarily determined in accordance with the Constitution of World Athletics and the Olympic Charter of the International Olympic Committee (IOC), neither of which uphold the human rights of athletes.”

Herein lies the problem. Sport’s closed arbitration system allowed World Athletics to avoid all of these serious issues, raised by major international bodies, and to welcome the SFT’s inability to consider them as a victory.

Thin end of the wedge

Nobody is arguing that World Athletics shouldn’t be able to exclude ‘male’ athletes from certain ‘female’ categories. World Athletics clearly thinks is approach to its DSD Rules is in line with this proposition, otherwise it wouldn’t have spent so much time, effort, and money defending it. If ‘male’ athletes were inclined to compete in female sport, they would dominate it (although there is no evidence that anyone who identifies as a ‘man’ has ever sought to compete in ‘female’ sport).

Given what we know about determination to win and doping, it isn’t unreasonable to assume that unscrupulous coaches would seek out DSD athletes in order to win, as Paula Radcliffe highlighted. World Athletics is right to point to the prevalence of DSD athletes in the Restricted Events as evidence that they may hold an advantage over XX karyotype athletes who have not benefitted from testosterone’s action on their physiology from puberty onwards.

But is such an advantage ‘unfair’? World Athletics thinks so. It is ‘category defeating’, to borrow its grandstand term. But it doesn’t appear to have done any other research as to how ‘unfair’ the advantage is compared to other advantages within the Restricted Events. The playing field is never level in any sporting event. Does height or stride length also confer an advantage in the Restricted Events? 

Nobody is saying that World Athletics shouldn’t be free to exclude ‘male’ athletes from its ‘female’ categories. However, the danger is that by pegging rules on who can compete in its female category to natural testosterone levels, World Athletics risks making people ill. World Athletics is effectively saying to a 46 XY DSD athlete: use medication not designed for your physiology to reduce your natural hormonal levels, otherwise you cannot compete internationally in our restricted events as a female.

In addition, some of the Restricted Events appear to be arbitrary, leading to conjecture that the DSD Rules are designed to target Caster Semenya. World Athletics refused to listen to the CAS when it asked it to consider deferring the application of the Rules to the 1,500m and one mile events, due to lack of evidence. But this didn’t trouble the SFT.

‘Although the CAS has expressed concerns about the inclusion of these two test events in the DSD Rules and indicated that the IAAF might consider deferring the application of this rule to such events, it nevertheless considered that the IAAF had provided evidence for all “covered events”, as well as a rational explanation as to how this category was defined’, reads the SFT Decision. ‘In these circumstances, this result cannot be qualified as contrary to public order’.

The problem is that the pegging of eligibility rules in female categories to natural testosterone levels doesn’t end with events run between 400m and one mile, or with the DSD Rules. The CAS Decision permitted World Athletics to add further events to the Rules in the future. ‘The majority of the Panel observes that it may be that, on implementation and with experience, certain factors, supported by evidence, may be shown to affect the overall proportionality of the DSD Regulations, either by indicating that amendments are required in order to ensure that the Regulations are capable of being applied proportionately, or by providing further support for or against the inclusion of particular events within the category of Restricted Events’, read an Executive Summary of its Decision.

Transgender females are currently not permitted to use testosterone at levels above 10 nmol/L if they are to be permitted to compete in female sport. Now that World Athletics has got its DSD Rules over the line, they also face the possibility that permissible limits will be reduced, potentially making them ill.

This is why nothing has changed with the SFT ruling. Realistically, I don’t think that anybody expected Caster Semenya to prove that the CAS Decision violates Swiss public policy.

What the SFT decision has highlighted, for athletes, is that appealing such issues through sport’s closed arbitration system is pointless. The CAS allowed the IAAF to amend the DSD Rules before, during, and after its hearing. It held that the Rules are discriminatory and despite this, the IAAF was able to ignore its warning about the inclusion of the 1,500m and one mile events due to lack of evidence without repercussion. The SFT held that none of this qualifies as a threat to Swiss public policy. Case closed.

Kristen Worley was only successful in her appeal that International Olympic Committee (IOC) policies had infringed her human rights by taking her case outside of sport’s closed arbitration system. Claudia Pechstein was only partially successful by taking her case to the European Court of Human Rights (ECHR), which forced the CAS to open its hearings to the public. This has not gone well so far. 

It would appear that World Athletics doesn’t want to face similar battles to the Semenya case in the future. ‘The decision of the CAS will be final and binding on all parties, and no right of appeal will lie from that decision’, reads Article 5.5 of the DSD Rules. ‘All parties waive irrevocably any right to any form of appeal, review or recourse by or in any court or judicial authority in respect of such decision, insofar as such waiver may be validly made’. Perhaps World Athletics knows that the CAS provides a sensitive ear.

The SFT decision doesn’t bring us any closer to ascertaining whether it is ethical for World Athletics to require 46 XY DSD females to self medicate their natural biology in order to be eligible for certain international female events. Caster Semenya was brought up as a woman, lives as a woman and is legally recognised as a woman, as the DSD Rules require. The action of testosterone on her XY karyotype has provided her with a distinct advantage, but it is an advantage she has had to work on throughout her life, just as other athletes play to their strengths. Is it right to penalise all DSD women for her success?

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Asser International Sports Law Blog | Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 3: The Curious Non-Application of Training Compensation to Women’s Football – By Rhys Lenarduzzi

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. 3: The Curious Non-Application of Training Compensation to Women’s Football – 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.

 

As recently as September 2020, questions were raised in the European Parliament on the non-application of training compensation to women’s football. Whilst this blog will predominantly consider potential inconsistencies in reasoning for and against training compensation in men’s and women’s football, the questions before the Commission were largely on the theme of disrespect and discrimination. Somewhat unfortunately, the questions raised were side-stepped, with Ms Gabriel (Commissioner for Innovation, Research, Culture, Education and Youth) simply stating that: “The TFEU does not give the Commission the competence to interfere in the internal organisation of an independent international organisation such as FIFA.” This might be true in theory, though one might feel some degree of uneasiness if privy to the Commission’s role in the 2001 FIFA regulatory overhaul.

It is currently explicit in the regulations and the commentary, that in women’s football, signing clubs are not required to compensate training clubs for developing players, through the training compensation mechanism that exists in men’s football. Though it is a contentious comment and as will be expanded below, this may not have always been the case.

At Article 20 of the FIFA Regulations on the Status and Transfer of Players (RSTP), one will find that the principles of training compensation shall not apply to women’s football. Further, in FIFA’s recently released Women’s Football Administrator Handbook (the handbook), it states that disputes relating to training compensation are limited for the moment to male players only.[1]

Regulations on solidarity contributions on the other hand do apply to women’s football, but given transfer fees are not so common, the use of the mechanism is not either. As an indication of how uncommon the activation of the solidarity contribution mechanism in women’s football might be, FIFA reported in the handbook just four claims with the Players’ Status Department in 2016 (three claims involving the same player), and zero since.[2] That is in comparison to hundreds of claims made per season in men’s football, where signing and owing clubs had not fulfilled their obligation to pay the solidarity contribution.

Given the aforementioned, this blog will largely focus on training compensation and how it came to be the case that this mechanism, often presented as critical in the context of men’s football, does not apply in women’s football. To do so, I will first discuss the reasoning advanced in an unpublished CAS award, which one may reasonably suspect played a fundamental role in shaping the current exemption. I will then turn to FIFA’s timely response to the award and the adoption of its Circular No. 1603. Finally, I will point out the disconnect in FIFA’s decision to adopt two radically different approaches to the issue of training compensation in male and female professional football.


1. CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona

This little-known, David vs. Goliath, Court of Arbitration for Sport (CAS) award on appeal of a FIFA Dispute Resolution Chamber (DRC) decision, might be what prompted FIFA to make the relevant changes excluding women’s football from the scope of Article 20 RSTP in 2017. Though not a public case, one might reasonably suspect the decision was the nudge that led FIFA to change the regulations and explicitly state that training compensation does not apply to women’s football, given the timing and the fact that this was ultimately a decision that went counter to the internal decision at the DRC.

A significant consideration for the CAS and one which needed to be made clear by the panel, was the distinction between whether training compensation should apply versus does apply. The CAS deemed its task was not to consider the former, regarding the latter it found the Serbian women’s club reasonably interpreted the then applicable RSTP as covering women’s football, given in other places within the same regulations there is a concerted effort to make no discriminatory distinction between the genders, and, the regulations at this stage did not explicitly state that the mechanism did not apply to women’s football.

Consequently, the award provided that FC Barcelona was to pay 2.5 years at the category 1 rate of EUR 90,000, amounting to EUR 225,000 (plus 5% interest and costs) to WFC Spartak Subotica despite numerous attempts from FC Barcelona’s legal team to aver training compensation does not apply to women’s football.

Some of the ill-received arguments were attempts to raise the question of whether training compensation should exist, largely pointing at the commercial differences and size of the game in women’s and men’s football. The panel would not deal with these questions and instead insisted on considering whether it does exist, per the regulations as they were. FC Barcelona attempted a comparative argument with Futsal where the training compensation mechanism does not apply. This was also dismissed and deemed an improper comparison. Not due to the comparison per se however, but rather the panel concluded the point may well go against the respondent, given:

“the fact that FIFA included an express exception of futsal but no equivalent exception of women’s football is at least some indication that it did not intend to exclude women's football.”[3]

The applicant relied heavily on that which was stated at the “General Provisions’ section of the RSTP (2012), namely “Terms referring to natural persons are applicable to both genders.” The tribunal saw the provision as favourable for the applicant and that the burden was with FC Barcelona to show that the RSTP ought to be interpreted another way, by either providing some additional context, history, intention or similar. The respondent was unable to do so and instead relied heavily on the previous DRC decision in its submissions and did not submit much by way of evidence at all. The panel paid particular attention to the lack of evidence given by the respondent and that this case may have looked differently had FIFA accepted an invitation to join, as FIFA may have been able to shed light on how the regulations ought to be interpreted, had they been able to provide the context and intention that FC Barcelona could not.[4]

Ultimately when it came to FC Barcelona’s submissions and the prior decision of the DRC, the CAS was uncomfortable with “a distinct undercurrent of a policy decision that the RSTP should not apply to women's football”[5] when a rigorous interpretation of the RSTP (2012) as it stood then was what was required. Furthermore, the panel landed at “an overall conclusion that the DRC reasons are flawed at various points and did not sufficiently grapple with the arguments for the Appellant.”[6]

 

2. 2017 amendments and FIFA Circular No. 1603

Though FIFA declined an invite to join the above CAS case,[7] it is in a sense as though the submissions made by FC Barcelona’s legal team were simultaneously on behalf of FIFA, given a heavy reliance on the prior DRC decision and what followed. In what may have appeared a clarificatory exercise at the time, it appears the 2017 amendments announced via FIFA Circular No. 1603 were at least in part a response to the above CAS case.

Within that circular, FIFA announced that the regulations “now explicitly specifies that the principles of training compensation do not apply to women's football.” It made a point that the express amendments pertaining to training compensation now reflect existing DRC jurisprudence and “clarify the always intended meaning”. Whilst that clarity is direct, it may also contain an undertone of frustration in relation to the above CAS case. FIFA were undoubtedly addressing what it perceived as a problem, though it is the following from Circular No. 1603 that might raise more questions than offer solutions: “It should be noted that the existing training compensation formula would act as a deterrent to the movement of female players and consequently stall the development of the women's game.” Sound familiar? This will be expanded upon below.

Finally on training compensation and women’s football and before addressing other issues therein, Circular No. 1603 states that “FIFA administration is working on a specific concept to be applied to the women's game in consultation with the stakeholders, bearing in mind the overall objective to promote and enhance the development of women's (professional) football.” Whilst this is for another blog and for another day, one can reasonably wonder what has been done. Or might it be the case that refraining from more regulation has resulted in more growth in the women’s game?

Noteworthy in hindsight, given the CAS case is and was not public, is that FIFA did not have the pressure it may have otherwise had to explain its regulatory amendments regarding training compensation in women’s football, that were contrary to the CAS decision. Whilst the CAS left the door open for sound arguments to be made against training compensation in women’s football, they found serious flaws in the arguments made by FC Barcelona, as well the reasons given by the DRC in the initial decision. Most notable on this front might be an out-and-out rejection of a comparison with futsal, as well rejecting a general distinction between the men’s and women’s game as being useful.  Despite this, it appears FIFA proceeded to explicitly enshrine in the RSTP that training compensation does not apply, without dealing with the fundamental questions raised but not necessarily answered in the CAS case. It is just interesting to note, that the CAS award that was challenging FIFA’s rationale was coincidentally kept confidential. This might speak for greater (and systematic) transparency with regard to the CAS’ appeal awards.


3. The Incoherence of a Double Standard Between Men’s and Women’s Football

It is certainly true, in a very general sense, that women’s and men’s football are in a different place commercially inter alia. However, as mentioned in my introductory blog, men’s football has since the late 1800s in the form of the ‘retain and transfer’ system, and now with the current mechanisms, had systems that were claimed to be imperative to incentivise training by compensating clubs for developing players (not to mention the growth and survival of the game). So why is the same rationale not applied to women’s football? Might it be reasonable to conclude that women’s football in its current stage of economic development is at an equivalent stage to where men’s football was at some point between then and now, where a system for compensating training clubs and incentivising clubs to develop youth did exist?

In any case, the rationale appears flawed, as comparing men and women’s football in the general sense is not a useful exercise. Just a brief analysis of the gap between the richest and poorest clubs in men’s football exposes it so. Other than the fact both entities are football clubs, what is the same about Real Madrid of Spain and Rèal Comboni of the Central African Republic? What are we to make of a comparison of Olympique Lyonnais Féminin (the most successful women’s football team in history and a commercially successful club and story), and Liberty Professionals F.C. men’s team of the Ghana Premier League (who do not always fill their 2,000 seat stadium)?

At paragraph II. 19 of the prior DRC decision to the above CAS case “the DRC deemed necessary to stress that the award of training compensation for the transfer of female players could possibly even hinder the further development of women’s football and render the previous efforts to have been made in vain”. A near identical claim to that made in the aforementioned FIFA Circular. This may be the case, but isn’t this just an extension of the “hindrance effect” I referred to in my previous blog regarding African players? Though not the exact same flavour of hindrance, as in the case of the African player I was largely referring to the mechanism hindering an individual from being able to transfer freely. In this instance the hindrance might be more macro in that, a growing women’s club may be set back if forced to pay compensation to the training clubs of the players they sign and in turn the women’s game suffers. In any case, the notion that training compensation might act as a deterrent or hindrance being exclusive to women’s football is absurd in theory, and even more so in my experience in practice.

The commercial differences are widely stated and perhaps overstated as reasons why signing clubs ought not or could not pay training compensation in women’s football. Whilst such a claim may at least contain a grain of truth, the commonly used argument overlooks the fact that the cost of developing and training players at grassroots level, that which is the subject of compensation, is often similar within nations and certainly across the genders. In the above CAS case, the only witness and the president of both Spartak Subotica men’s and women’s clubs, Mr Zoran Arcic, stated that the costs were almost identical for men and women and that they were paid approximately the same amounts of monthly salaries or scholarships.[8]

It has been argued that Futsal is comparable in its development with women’s football commercially, and that is why the principles of training compensation apply to neither. At paragraph II.16 of the DRC case prior to the appeal at CAS, it was averred that "the grade of professionalism reached in futsal also lies far behind the one of eleven-a-side men’s football insofar, according to the DRC, the situation may be considered as comparable to the one of the women’s game.” However it has been reported that some futsal players are signing contracts in excess of EUR1 million. How then could one conclude that training compensation regulations should apply to a small men’s club in South America or Africa, or any confederation for that matter, with entire budgets much smaller than individual players’ salaries in futsal or women’s football, when the evidence suggests the commerciality of futsal and the women’s game in size and opportunity trumps many men’s football entities.

In 2019, FIFA initiated a Club Solidarity Fund for the Women’s World Cup, which compensates or rewards clubs that trained and developed players from the age of 12 who participated in the World Cup.[9]  What is one to draw from this positive though peculiar commitment? Are only training clubs that had the fortune of one of their players going on to a world cup, worthy of being compensated? This appears inconsistent with far reaching societal effects training compensation was said to have and why it was deemed justified in the relevant cases, commentary and media. Might it be the clubs that are not able to produce players of a high enough quality to go to a World Cups that need the funding? Further, this fund will not trigger the same alleged incentives to train players that the training compensation mechanism apparently has.

An array of arguments and justifications made for a system that hinders free movement to a considerable degree, though incentivises training, was embraced in the Bernard[10] ruling of the Court of Justice of the EU. So how come women’s football should fall outside of this widely acknowledge necessity to encourage training according to FIFA? Nowhere in Bernard can one find a specific reference to men only when the importance of encouraging training is explored at length. Elsewhere in EU policy documents one finds instead the explicit recognition that “investment in and promotion of training of young talented sportsmen and sportswomen in proper conditions is crucial for a sustainable development of sport at all levels”.[11] Until the CAS award discussed above, FIFA had appeared to argue that such investment only eventuates if a training compensation system is introduced. Hence, this strange double standard between men and women’s football might deserve a much more elaborate explanation than the one put forward by FIFA.[12]


4. Conclusions

If it is the case that training women is the same or similar in cost as training men, and it is that actual cost that the training compensation mechanism is geared towards incentivising clubs to spend on youth and then be compensated for, then one might have difficulty in concluding the principles of training compensation should apply to one and not the other. If it is the case that there is vulnerability of women’s clubs and in turn of the women’s game if they had to pay training compensation, and there exists a myriad of men’s clubs in the same economic predicament, might that say something about the appropriateness of the mechanism more broadly?  Ought a player’s free movement be prioritised simultaneously with the financial viability of mid to low wealth clubs, which raises questions about the suitability of the mechanism across the genders, yet is significantly amplified by its apparent inappropriateness for women's football. 

The identification of the various flaws in the justifications for the regulations is to say nothing of whether the systems ought to exist. Rather, it is to highlight that two sets of contradictory rules are operating within the FIFA regulations and the arguments for the current state of affairs are philosophically and economically flawed.

It appears that the women’s football community has bought into this notion around transfer fees, etc. What is culturally happening then is that clubs are more likely to let a woman follow her dreams and not stand in the way in the form of demanding transfer fees (and cannot in the form of training compensation), as the concept of fees is a relatively foreign one in comparison to the men’s game. This can at first glance appear unfortunate that women’s clubs are not being compensated, but it could just as plausibly be uncovering that the important principles of free movement ought to trump a flawed redistributive system, and that in fact a system of redistribution in football could (and maybe should) be entirely divorced from the transfer system and the movement of players.


[1] FIFA Women’s Football Administrator Handbook 2020, 125.

[2] Ibid, 118.

[3] CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona at 54.

[4] Ibid at 49.

[5] Ibid at 55.

[6] Ibid at 55.

[7] Ibid at 104.

[8] CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona at 73.

[9] Women’s Football Administrator Handbook 2020, 151.

[10] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, ECLI: EU: C:2010:143

[11] Commission’s White Paper on Sport of 11 July 2007,6.

[12] Consider also at Annex IV to the Conclusions of the French Presidency from the European Council meeting in Nice, where it was said the “training policies for young sportsmen and women are the life blood of sport, national teams and top-level involvement in sport and must be encouraged”

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