Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 14 July 2016, the Belgian competition authority refused to grant provisional measures to the White Star Woluwe Football Club (“The White Star”), which would have allowed it to compete in the Belgian top football division. The club was refused a licence to compete in the above mentioned competition first by the Licences Commission of the national football federation (“Union Royale Belge des Sociétés de Foootball Association” or “URBSFA”) and then by the Belgian court of arbitration for sports (“Cour Belge d’Arbitrage pour le Sport” or “CBAS”). The White Star lodged a complaint to the national competition authority (“NCA”) and requested provisional measures. The Belgian competition authority rendered a much-overlooked decision (besides one commentary) in which it seems to accept the reviewability of an arbitral award’s conformity with EU competition law (articles 101 and 102 TFEU). 

1. Licencing mechanism in football and EU competition law

In April 2016, the White Star won the 2015-2016 Belgian’s football second division championship (until then known as the “Proximus League”, but as of the 2016-2017 season renamed “Division 1B” or “D1 B”) and, as such, was, on sporting grounds, expected to accede to the top division (“Division 1A” or “D1 A”, but previously called “Jupiler ProLeague”).

However, in order to be allowed to compete in the D1 A championship (as well as for the D1 B), all professional football clubs have to obtain a licence under the URBSFA’s regulation (“federal regulation”). This licence is granted if the club complies with of the following criteria:

• Article 406 provides for the so-called ‘continuity obligation’ which, in a nutshell, aims at ensuring the financial stability of the club for the entire season to come.

• Article 407 draws up a list of general conditions by which all professional clubs have to comply with.

• Articles 408 and 410 provide for specific conditions for either D1 A and D1 B clubs.

On 12 April 2016, the URBSFA Licences Commission (“Commission des Licences”) refused to grant the D1 A or the D1 B licences to the White Star to the effect that the club did not comply with the general conditions provided in article 407. According to the Licenses Commission, the club suffers from chronical financial problems (including unpaid debts) and it had no guarantees of having access to its stadium for the upcoming season as no agreement had been reached at the time with the municipality. The White Star appealed the decision to the CBAS, which rendered its arbitral award on 6 May (award published on 13 May). The arbitral tribunal annulled the first decision of the Licences Commission, insofar as at the time of the hearing the White Star provided further evidence that it complied with the general conditions. However, the CBAS finally decided not to grant the licence, because the club’s financial stability was not ensured and, as a consequence, it did not comply with the ‘continuity obligation’ provided in article 406. The arbitral tribunal highlights the club’s chaotic financial situation in its award[1] and concluded that the club could not be granted either a D1 A or D1 B licences. Consequently, the club should be relegated to the third division and be subject to amateur status.

The White Star sought provisional measures before the NCA in order to be granted a professional licence and participate in the D1 A 2016-2017 championship. To grant an interim measure, the NCA has to make a prima facie assessment of the alleged infraction which, in this case, relates to the licencing system. The question is whether a refusal to grant a licence to a football club, which would allow it to participate in the first division infringes competition law. Without prejudice to the final decision, the NCA recalled that the licence system at stake had already been assessed and found compatible with EU competition law provisions in previous decisions.[2] Furthermore, the NCA indirectly assessed[3] the modification of the system that was decided in 2015 by the Belgian federation, which provides for stronger control over financial conditions and continuity obligations. It is widely acknowledged that a licencing system has a restrictive effect because it limits access to football competitions. Without said licence, a club cannot enter the relevant market. However, those effects were found to be inherent to the organisation of sport competitions (Meca Medina, C-519/04, 18/07/2006) and proportionate to its objective, i.e. to make sure that all clubs are able to sustain their participation in the competition, as a financial default of one club during the season would threaten the position of the competition and of the others clubs. Subsequently, the Belgian competition authority decided that it was not established prima facie that there was a breach of competition law provisions either with regard to the ‘continuity obligation’ or its application. 

The surprising aspect of the decision is that the NCA envisaged an alternative and less restrictive measure by integrating the White Star into the second division without it being requested by the club in its complaint. Both D1 A and D1 B licences were refused because after the 2015 modification of the regulation, the criteria for both divisions converged in order to professionalize the second division. This means that if the D1 A licence is refused, the probability is relatively high that the other licence (D1 B) will be refused as well and that the club will be relegated to the third division. The NCA concluded that this arrangement was inherent to the modification of the regulation and that it was not, prima facie, a disproportionate restriction. The decision also stated that the balance between the White Star’s interests and those of other clubs would be compromised if no breach is found in the final decision.[4] 

2. Sports arbitral awards and EU competition law, an uneasy relationship

The most interesting part of the decision is on the interaction between EU competition law and sports arbitration. The Belgian football federation’s regulation provides for the exclusive competence of the CBAS to appeal the Licences Commission’s decision (article 421). The arbitration tribunal then has the duty to conduct a further factual and legal examination of the case. The award is still amenable to an action for annulment in front of the First Instance Tribunal (“Tribunal de Première Instance”). The possible grounds are listed exhaustively in article 1717§2 of the Belgian Judicial Code (“Code Judiciaire Belge”). This procedure is not unknown in sports law and is rather similar to the system in force at the Court of Arbitration for Sport (“CAS”) in appeal procedures following a sports federation’s decision where the regulation of the body concerned expressly provides for it. Judicial review of the CAS award is also available before the Swiss Federal Tribunal on a very limited number of grounds. 

Challenges to arbitral awards concerning sports matters on EU competition law grounds is not a novelty either. In the past, the European Commission (“Commission”) and the Court of Justice of the European Union (“CJEU”) received complaints on EU competition law grounds involving arbitral awards rendered by the CAS. All these cases have one thing in common: both the Commission and the CJEU decisions did not refer directly to the arbitral award and went on instead to examine whether the rules of the sport governing body (“SGB”) on which the awards were grounded were compatible with EU competition law provisions. Already with the Meca Medina case the CJEU limited its assessment to FINA (International Swimming Federation) anti-doping regulations. The same approach was used by the Commission in the ENIC case referring to the UEFA rule on multiple ownership of football clubs (COMP/37 806 ENIC Plc/UEFA, 25/06/2002) and the Cañas case regarding the ATP anti-doping code (COMP/39471, Certain joueurs de tennis professionnels v. Agence mondiale antidopage, ATP et CIAS, 12/10/2009). In those three cases, the SGB’s rules were found compatible with EU competition law provisions as long as they are proportionate to their objective, which was deemed the case in such instances. However, if the rule at stake had been found in breach of articles 101 or 102 TFEU, the award would be contrary to EU competition law as well.

The Court and the Commission are reluctant to give way to challenges against arbitral awards based on competition law provisions.[5] In Meca Medina, the Commission and the Court both criticized the applicants’ choice to submit a complaint based on EU competition law while they did not appeal the CAS award in front of the Swiss Federal Tribunal.[6] In Cañas, the Commission endorsed CAS as a legitimate independent institution whose role as a sport arbitral institution is comparable to that of national courts.[7] It is particularly striking that the Commission is reluctant to be seen as an alternative appeal mechanism against CAS awards[8], and here probably lies the explanation as to why it restricts its assessment to the SGB’s rule and leaves the arbitral award aside.

3. The White Star decision, a new twist in the debate

The Belgian competition authority faces the same type of challenge in the White Star case in which the arbitral award was an appeal of the Belgian football federation’s decision based on the federal regulation providing for a licence mechanism and, as a consequence, restricting the access for the club to the market of top division football matches. Had the NCA followed the Commission and the CJEU practice, it would have ignored the award and directly assessed the SGB’s rule under EU competition law. 

Yet, the Belgian competition authority did not leave the award aside. To apply EU competition law provisions to that case, the NCA did not have any difficulty in considering that the football federation is an association of undertakings (nothing new and revolutionary here), and quickly concluded that the CBAS is neither an undertaking nor an association of undertakings following the Commission assessment in Cañas[9]. However, and the innovative aspect of the decision lies here, it considers that the interpretation of the URBSFA regulation enacted by the football federation, an association of undertakings and as such bound by competition law provisions, may be a restrictive practice even though the CBAS is not in itself subject to competition law.[10] The licensing requirements provided by the federal regulation are subject to competition law scrutiny because the URBSFA is an association of undertakings. The arbitral award annulled and replaced the URBSFA Licences Commission’s decision[11], as the CBAS has unlimited jurisdiction to review the case on appeal. As a consequence, the only decision still existing is the arbitral award. Therefore, it seems that the Belgian competition authority considers that the effect of the award is to implement the URBSFA’s regulation which means that the arbitral award is ‘detached’ from the arbitral tribunal and deemed attributable to the football association and, as a consequence, may potentially constitute a restrictive practice[12]. The new and important aspect of the decision being that the NCA will then review both the URBSFA regulations and its interpretation by the CBAS in its arbitral award, meaning that the Belgian competition authority will also assess the arbitral award. 

An explanation for this innovative argumentation is probably the fact that this case is a request for interim measures related to an individual decision, i.e. the arbitral award. The Belgian NCA, contrary to the established practice of EU institutions in similar cases, did not deal with it as an indirect challenge to the award via the URBSFA regulation. The NCA justifies its reasoning by saying that it must protect the effectiveness (“effet utile”) of later decisions on the merits of the case.[13] It therefore recalls that its role is to enforce competition law provisions which are a matter of public policy based on the CJEU’s Eco Swiss (C-126/97) decision. This case concerns an action for annulment in commercial arbitration, but its findings can be extended to sports arbitration. Following the Eco Swiss jurisprudence, the responsibility for reviewing compliance with European public policy rules lies with the national courts of the Member States and not with the arbitrators. This means that it is for the judges to decide whether an arbitral award is in conformity with EU competition law and set it aside if it breaches these provisions. 

The Belgian competition authority extended that jurisprudence to its own assessment of the compatibility of the URBSFA regulation with EU competition law.[14] Hence, if it had considered the regulation in breach of EU competition law, the award itself would have been found contrary to the same provisions and set aside. This means that, in the end, the NCA would have the ability to set aside the arbitral award without the interference of a (national) court in the meaning of the Eco Swiss judgment. Indeed, if the SGB’s rules are contrary to articles 101 or 102 TFEU, then the award is too.[15] The NCA decision will, consequently, lead to the annulment of the arbitral decision which, in turn, will not be enforced. This is also important in the light of the Belgian competition authority decision that is, while attributing the award to the SGB, also allowing a control on the interpretation of the licensing rules by the CBAS.

Nonetheless, the Belgian competition agrees with the CJEU and the Commission regarding the competition law arguments raised against the arbitral procedure. The White Star challenged the ‘forced’ appeal procedure in front of the CBAS provided by the federal regulation as well as the independence and impartiality of the CBAS on competition law grounds. The CBAS invoked the findings in the recent Pechstein case (Bundesgerichtshof, KZR 6/15, 07/06/2016), very similar to the one at stake, to argue that the procedural characteristics in sports arbitration had already been found compatible with EU competition law. At the EU level, the Commission already considered that a forced arbitration clause would only constitute a breach of EU competition law if it supports a restrictive practice, but not on its own (see Cañas, p. 41). The Belgian competition authority, in turn, considers that there is not a prima facie competition law breach because of the possibility to appeal the arbitral award to the Tribunal of First Instance, a national court.[16] The argumentation on this point is limited. However, one should remember that this is an interim measure decision and the NCA is only checking prima facie restrictions. 

Finally, the Belgian competition authority did not quite reply to the CBAS argument stating that preliminary measures would endanger the uniformity and organisation of sports arbitration if granted in that case. It recalled that in a previous case of interim relief regarding a CBAS sentence, a judge declared of its own motion that it had no jurisdiction to hear the case (Première instance du Hainaut, Division de Mons, 09/05/2016), but the Tribunal of First Instance did have jurisdiction by law. The question is whether the NCA created a third alternative of recourses against arbitral awards in addition to the one in front of the First Instance Tribunal. The NCA made sure to state that it is not an appeal body[17] and, as such, its only preoccupation is to scrutinize that competition law provisions are applied. Therefore, the NCA did not create an alternative way of appeal, but the attribution of an arbitral award to a sport federation is a notable move. The CBAS argues in its conclusions[18] that the judge in the proceeding detailed in article 1717 of the Belgian Code of Justice is as competent as the NCA to hear EU competition law arguments in the case of an appeal (where the Eco Swiss judgement applies). 

The CBAS argument is not entirely convincing. If this decision appears to be as important, it is because the NCA will, in most cases, have a greater capacity than a judge to decide if there is a competition law breach. On another hand, a question is raised about the extent of the control of the judge over public policy arguments in the case of a legal action against the enforcement of an arbitral award. For example, the French Cour de Cassation requires a control limited to a manifest error of assessment (Cour de Cassation, Chambre civile 1, of 13 October 1981, 80-11.098, Publié au bulletin). Indeed, in the Belgian case the NCA will exercise a more stringent control than just the identification of a flagrant infringement of competition law provisions. To add to the debate, in a recent case[19] Advocate General Whatelet defended a stronger control of the judge over the compatibility of arbitral awards with EU competition law.[20] The CJEU did not endorse this position but did not reject it either. The question whether arbitral awards and the rules they are based on will become subject to greater scrutiny under articles 101 and 102 TFEU is still pending. 

Consequently, the Belgian competition authority extended the EU competition law control over sports arbitration to cover the specific interpretation of the SGB’s regulations by an arbitral tribunal. As a consequence, and if this reasoning is confirmed, lawyers might be able to challenge an arbitral award directly with the national competition authorities if it appears to interpret the SGB’s regulations in contradiction with EU competition law.

It should be noted that this procedure is only about provisional measures, but the legal reasoning used by the Belgian competition authority shakes the already shaky grounds of sports arbitration. After the Pechstein and SV Wihelmshaven cases in German courts, sports arbitration is anew put to the test based on EU law considerations. The Belgium decision went unnoticed because it is in French and the regulations at stake were not deemed contrary to competition law. However, if more national competition authorities follow a similar reasoning, more challenges of arbitral awards in sport matters will necessarily arise. The question that remains open is whether the Commission itself will welcome such a change or not.

[1] « Force est de constater qu’il s’agit là d’un ensemble de faits précis, graves et concordants qui remettent fondamentalement en cause l’affirmation selon laquelle la continuité du club peut être assurée pour la saison 2016-2017 », Cour Belge d’Arbitrage pour le Sport, 13/05/2016, p.23.

[2] See for example decision 2004-E/A-25, 04/03/2004.

[3] The NCA organises an informal procedure with the ProLeague, the Belgian professional football teams’ association, to monitor the sale of the media rights from 2005. In this framework the NCA had to examine the modification of the football federation’s regulation in 2015. See, for further explanation, Autorité Belge de la Concurrence, 14/07/2016 points 22-62, p. 65-69.

[4] « … la balance des intérêts de la Requérante et des autres clubs risque d’être compromise au cas où une infraction ne serait pas établie », Autorité Belge de la Concurrence, 14/07/2016 point 81, p. 177.

[5] For an in-depth analysis, see Antoine Duval, “The Court of arbitration for sport and EU Law: Chronicle of Encounter”, (2015) 22, Maastrich Journal of European and Comparative Law, 2, p. 224-255.

[6] Supra, p. 251.

[7] Supra, p. 252.

[8] Supra, p. 253.

[9] « (…) Le rôle du TAS est comparable à celui d’un tribunal. Il rend des décisions arbitrales qui ont généralement la même force que des jugements de juridictions de droit commun. L’exercice de ces activités de jugement, ainsi que l’administration et le financement de ces activités par le CIAS, ne peuvent être considérés comme constituant une activité économique (…) Par conséquent, il semble difficile de qualifier le CIAS (ou le TAS) (…) d’entreprises ou d’associations d’entreprises au sens de l’article 81 et/ou 82 du traité CE. », COMP/39471, Certain joueurs de tennis professionnels v. Agence mondiale antidopage, ATP et CIAS, 12/10/2009, point 23.

[10] « […] Le Collège ne considère dès lors pas manifestement déraisonnable de penser que l’Autorité puisse constater qu’une interprétation d’un règlement qui entre dans le champ d’application des règles de concurrence, constitue une pratique restrictive même sans qu’elle ne soit sanctionnable dans le chef de l’instance qui l’a interprété […] », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[11] « Met à néant la décision prononcée par la Commission des Licences de l’ASBL URBSFA… », Cour Belge d’Arbitrage pour le Sport, 13/05/2016, p. 32.

[12] See supra 10 and « (…) [Le Collège] peut dès lors apprécier dans le cadre de cette procédure en matière de mesures provisoires, prima facie, la conformité avec le droit de la concurrence du Règlement fédéral et de son application et effets dans la mesure où le refus de licence continue à produire ses effets, même si la décision de la commission de l’URBSFA est formellement remplacée par la sentence arbitrale de la CBAS. », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[13] « […] de protéger dans le cadre de cette procédure en matière de mesures provisoires l’effet utile de la décision à prendre dans le cadre de la procédure de fond. […] », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[14] « Le Collège fait remarquer qu’une autorité de concurrence est chargée de la mise en œuvre de règles d’ordre public. […] », Autorité Belge de la Concurrence, 14/07/2016 point 52, p. 172.

[15] See Duval, p. 251.

[16] Autorité Belge de la Concurrence, 14/07/2016 point 62, p. 174.

[17] « Elle n’est pas une instance d’appel pour entendre des recours contre une décision attaquée », Supra, point 52, p. 172.

[18] Autorité Belge de la Concurrence, 14/07/2016 point 119, p. 146.

[19] Opinion of Advocate General Wathelet, 17/03/2016, Case C‑567/14, Genentech Inc.v Hoechst GmbH, formerly Hoechst AG, Sanofi-Aventis Deutschland GmbH and CJEU, 07/07/2016.

[20] Supra, point 71 “For these reasons, the review by a court of a Member State of whether international arbitral awards are contrary to European public policy rules cannot be conditioned by whether or not this question was raised or debated during the arbitration proceedings, nor can it be limited by the prohibition under national law preventing the substance of the award in issue from being reconsidered.”

The rise of Dutee Chand, India’s 100 and 200-meter champion in the under 18-category, was astonishing. Her achievements were more than promising: after only two years, she broke the 100m and 200m national junior records, competed in the 100m final at the World Youth Athletics Championships in Donetsk and collected two gold medals in the Asian Junior Championships in Chinese Taipei. But, in July 2014, this steady rise was abruptly halted. Following a request from the Athletics Federation of India (AFI), the Sports Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee was detected with female hyperandrogenism, i.e a condition where the female body produces high levels of testosterone. As a result, a few days before the Commonwealth Games in Glasgow, the AFI declared Dutee ineligible to compete under the IAAF Regulations and prevented her from competing in future national and international events in the female category. Pursuant to the IAAF ‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition only if she lowers her testosterone level beneath the male range by means of medical or surgical treatment.[1] On 25 September 2014, Dutee filed an appeal before the CAS, seeking to overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism regulations null and void. She is defending her right to compete the way she actually is: a woman with high levels of testosterone. Interestingly enough, albeit a respondent, AFI supports her case.

IAAF and IOC rules set limits to female hyperandrogenism, which is deemed an unfair advantage that erodes female sports integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time that they will be debated in court. This appeal could have far-reaching ramifications for the sports world. It does not only seek to pave the way for a better ‘deal’ for female athletes with hyperandrogenism, who are coerced into hormonal treatment and even surgeries to ‘normalise’ themselves as women[2], but it rather brings the CAS, for the first time, before the thorny question:

How to strike a right balance between the core principle of ‘fair play’ and norms of non-discrimination, in cases where a determination of who qualifies as a ‘woman’ for the purposes of sport has to be made? 

‘Prove your gender!’

The separation between women and men in athletic competitions has been paradigmatic. Considering the sex-based physiological differences, which in case of a mixed competition would lead to virtually no women participation, the separation opened the door for women to compete at the highest levels. Nevertheless, the determination on the eligibility of women athletes to participate in the female category has become a source of controversies. So far, as decades of flawed IOC policies have demonstrated, it has not been clarified ‘who is woman’ for the purposes of sport.

The idea of ‘sex testing’ in sports dates back to 1960s and even preceded doping tests. The first gender test introduced by the IOC is nowadays laughable: nude parades of female competitors before a panel of judges in charge to verify the presence of female genitals and other sex characteristics.[3] Soon, this test was proven unworkable, since in intersex conditions, where people are born with both male and female genitalia, the outside did not match the inside.

The next test introduced was dubbed ‘chromosome testing’, which was based on the assumption that chromosomes are the key factor in determining sex, i.e. XY for male and XX for female. However, this test overlooked natural situations, where males have an extra X chromosome or females are missing one and was, therefore, soon abandoned. Thereafter, the SRY (i.e. the gene that triggers male sex determination) gene detection test was introduced, but the Olympics Games in Atlanta 1996 proved its deficiency:  eight women were tested positive for it and all were finally cleared for competition. Following this series of gender policies, which were deemed particularly discriminatory towards women with sexual development disorders, the IOC removed gender verification tests in June 1999.

It was not before 2009, in the wake of the Caster Semenya case, involving the South African 800m and 1500m runner and world champion, that an urgent need for reconsidering sex determination policies was brought into surface. Semenya’s masculine appearance, unusual muscle build and, foremost, her outstanding victory in the 2009 World Championships 800m race, fuelled a frenzy of suspicions on her gender. Following her victory, in an unprecedented breach of confidentiality and privacy rules, the IAAF leaked that Semenya had undergone tests to determine whether she had an unfair advantage as compared with other women. For three years, Semenya was not allowed to participate in events as her gender was still under investigation. In 2012, she was cleared by the gender testing committee and she began racing again. The story of Semenya, who suffered from humiliation and castigation by athletics officials and the media, unveiled IAAF’s incompetency in handling complex gender-related issues.

As a reply, in an attempt to establish an unambiguous, objective and scientifically based policy, IAAF and IOC, in 2011 and 2012 respectively, released new regulations. In that context, the focus shifted from sex testing to endogenous testosterone testing. The natural levels of testosterone have become the new golden rule: the purpose is not to determine ‘who is woman’, but rather ‘what makes a woman a woman’. Both policies are based on the assumption that testosterone is a key factor for men’s often superior strength and speed and, as a result, women with testosterone levels typical for males have an ‘unfair’ advantage. Therefore, according to the new regulations, if a female athlete has androgen levels higher than the normal male range, she is deemed ineligible to compete in women’s competition and will only be considered able to compete again if she lowers her testosterone level by means of medical or surgical treatment.

Despite IAAF’s protest to the contrary, this is the recent re-incarnation of ‘sex testing’.[4] The real import of these rules has been illustrated by the Dutee’s case. With Dutee’s appeal pending before the CAS, the legality of IAAF and IOC’s current gender policy needs to be scrutinized.

The unfair results of ‘fairness in sports’: The dark side of IAAF’s and IOC’s gender policy

Fair competition, which provides a fair opportunity to compete and prohibits athletes from competing with unfair advantages, has been widely accepted as a value integral to sports.[5] In this light, considering hyperandrogenism as an uncommon athletic capacity in relation to other female competitors, IAAF and IOC introduced the ineligibility of female athletes with hyperandrogenism in order to preserve the ‘sacrosanct’ competitive equality in the female category. However, it is our opinion that the current policy is on the borderline of what is fair for the following reasons: 

1. The ‘testosterone’ criterion as yardstick to determine eligibility?

According to the IAAF androgen policy, a general scientific consensus on naturally occurring testosterone as a relevant physical characteristic to separate athletes into different competition classes exists. The first problem is that this argument relies on the flawed assumption that a bright line between male and female can be drawn, not acknowledging situations of an ‘intersex’ status. As David Epstein, reporter and author of “The Sports Gene”, puts it clearly “neither body parts nor for the chromosome within them unequivocally differentiate male from female athletes”. Furthermore, while IAAF relies on a binary perception of biological sex in order to identify the gender of athletes, gender, in fact, is a social construction, which does not correspond to the complexities of biological sex. Secondly, it relies on the assumption that testosterone levels in the human body have limited variability within the sexes. Nevertheless, recent studies have found a complete overlap between testosterone levels in elite men and women, ripping apart testosterone levels as a reliable factor for separating between sexes.  The third problem is the lack of supporting scientific evidence that a competitive advantage can derive from high natural levels of testosterone.[6] Indeed, the scientific understanding of testosterone receptors is far from comprehensive. A recent research supported by the Swiss WADA laboratory added to the uncertainty: “Unfortunately, and to the best of our knowledge, there are neither available data on serum androgen levels nor reliable statistics on the so-called hyperandrogenism among a large and high-level female athletes’ population”.

IAAF policy, in overall, seems to create an absurd result: instead of introducing an objective criterion-if any- for separating between men and women, it rather suggests a classification of athletes between ‘high testosterone’ and ‘low testosterone’. However, ‘High-T’ and ‘Low-T’ categories of competition are not on the agenda.  

2. IAAF policy fosters discrimination

The current policy suggests a discriminatory treatment: it targets only women suspected for hyperandrogenism due to their physical appearance and high levels of performance. Women are asked to prove that they are female, while there is no such a requirement or restriction for men.

Furthermore, the fundament itself of the androgen policy is discriminatory against women who do not conform to traditional notions of femininity. Indeed, it lays on the physiological superiority of men in terms of endurance and strength as compared to women, perpetuating the long-established perception that an intrinsic link between manliness and sport exists, while femininity is associated with more gentle exercise.[7] In IAAF’s view, ‘too masculine women’ do not belong to the female category. It seems that under a scientifically based guise, IAAF seeks to impose a preference for certain social norms regarding what constitutes femininity in a woman’s appearance as criteria for participation.[8]

However, in order to perceive the level of discrimination, the most important question to be addressed is how you qualify an athlete. Hyperandrogenism is a rare biological characteristic and according to IAAF regulations and controversial scientific evidence, it gives female athletes a natural advantage that other female athletes do not have. Similarly, long limbs, broad wingspan for swimmers and height for basketball players are natural advantages.[9] Nevertheless, the later ones, but for hyperandrogenism, have never been considered as unfair. Indeed, the quintessence of elite sports lays on the participation of individuals with rare biological characteristics. In this light, the inevitable question arises: Why should female athletes like Dutee be obliged to reduce or eliminate an inherent advantage that they are born with? Why is then nobody asking a swimmer like Phelps to operate his double-jointed ankles? Or as SAI director-general Juji Thomson remarked: “ Just because Usain Bolt's height is to his advantage will the international authorities want his legs chopped off to ensure a level-playing field?” In other words, why hyperandrogenism has been viewed as different to other biological advantages broadly accepted in some elite athletes? The answer is simple: IAAF’s policy reflects the well-established public perception of femininity and female athletes who do not conform to this norm have to be excluded or ‘feminise’ themselves.

Thereby, IAAF and IOC policy exacerbate bullying and marginalization of women in sports putting their physical difference under unethical and humiliating scrutiny. Semenya had been intruded into the toilets by competitors seeking to check whether she really was a girl. While, after a race in Berlin, her competitor Mariya Savinova sneered “just look at her” when she was asked whether Semenya was a man. Similarly, the most talented female athletes, such as Serena Williams, Martina Navratilova, WNBA player Brittney Griner– and the catalogue is really long-, have been accused of not really being female. This play is up again with IAAF’s ‘are you woman enough to compete as female?’ policy seeking to confer legality to discrimination.

What should not be overlooked, finally, is the bitter truth that the current IAAF policy inevitably targets in priority women from developing countries. Athletes like Semenya or Dutee never perceived their difference, until they appeared on track field courts, where this difference has been flagged in the most humiliating way as abnormality. In sharp contrast to IOC’s declarations on eliminating any kind of discrimination in sports, IAAF and IOC gender policy achieves the most undesirable result: sex and social discrimination ‘all-in-one’. 

3. The disproportionate results of IAAF’s policy: To undergo treatment or not? This is not a question!

Female athletes with hyperandrogenism are faced with two choices: undergo medical treatment to fit the IAAF ‘Procrustean bed’ or abandon female competitions. The disproportionate and unfair consequences are evident.

As Katrina Karkazis, pioneer of Dutee’s motion against IAAF, remarks, the IAAF and IOC treat a physical difference as an illness, which requires a medical response. However, the necessity of such an invasive medical, or surgical, intervention is highly questionable. The suggested treatment does not stop at lowering female athletes’ testosterone level below IAAF’s limit of 10nmol/liter, but it rather aims to eliminate hyperandrogenism. In this sense, sharing IAAF’s assumption that testosterone is the key to performance, such treatment will render athletes like Dutee less competitive than other women who do not have hyperandrogenism or whose hyperandrogenism is below the cut-off. Thereby, IAAF policy, albeit mandating fairness in competition, puts a disproportionate burden on female athletes with hyperandrogenism.

Furthermore, concerns have been raised about the medical effects of the treatment suggested. In fact, it has been argued that long-term hormone therapy can have devastating results on female athletes’ health. Dutee’s denial to undergo this treatment is far from a ‘caprice’. A study published in 2013 revealed the cases of four female athletes identified as having hyperandrogenism, who were sent to a clinic in France. It was reported that those athletes also had medical procedures that had nothing to do with lowering their testosterone levels for sports: a reduction to the size of their clitorises, feminizing plastic surgery and oestrogen replacement therapy. It seems that the IAAF is pulling the trigger on female athletes’ head, who are ready to accept any treatment- even the most questionable ones- in order to keep competing.

On the other hand, the ineligibility sanction leads to a further disproportionate result: If Dutee is considered too masculine to compete in the female category, does she qualify for the male category? Can the mere presence of higher testosterone levels in a female athlete’s body presume that she can compete as a man? The answer has to be answered in negative, notwithstanding the ‘fair play’ issues that may arise. IAAF and IOC rules are cruelly disproportionate: athletes like Dutee who refuse to undergo this questionable treatment are effectively left without a forum to display their talent.

Do it like Pistorius

So far, the IAAF and IOC policy have been shown scientifically shaky, discriminatory and disproportionate. In parallel with these arguments, Dutee has also a very important precedent to rely upon: the CAS ruling in the Pistorius case.

In 2008, Oscar Pistorius, the South African double amputee runner, challenged IAAF rules that prohibited competitive running on ‘cheetah’ legs in international IAAF-sanctioned events alongside able-bodied athlete as being in breach of its commitment to non-discrimination. In that case, the fundamental rights of disabled athletes to be adequately accommodated and have genuinely equal opportunity to compete were at issue. Pistorius had to prove that he gained no advantage from using the prostheses. Reviewing scientific testing and analysis, the CAS concluded that ‘Cheetah’ legs did not give Pistorius an overall advantage.

Although the ‘tailor-made’ effect of the award could raise serious criticism[10], the Pistorius case has been landmark from a twofold point of view. Firstly, the CAS did not hesitate to challenge the indeterminacy of scientific analysis and developed the ‘net advantage’ approach, which stipulates that both the benefits and burdens have to be taken into consideration in determining whether a device provides an advantage to an athlete who uses it.[11] A similar approach has been adopted in the Veerpalu doping case, where the CAS questioned the scientific reliability of the limits applied for the WADA human growth hormone test (HGH).[12] Pistorius and Veerpalu cases have set an important threshold: international sports governing bodies, when it comes to enforce scientific- related sanctions, should rely on scientifically well-founded assessments.

Secondly, the CAS took an extraordinary step. It sent a clear message to international federations that they must address the eligibility criteria surrounding disabled athletes in a transparent and impartial manner.[13] There is no reason why the CAS in the Dutee case would do it differently. After all, sporting rules that seek to ensure fair competition and prevent a competitor from obtaining an unfair advantage have at least to be proportionate and non-discriminatory. 

Let Dutee Run?

The lines between male and female are blurring. As Fausto-Sterling has observed “the reason sports federations can’t get this right is because there is no right”.[14] Sports governing bodies may never be able to ensure fair competition without reaching absurd results.[15] In its daunting task to legally enforce controversial science related and ethical issues, CAS is facing a double challenge. It has the opportunity to set fair and accurate eligibility rules based on objective criteria, which will also preserve the essence of sports. Undoubtedly, sports governing bodies have the authority to establish their eligibility rules. However, self-regulation does not come without limits: sports federations’ rules have to comply with the non-discrimination clauses included in their statutes[16] and the IOC charter. The role of the CAS in monitoring the compliance of these regulations with non-discrimination norms is essential. Therefore, in some cases, CAS has to leave its ‘comfort-zone’: it has to deviate from its well-established practice to provide a significant degree of deference to sports governing bodies with regard to their authority to establish the eligibility rules and rather applies a ‘fairness’ requirement on a case-by-case basis, such as in the Pistorius case.

More importantly, CAS has the chance to finally flesh out the toothless IAAF and IOC commitments to gender equality. Dutee’s case is a fertile ground for an interpretation in the light and purpose of the recent UN resolution on sport and the proclaimed values underpinning the Olympic 2020 Agenda. After all, what is the point of trumpeting non-discrimination in sports, if, in 2014, a female athlete is deemed ‘not woman enough’ to compete with women?

Whatever the CAS decides, one thing remains certain: discrimination against women with sexual development specificities will not anymore be in the blind spot of the law. Dutee showed the way.

[1] IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition - In force as from 1st May 2011 ,  Article 6.8 <http://www.iaaf.org/about-iaaf/documents/medical >

[2] Dr Ben Koh, Daryl Adair and  Peter Sonksen OBE, ‘Testosterone, sex and gender differentiation in sport – where science and sports law meet’ (14 October 2014) <http://www.lawinsport.com/articles/item/testosterone-sex-and-gender-differentiation-in-sport-where-science-and-sports-law-meet>

[3]  J Ellison, ‘Caster Semenya And The IOC’s Olympics Gender Bender’ (26 July 2012) <http://www.thedailybeast.com/articles/2012/07/26/caster-semenya-and-the-ioc-s-olympics-gender-bender.html>

[4] R Pielke, ‘Dutee Chand, science and the spirit of sport: why IAAF policy is deeply flawed’ (20 October 2014) <http://www.sportingintelligence.com/2014/10/20/dutee-chand-science-and-the-spirit-of-sport-why-iaaf-policy-is-deeply-flawed-201001/>

[5] P Zettler, ‘Is It Cheating to Use the Cheetahs? The Implications of Technologically Innovative Prostheses for Sports Values and Rules’ (2009) 27 Boston University International Law Journal, 389.

[6] M Naimark, ‘A New Study Supports Female Athletes Unfairly Excluded From Sport’ (12 September 2014) <http://www.slate.com/blogs/outward/2014/09/12/sex_verification_in_sports_a_new_study_supports_unfairly_excluded_female.html>

[7] Dr Ben Koh,Daryl Adair and  Peter Sonksen OBE (n 2)

[8] R Pielke (n 4)

[9] For a very interesting comparison of the physiques between athletes from a wide range of different sports and competitions, see Howard Schatz’s Athlete series.

[10] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 56.

[11] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 36.

[12] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework’ (19 March 2014) < http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>

[13] Cornelius, 236

[14] J Ellison (n 3).

[15] P Zettler (n 5), 394.

[16] For instance, IAAF Constitution 2011, Art 3: “The Objects of IAAF are (…) 4. To strive to ensure that no gender, race, religious, political or other kind of unfair discrimination exists, continues to exist, or is allowed to develop in Athletics in any form, and that all may participate in Athletics regardless of their gender, race, religious or political views or any other irrelevant factor.”