Sport Arbitration and Human Rights: An Overview of the Semenya Judgement Before the European Court of Human Rights
By Ilias Bantekas*
Abstract
Sports contracts between sport governing bodies (SGBs), such as FIFA and the International Olympic Committee (IOC), and athletes typically contain, or refer to, an arbitration clause that provides for resolution of disputes initially at a tribunal established by the SGB in question. These contracts start off locally, with the athlete’s registration in a club and the club’s incorporation in a national sport federation (NSF), and end up becoming transnational with the incorporation of NSFs into SGBs. Its award may be appealed to the Court of Arbitration for Sport (CAS) or CAS may hear the dispute at first instance. The award produced by CAS is final, and just like other arbitral awards, can only be challenged in set aside (annulment) proceedings before the Swiss Federal Supreme Court, which serves as competent court for arbitral proceedings in Switzerland, where the CAS is located. This arbitral route was applied in the Semenya case, albeit the buck did not stop with the Swiss Court. The Swiss Court’s narrow conception of public policy, which effectively came down to whether the applicant was or was not offered access to remedies (among others), meant that the only recourse for the applicant was the European Court of Human Rights (ECtHR). The ECtHR relied on its extensive caselaw whereby arbitration is not immune from fundamental human rights guarantees and that the pursuit of sporting fairness by SGBs and CAS did not entail a violation of the right of access to justice. In short, this is a serious blow to the so-called lex sportiva, which suggests that because of the regulatory autonomy enjoyed by SGBs, their internal instruments (namely rules, regulations and institutional instruments adopted by the organs of SGBs) are not subject to external judicial review.
1 Introduction
This short article focuses on the struggle of a particular athlete, namely Caster Semenya, to traverse the dispute resolution procedures instituted by sport governing bodies (SGBs), which regulate the relationship between athletes, SGBs and national sport federations (NSFs). Although the athlete had probably not envisaged a ten-year legal battle, her case ultimately landed before the European Court of Human Rights (ECtHR). Its judgment in the summer of 2023[1] most probably did not end the tug-of-war between athletes – chiefly in individual sports – and their SGBs, but it does put place some doubt on the manner through which SGBs have been allowed to settle their disputes with athletes, particularly since they unilaterally draw up both the attendant substantive and procedural rules, thus giving rise to a species of forced arbitration.[2] National laws and institutions are generally disinclined to substitute SGBs in their internal law-making role on account of the principle that sport entities must be independent from state interference and regulation (so-called ‘autonomy of sport’).[3] However, as is evident throughout this article, the absence of concrete state regulation on SGBs has the potential to affect the human rights of athletes.
- Semenya is a South African female athlete that participated at the highest level in middle distance events. In fact, she was so good that the International Amateur Athletics Federation (IAAF), later renamed World Athletics, compelled her to take certain tests, at the behest of other competitors and national federations, to determine whether as an intersex person it was right that she compete in the women’s category. The tests were meant to determine Semenya’s testosterone levels with a view to assessing if these were comparable to those of female track and field athletes. In the event that Semenya’s testosterone levels were significantly higher she would be unable to compete in the women’s category. The crucial testosterone level was not set out in any national law but was instead predicated on an internal regulation of World Athletics, known as Eligibility Regulations for the Female Classification [Athletes with Differences of Sex Development]. This is referred to as the DSD Regulation,[4] and similar regulations are common to the majority of sport governing bodies (SGBs) and national federations.[5] The key point of contention was article 2.3 of the DSD Regulation. For an athlete to be considered eligible for the female classification, it was mandatory that the athlete met each of the following conditions (the Eligibility Conditions):
-
- (a) she must be recognized at law either as female or as intersex (or equivalent);
- (b) she must reduce her blood testosterone level to below five (5) nmol/L8 for a continuous period of at least six months (e.g., by use of hormonal contraceptives); and
- (c) thereafter she must maintain her blood testosterone level below five (5) nmol/L continuously (i.e., whether she is in competition or out of competition) for so long as she wishes to maintain eligibility to compete in the female classification in Restricted Events at International Competitions (or to set a World Record in a Restricted Event at a competition that is not an International Competition).
In the case of World Athletics, all track and field athletes competing in World Athletics competitions are subject to this Regulation, and so are NSFs, in which an athlete is a member. Upon determining that Semenya’s testosterone levels were high as compared to other female athletes, she was effectively provided with a sole option; namely, to undergo hormonal therapy, to which Semenya categorically refused. She claimed, among others, that such therapy invaded her private life and that in any event there were clear health hazards because its effects were largely unknown. As a result, she was refused the right to participate in events organized by World Athletics, which includes the Diamond League, the World Athletics Championship as well as the Olympics. Although the Olympics are organized by the International Olympic Committee (IOC), World Athletics is the IOC’s designated SGB for track and field events.[6] For Semenya, this was effectively the end of her professional career, loss of income from prize money and sponsorship, in addition to constituting an affront to her personal life.
Semenya went on to lodge an appeal against this decision of World Athletics before the Court of Arbitration for Sport (CAS). The CAS is a non-profit arbitral institution that deals specifically with sport-related disputes and is based in Lausanne, Switzerland. Just like all other arbitral institutions, its jurisdiction is triggered where parties to a dispute specifically submit a dispute there. By popular convention, all SGBs and the vast majority of NSFs agree to submit a range of disputes to CAS as a matter of their internal rules,[7] as was the case with the DSD Regulation. It should be emphasized that the institutional rules of all SGBs provide for two general layers of dispute resolution in relation to disputes or claims arising from their internal rules, such as the DSD Regulation. The first layer is composed of arbitral or quasi-judicial bodies set up by the SGB itself, whose decisions are binding by reason of contract or as arbitral awards under the laws of the seat, depending on the nature of the body in question.[8] The second layer consists of an appeal against the internal decision/award to CAS, which is an arbitral institution that issues final arbitral awards. The complication is that both the SGB dispute resolution body as well as CAS are authorized to resolve the dispute only by reference to the parties’ agreement, which is none other than the SGB internal regulation; in the case at hand this was the DSD Regulation. These regulations are devoid of human rights protections and are construed by reference to the instrument itself. First and foremost, the choice of dispute resolution has already been decided for the athlete in advance when she or he registered with its local club. Moreover, the governing law of the impugned institutional rules was drafted by one of the parties to the dispute, namely the SGB. Finally, it is not in the interests of SGBs to infuse human rights in their institutional rules – even though such rights exist anyway – on the ground that private actors are not burdened with human rights obligations.[9] Hence, any claim that the underlying provisions violated an athlete’s fundamental rights is outside the scope of the arbitral reference. In this context, Semenya’s human rights claims to CAS (i.e. discrimination, lack of access to judicial remedies, right to privacy, bodily integrity, degrading and inhuman treatment) were at odds with established practice. However, these very claims serve to demonstrate that the unchecked authority of SGBs to create so-called lex sportiva[10] exposes athletes to human rights risks, with little or no mechanisms available to address such risks.[11]
The CAS ultimately upheld the World Athletics’ DSD Regulation and found it to be wholly within the remit of the authority of sport governing bodies to decide matters within their sphere of operations; by extension, it held that the application of the DSD Regulation was in no way disproportionate with the aim of maintain a system of fair sports competitions.[12] What is more interesting is that despite the submission of an amicus brief by three UN special procedures mandate holders, the CAS tribunal did not find the human rights arguments particularly relevant.[13] What it determined to be at stake was whether it was fair for other female athletes to compete against someone with far higher testosterone levels.[14] In this conflict between sports fairness and fundamental human rights the CAS accepted that the former prevails.[15]
Upon losing her CAS battle, Semenya proceeded to challenge the CAS award on procedural grounds before the Swiss Federal Supreme Court (SFSC), which has set-aside[16] jurisdiction against CAS awards. It should be recalled that arbitral awards can only be annulled (otherwise known as set-aside) under a finite number of procedural (and not substantive) grounds set out in the arbitral statute of the seat of the arbitration.[17] These grounds are very much common in the law of all states and are reflected in article 34 of the UNCITRAL Model Law on International Commercial Arbitration.[18] The Swiss Supreme Court, not surprisingly, upheld the CAS award.[19] Competent courts (i.e. those with jurisdiction to hear set-aside claims against arbitral awards) such as the SFSC are only empowered to assess a very limited number of procedural irregularities associated with awards. The only possible irregularity the Semenya legal team could rely upon in order to flesh out its human rights arguments through these set-aside proceedings was that of public policy.[20]
No doubt, public policy embodies the full gamut of human rights (civil liberties) associated with the forum’s constitutional tradition, including its commitments under human rights treaties. In the case at hand, public policy could only be justified where it was sufficiently linked to claims of discrimination and lack of dignity in the award or the process underlying it.[21] While it is true that public policy claims are rare nowadays in international commercial arbitration,[22] in accordance with article 396(2)(a) of the Swiss Code of Civil Procedure[23] the parties may request the competent court to review an arbitral award on the ground that the award violates the European Convention of Human Rights (ECHR).[24] The SFSC rejected claims that Swiss public policy had been offended in the present instance because neither the CAS award nor the proceedings were “manifestly untenable” or “shockingly offended justice and equity”.[25]
2 The ECtHR Judgment
Following her unsuccessful set-aside application in the Swiss Federal Supreme Court, Semenya had exhausted all possible local remedies and lodged an application against Switzerland before the European Court of Human Rights (ECtHR). Switzerland is a member state to the ECHR and hence claims that the Swiss government or the state machinery as a whole (including its courts) have violated the ECHR are susceptible to review by the ECtHR, whose judgments are binding. It should be noted that World Athletics is a non-profit entity[26] that is headquartered in Monaco. Monaco is a party to the ECHR and in fact all of Semenya’s previous claims were against IAAF/World Athletics. The Swiss link to the jurisdiction of the ECtHR was the incorporation of CAS in Lausanne. CAS is an arbitral entity, headquartered in Switzerland, and by extension Swiss courts were competent to assess nullity claims against CAS awards. Despite acknowledging that the DSD Regulation was not drafted or adopted by Switzerland,[27] the ECtHR had no problem accepting jurisdiction even under such tenuous grounds.[28]
The relationship between the ECtHR and arbitration is not obvious.[29] Arbitration arises in the private sphere, even when a state entity is a party to an arbitral dispute. On the other hand, human rights is a body of law that regulates the relationship between states and their people and is therefore an emanation of the public sphere. By extension, arbitration becomes a matter of concern for the public sphere, and hence regulated by human rights law, where states have failed to do something that affects a participant’s right in the arbitral process.[30] In the vast majority of cases, human rights claims arising from arbitral processes concern various emanations of the right to a fair trial and access to justice.[31] Indeed, the fact that arbitration is a matter of party autonomy should not absolve states from their duty to preserve and uphold the right to a fair trial. It is in this context that Semenya’s otherwise private claim becomes a public human rights claim.
Semenya chiefly claimed a violation of Article 14 ECHR (discrimination), in conjunction with Article 8 thereto (right to respect for private life). In addition, she maintained the existence of a violation under Article 13 ECHR (right to an effective remedy), in conjunction with Articles 14 and 8. In respect of Article 13 ECHR, Semenya’s key argument was that human rights claims arising from the application and enforcement of the DSD Regulation could not be entertained even in the slightest by CAS or Swiss courts and as a result she was deprived of even the most rudimentary access to effective remedies. The ECtHR referred to Article 190 of the Swiss Federal Constitution, whereby the country’s Supreme Court is obliged to adhere to international law, including the ECHR.[32] The ECtHR agreed with this argument, ultimately finding that although CAS and the SFSC had entertained the athlete’s claim as a matter of agreement or contract, she had not been afforded sufficient institutional and procedural safeguards in Switzerland, at least such that allowed her to have her substantive human rights complaints examined effectively. It was immaterial for the ECtHR that the Regulation in question had been agreed to by all national track and field federations.[33]
A fundamental principle underlying all human rights is that their rights holders cannot consent to forego these even by their express consent, as the state and other empowered actors would then be able to eliminate these rights by agreement. It was therefore crucial in the case at hand that the impugned regulation was assessed for its human rights compatibility by a judicial entity that was not involved in the drafting or enforcement of said regulation. The contested DSD Regulation provides in Article 5.2 that CAS enjoys exclusive jurisdiction for any pertinent dispute arising between an athlete, a national federation, and World Athletics. “Disputes” in this sense encompass the “validity, legality and/or proper interpretation” of the DSD Regulations. Article 5.4 of the DSD Regulations goes on to provide that:
The law governing the dispute or appeal will be the IAAF Constitution and the IAAF Rules and Regulations (including these Regulations), with the laws of Monaco applying subsidiarily, and in the case of any conflict between any of the above instruments and the CAS Code currently in force, the above instruments will take precedence.
Semenya’s key claims of discrimination, privacy breach, and degrading treatment could be challenged only through the DSD Regulation. This was clearly because of the narrow and exclusive wording in the DSD Regulation and the principle that contracts and agreements must be construed in accordance with the parties’ common intention, including their arbitration clause.[34] Nonetheless, the stance of World Athletics during the CAS proceedings and later before the ECtHR makes it clear that there was no intention that it be construed in conformity with the ECHR, unless CAS were to somehow determine that this was in the interests of justice. The ECtHR took issue with the limited protection offered by the SFSC in a dispute between a powerful SGB and a sole athlete.[35] The SFSC has shown itself disinclined to accept that CAS awards fall foul of the ECHR and hence that they somehow violate Swiss public policy. Such a finding would open Pandora’s Box. In this manner, the SFSC divests itself from the task of examining the substance of the dispute or the parties’ substantive claims; such attempts have failed in the past.[36] Arbitration is not inherently unfair and in fact the ECtHR has made it clear that CAS judgments must adhere to ECHR standards.[37] The ECtHR emphasized that the existence of a “centralized system” for handling sports disputes, as is the case with the CAS, in a consistent and uniform manner is no doubt beneficial.[38] Such a centralized system ensures that, because all sport-related disputes are heard by a single arbitral institution, its awards are both consistent and predictable. Even so, athletes always find contractual hurdles that impact their human rights and which they had not anticipated.[39] Although general principles of contract law generally favor the rescission of unfair or unjust clauses in contracts where the parties’ negotiating power is vastly uneven, [40] the sui generis contracts entered into by athletes upon registering with a national federation have not been subjected to the same rules.
In response to Semenya’s claim of gender discrimination, the ECtHR held that Semenya had been subjected to a difference in treatment as compared with other female athletes as a result of the DSD Regulation. Whereas intersex athletes are effectively forced to undergo experimental hormonal treatment with unknown medical consequences, this is not the case with other athletes. It went on to emphasize that such discrimination could be justified only by weighty reasons[41] and crucially that the SFSC’s balancing of sporting fairness over fundamental human rights was incompatible with the ECHR and the long-standing case law of the ECtHR.[42] “Sporting fairness” entails that no competitor has an undue advantage, whether biological (for example, high testosterone levels in women’s competitions) or technical (for example, certain artificial limbs) over other athletes in the same category. Intersex athletes competing in women’s categories are viewed as possessing the physical attributes of male athletes.[43] In the case at hand, such a balancing test would need to take account of the following factors: the scientific uncertainty of the DSD Regulations; the side-effects of the hormonal treatment proposed by World Athletics by which to reduce the athlete’s testosterone levels; the horizontal effect of the discrimination; and the policies and options afforded to other athletes identified as transgender or intersex.[44] The ECtHR acknowledged that CAS had correctly identified some of the pitfalls of the hormonal treatment, particularly its side effects and the uncertainty of its success, but ultimately criticized the Federal Supreme Court for its review on the narrow procedural set-aside grounds and not taking stock of Article 14 ECHR into consideration in the process.[45] As a result of the high personal stakes involved in this case, the ECtHR held that Switzerland had over-stepped its margin of appreciation.[46] The “margin of appreciation” is a concept developed by the ECtHR, according to which states enjoy a certain degree of discretion in their application of rights, in accordance with prevailing social norms.
III Analysis
The ECtHR did not perceive the lex sportiva as a sphere of regulation where human rights were absent, or at best optional. While sporting fairness was deemed a valid consideration, this was not necessarily at issue. Rather, what the Court considered central to this case was whether states should interfere to ensure that fundamental rights are enforced in the private sphere; the Court did not view this as a dispute about whether intersex persons should be allowed to compete in women’s competitions. This judgment, passed with a slim majority of four to three, illustrates the complexity and fragmentation of discreet areas of law and regulation. Were the courts of a liberal, developed, state to annul an arbitral award other than on the narrow procedural grounds listed in article 35 of the UNCITRAL Model Law, they would undoubtedly be branded as hostile to arbitration. This is even more so if the reason for interference with the award related to the arbitral tribunal’s handling (or omission) of substantive human rights claims. The Swiss Federal Supreme Court played by the rules in refusing to set aside the award, albeit offering a lukewarm rebuke, at least obiter dicta, in respect of the obvious human rights gaps in the process. These gaps were equally identified by the CAS. The SFSC could perhaps have viewed these human rights inadequacies from a public policy perspective, but this would have entailed that all future CAS awards be fully compliant with the ECHR and the case law of the ECtHR. This was not something that the Supreme Court wanted to do. A potential backlash is the likelihood of CAS moving to an alternative jurisdiction, or SGBs moving their business to other arbitral forums.[47]
The root of the problem lies with institutional rules of SGBs and their relation to state laws. Many such rules provide few if any human rights guarantees, to which athletes implicitly consent in order to participate in sporting events. When athletes realize at some later point that one or more provisions in these rules adversely impact on their fundamental rights, they are shocked to discover that exclusive jurisdiction to resolve all or any disputes arising from said rules lies with the judicial entity of the SGB in question,[48] as well as/or CAS. Given that the SGB rules conferring jurisdiction on CAS have the effect of a submission agreement (to arbitration), the courts are naturally prevented from exercising jurisdiction over the dispute. CAS and/or SGB arbitral tribunals in turn possess authority to adjudicate the dispute only on the basis of the submission agreement (i.e. the SGB rule), which is silent on, or antithetical to human rights. The “validity, legality and interpretation” of the DSD Regulation under its article 5.2 seems sufficiently broad to cover incidental human rights concerns (i.e. any human rights claims that may arise in the future by reference to a constitution, treaty or custom), although not necessarily direct human rights claims that arise from the DSD Regulation. Despite the adoption of several human rights policies, SGBs often display an antipathy to being bound by anything other than their own internal rules. Following the judgment in Reynolds v IAAF,[49] which found in favor of the applicant’s anti-doping claim, the Vice-President of IAAF made the following statement as to why IAAF would refuse to recognise the judgment. ‘Courts create lots of problems for our anti-doping work, but we do not care in the least what they say. We have our rules, they are supreme’.[50]
While there can be little doubt that institutional arbitration under SGB rules qualify as forced arbitration, it is not suggested that this is always unfair. On the contrary, both the CAS rules and the Swiss Federal Supreme Court provide ample guarantees to counterweigh the parties’ imbalanced contractual undertakings and increasingly SGBs are equipping themselves with human rights rules.[51] Moreover, it would be disproportionate in terms of cost and expediency for all SGBs to negotiate personalized contracts with all athletes with dispute resolution clauses that refer disputes to several arbitral institutions or the courts.[52] The very idea underlying the CAS is that it builds sufficient expertise to deal with issues that are common across all courts. Where CAS fails is with its treatment of fundamental human rights in sports-related disputes. This may have to do with the fact that human rights expertise is missing from CAS arbitrators in a manner that would allow them to address human rights and alleviate forced arbitration concerns.[53] Moreover, the CAS, in consultation with SGBs, could well suggest and enforce a policy whereby its chambers are bound to assess all cases not only on the basis of institutional rules, but also in conformity with the ECHR. This will allow the Supreme Court to argue that awards failing to comply with the ECHR violate Swiss public policy. This will certainly reduce the likelihood of set-aside claims against CAS awards on human rights grounds, which are certain to grow exponentially and which the Swiss Supreme Court at some point will have to deal with comprehensively. It is certainly not in the interests of Switzerland to be dragged to the ECtHR on the ground that the CAS issues awards in its territory. Were the Supreme Court to align CAS awards with Switzerland’s obligations under the ECHR, human rights-related issues will be resolved at the arbitral level and very few will ultimately reach the Supreme Court under set-aside proceedings.
As already briefly alluded to, by the time a dispute reaches CAS its adjudicatory powers are already pre-determined, and it has no authority to override an instrument adopted by an SGB on the ground that it is unconstitutional or that it offends human rights. The CAS possesses no such cassation power. The instruments in question, as was the case with the DSD Regulation, are considered as contracts between athletes, national sport federations and athletes, even if athletes are unaware of this sui generis contract when they register to represent their club, usually at an early age. In effect, SGBs, through NSFs and local clubs, enter into contracts with parties possessing vastly disproportionate negotiating power, namely young athletes, who not only fail to understand the contractual nature of their initial registration, but are equally in the dark about the arbitral mechanism in that agreement. It is not of course suggested that had they known they would have refused to register and ultimately give up their sporting careers. Rather, it is important that athletes are treated as any other party to an adhesion contract, which is precisely what such agreements are. That is, their rights and obligations must be spelt out in detail and any provision that is likely to impact them on account of their power disparity with SGBs must be construed in accordance with fundamental rights. This in turn will necessitate that CAS does not blindly enforce all the instruments of SGBs without questioning their conformity with fundamental principles of human rights law. This is hardly a tall order, which certainly entails a more potent and proactive role for the Swiss legislature, if indeed the CAS remains in this country, as well as a human rights-based approach by the Swiss Federal Supreme Court in its capacity as the competent court for set aside proceedings against awards rendered by CAS. This is a much more complex revamp than any other field of arbitration, but it is one for which there is little other alternative if human rights are to remain meaningful in the realm of sport. It is hoped that a revision of the lex sportivaand its relationship with human rights, at least at the level of CAS is the next big in international sports arbitration.
* Professor of Transnational Law at Hamad bin Khalifa University (member of Qatar Foundation) and Adjunct Professor of Law at Georgetown University.
[1] Semenya v Switzerland, App No 10934/21, (2023) ECHR 219, at: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-226011%22 Delivered 11 July 2023, European Court of Human Rights.
[2] See Faraz Shahlaei, The Collision Between Human Rights and Arbitration: The Game of Inconsistencies at the Court of Arbitration for Sport, 40 Arb. Int’l 169, 170-73 (2024) (arguing that the “human rights inconsistency of CAS may be explained, among others, by the flexible nature of arbitral proceedings, inadequate expertise in human rights law among counsel and arbitrators, and the possibility of favouritism towards sport governing bodies.” These inconsistencies in CAS jurisprudence make it difficult to regard it as a truly effective remedy for violations of human rights).
[3] e.g. Art 1(1) Council of Europe Convention on the Manipulation of Sports Competitions, CETS 215 (2014), conveniently known as the Macolin Convention; equally, Art 15, 2022 FIFA Statutes, https://digitalhub.fifa.com/m/3815fa68bd9f4ad8/original/FIFA_Statutes_2022-EN.pdf [https://perma.cc/K3Z2-QW8M].
[4] The 2023 version is available at: https://worldathletics.org/download/download?filename=2ffb8b1a-59e3-4cea-bb0c-5af8b690d089.pdf&urlslug=C3.6. The DSD Regulations under contention were those in place in 2018.
[5] International Tennis Federation (ITF), ‘ITF Transgender Policy’ (2018). Available at: https://www.itftennis.com/media/2163/itf-transgender-policy.pdf [https://perma.cc/3QAH-QTVC] Rugby Football Union, ‘Policy for the Participation of Transgender and Non-Binary Gender Players in Rugby Union’ (2019), https://www.englandrugby.com/the-rfu/policies/gender-participation [https://perma.cc/6NZW-YHJP]. The existing 2022 Policy is available at: https://rfu.widen.net/s/z2wjfrkcpp/rfu-gender-participation-policy-2022 [https://perma.cc/HPA7-D5V3].
[6] See generally, Lena Holzer, What Does It Mean to Be a Woman in Sports? An Analysis of the Jurisprudence of the Court of Arbitration for Sport, 20 Hum. Rts. L. Rev. 387 (2020) (exploring the definition of ‘sportswoman’ in earlier manifestations of the Semenya case, as well as other CAS awards).
[7] See eg Art 61, International Olympic Committee, Olympic Charter (effective Sept. 15, 2017), https://stillmed.olympics.com/media/Documents/International-Olympic-Committee/IOC-Publications/EN-Olympic-Charter.pdf. [https://perma.cc/AY67-BSJJ].
[8] Dutee Chand v AFI and IAAF, CAS 2014/A/3759, Award (24 July 2015), available at: https://www.doping.nl/media/kb/3317/CAS%202014_A_3759%20Dutee%20Chand%20vs.%20AFI%20%26%20IAAF%20%28S%29.pdf, and Mokgdadi Caster Semenya v IAAF, CAS 2018/O/5794 and Athletics South Africa v IAAF, CAS 2018/O/5798, Award (30 April 2019), available at: https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf [https://perma.cc/5YPJ-ZASS], paras 50-55 (both cases involved complaints by intersex athletes that were banned from international competition by the internal arbitral entities of SGBs). Both awards stand for the proposition that the internal regulations of SGBs are effectively ‘hard law’ and in additional possess a contractual value, which entails that they must be complied with not only by athletes and SGBs, but also by courts and tribunals as governing law in any relevant disputes. This is clarified in Art 9(1)(b) World Athletics Constitution, which stipulates that member federations “shall comply with this Constitution, and all Rules and Regulations.” It should be remembered that are contractually bound to their national (i.e. ‘member’) federations.
[9] Ilias Bantekas, ‘Political Neutrality of International Sports Federations: Compatible with Fundamental Rights of Athletes?’ (2024) 34 Fordham IP, Med & Ent LJ 193 (arguing that SGB’s attack on political protest effectively amounts to a violation of freedom of expression, but their authority to stifle freedom of expression has never been challenged by any state).
[10] See LEONARDO CASINI, The Making of a Lex Sportiva by the Court of Arbitration for Sport, 12 GERMAN LJ 1317 (2011) (emphasizing that the particular status of the institutions forming the international sports order renders its regulatory ambit transnational in nature, albeit in synergy with national laws).
[11] Mokgdadi Caster Semenya v. IAAF, CAS 2018/O/5794 and Athletics South Africa v. IAAF, CAS 2018/O/5798, Award, paras 50-55.
[12] Ibid, paras 603-604.
[13] Ibid, para 554.
[14] Ibid.
[15] The Semenya award very much relied on a similar case decided by CAS a few years earlier, namely Dutee Chand v. AFI and IAAF, CAS 2014/A/3759, Award (24 July 2015), which was vociferously criticized on similar grounds.
[16] Arbitral awards are not subject to appellate-style challenges, but only a very narrow set of annulment (otherwise known as set-aside) challenges. There is now a very consistent and uniform body of transnational law concerning available set-aside grounds, which are chiefly procedural in nature. These may be found in Art 34 of the UNCITRAL Model Law on International Commercial Arbitration, available at: https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf [https://perma.cc/Y7NQ-REZP]. For a commentary, see Ilias Bantekas, Pietro Ortolani et al, Commentary on the UNCITRAL Model Law on International Commercial Arbitration (Cambridge University Press, 2020) 858-99.
[17] In accordance with Article 34(2) of the UNCITRAL Model Law on International Commercial Arbitration, an arbitral award may be set aside (annulled) if:
“(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in Article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this state; or
(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this state; or
(ii) the award is in conflict with the public policy of this state”.
[18] The Model Law is available at: https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf [https://perma.cc/Q7ZC-MTLP]. See also Ilias Bantekas, Pietro Ortolani, Shahla Ali, Manuel Gomez, Michael Polkinghorne, Commentary on the UNCITRAL Model Law on International Commercial Arbitration (Cambridge University Press, 2020) 858-99.
[19] Case 4A_248/2019 and Case 4A_398/2019, Judgment (25 August 2020), available at: https://www.bger.ch/ext/eurospider/live/fr/php/aza/http/index.php?highlight_docid=aza%3A%2F%2Faza://25-08-2020-4A_248-2019&lang=de&zoom=&type=show_document.
[20] Id, Art 34(2)(b)(ii) UNCITRAL Model Law on International Commercial Arbitration.
[21] Case 4A_248/2019 and Case 4A_398/2019 supra note 19, paras 9.4 and 11.
[22] Wasiq Abass Dar, ‘Understanding Public Policy as an Exception to the Enforcement of Foreign Arbitral Awards: A South-Asian Perspective’ (2015) 2 European Journal of Comparative Law and Governance 316, 317; Farshad Ghodoosi, ‘Arbitrating Public Policy: Why the Buck Should Not Stop at National Courts’ (2016) 20 LEWIS & CLARK L REV 237 (both articles contemplate the complexity of upholding public policy claims in order to avoid enforcement of arbitral awards).
[23] Swiss Code of Civil Procedure (Dec. 19, 2008), SR 272 (Switz.), https://www.fedlex.admin.ch/eli/cc/2010/262/en [https://perma.cc/M6S5-2Y2J] is available in English at: https://www.fedlex.admin.ch/eli/cc/2010/262/en. Art 396(2)(a) reads: “The review [of an arbitral award rendered in Switzerland] on the grounds of a violation of the ECHR may be requested if: the European Court of Human Rights has determined in a final judgment (Art. 44 ECHR) that the ECHR or its protocols have been violated, or the case has been concluded by means of a friendly settlement (Art. 39 ECHR).”
[24] Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221.
[25] Case 4A_248/2019 and Case 4A_398/2019 supra note 19, para 9.1.
[26] World Athletics Constitution, Art. 1.2 (as amended Aug. 14, 2023), https://worldathletics.org/about-iaaf/documents/constitution. It reads as follows: “The IAAF was formed in 1912 and was registered as an association in the Principality of Monaco on 28 October 1993. The IAAF is established for an indefinite period under the laws of Monaco (Loi n◦1.355 of 23 December 2008).”
[27] Semenya v Switzerland, App No 10934/21, (2023) ECHR 219, paras 77-89.
[28] Ibid, paras 103-12.
[29] See generally Adam Samuel, Arbitration, Alternative Dispute Resolution Generally and the European Convention on Human Rights, 21 J. INT’L. ARB. 413 (2004) and Shahlaei, supra note 2 (both putting forth a significant amount of case law whereby the private nature of arbitration does not mean that its procedures are immune from human rights challenges and the application of fundamental standards of fair trial).
[30] Ilias Bantekas, Equal Treatment of Parties in International Commercial Arbitration 69 INT’L. & COMP. L.Q. 991 (2020) (reviewing the caselaw of the ECtHR on the intersection between arbitration and the right to fair trial, which is further reflected in Article 18 of the UNCITRAL Model Law on International Commercial Arbitration).
[31] See, for example, Klausecker v. Germany. App. No. 415/07, §§69–77 (Jan. 6, 2015) https://hudoc.echr.coe.int/eng?i=001-151029 [https://perma.cc/UV77-TJQ4]; Deweer v. Belgium, App. No. 6903/75, §§48–49 (Feb. 27, 1980) https://hudoc.echr.coe.int/eng?i=001-57469 [https://perma.cc/6LHJ-RQB6]; Tabbane v. Switzerland, App. No. 41069/12, §27 (Mar. 1, 2016) https://hudoc.echr.coe.int/eng?i=002-11120 [https://perma.cc/BXN3-EFG5]; Lithgow and Others v. UK, App. Nos. 9006/80; 9262/81; 9263/81; 9265/81; 9266/81; 9313/81; and 9405/81, §§200–201 (Jul. 8, 1986) https://hudoc.echr.coe.int/eng?i=001-57526 [https://perma.cc/RZ7Z-44ST].
[32] Semenya, supra note 27, §103.
[33] Semenya, supra note 27, §§163–173 (noting that member States to the ECHR have an obligation to safeguard the rights of persons arising from private relationships, such as the internal instruments of SGBs).
[34] See Ilias Bantekas, Transnational Arbitration Agreements as Contracts: In Search of the Parties’ Common Intention, 39 ARBITR. INT. 1 (2022).
[35] Semenya, supra note 27, §108 (noting that “it is clear from the Federal Supreme Court’s case-law that the concept of public policy, in the substantive sense of that term, encompasses, among other things, the prohibition of discrimination and respect for human dignity”, which it failed to apply in the case of Semenya).
[36] See Bakker v Switzerland, App. No. 7198/07 (Sep. 3, 2019) (where a professional cyclist’s complaints concerning the SFSC’s limited powers of review over CAS awards was found inadmissible).
[37] On the right to fair trial before specialized sporting judicial and quasi-judicial entities, see Mutu and Pechstein v. Switzerland, App. Nos. 40575/10 and 67474/10 (Oct. 2, 2018) (where the ECtHR held that CAS proceedings amounted to compulsory arbitration, which in turn was obliged to provide all the procedural safeguards enunciated in Art 6 ECHR, including the right to a public hearing). See also Riva, Akal and Others v. Turkey, App. Nos. 30226/10, 17880/11; 17887/11; 17891/11; and 5506/16 (Jan. 28, 2020) https://hudoc.echr.coe.int/eng?i=001-200548 [https://perma.cc/A7A4-NMNR] (where the ECtHR found a violation of Art 6(1) ECHR on the ground that the Arbitration Committee of the Turkish Football Federation (TFF) suffered from structural deficiencies, such that allowed external influence and lack of full independence in its decision-making capacity).
[38] Semenya, supra note 27, §111.
[39] By way of illustration, Rule 50.2 of the Olympic Charter emphasizes that “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.” Yet, this is contrary to foundational rights, chiefly the right to peaceful assembly and freedom of expression, which by extension give rise to a peaceful right of protest. See Eleni Polymenopoulou, Expressing Dissent: Gag Laws, Human Rights Activism and the Right to Protest, 32 FLA. J. INT’L. L. 337 (2021).
[40] Restraint of trade by reason of contract is paradigmatic of this approach, which moreover finds fertile ground in the realm of sports contracts. See Ilias Bantekas, Professional Tennis and Restraint of Trade in the English Common Law, 22 VA. J. SPORTS & ENT. LJ. 1 (2023).
[41] Semenya, supra note 27, §169.
[42] Id. at §§174, 186.
[43] See, for example, Transgender Swimmer Lia Thomas Loses Case to Overturn World Aquatics Ban, SPORT RESOLUTIONS, (Jun. 13, 2024) https://www.sportresolutions.com/news/view/transgender-swimmer-lea-thomas-loses-case-to-overturn-world-aquatics-ban [https://perma.cc/266V-7YPQ]; LPGA Under Scrutiny for Allowing Transgender Golfer to Compete, SPORT RESOLUTIONS, (Oct. 23, 2024) https://www.sportresolutions.com/news/view/lpga-under-scrutiny-for-allowing-transgender-golfer-to-compete [https://perma.cc/KW6B-K4NM].
[44] Semenya, supra note 27, §§179–202.
[45] Id. at §§181–85.
[46] Id. at §201.
[47] There is no shortage of suitors vying for SGBs to set up headquarters on their territory. The Malaysian government offered the Badminton World Federation (BWF), a non-profit SGB, the types of privileges and immunities one associates with intergovernmental organizations. See Ilias Bantekas, The Dispute Resolution Mechanism of the Badminton World Federation: Sui Generis Expert Determination? 20 SOUTH CAROL. J. INT’L. L. & BUS. 1 (2024).
[48] Examples include the FIFA Dispute Resolution Chambers and its Football Tribunal. The same is true of the International Tennis Federation’s (ITF) Independent Tribunal. See ILIAS BANTEKAS, The Resolution of Professional Tennis Disputes, 14 J INT’L DISP SETT 1 (2023). The first tier of dispute resolution in sports disputes may be, depending on the claim, a national sports-related court or arbitral tribunal, or an arbitral tribunal of the SGB in question. The CAS enjoys both an appellate function against awards from the afomentioned tribunals or acts in the first instance.
[49] Reynolds v. IAAF, 505 US 1301 (1992).
[50] Reproduced in KEN FOSTER, Is There a Global Sports Law? 2 ENT & SPORTS LJ 1, at 1 (2016).
[51] The IOC website suggests that principles 1,2, 4 and 6 of its Fundamental Principles and Art 2 of the IOC Charter enshrine human rights; this author suggests that this is hardly the case. But see, IOC Olympic Agenda 2020+5, available at: https://stillmedab.olympic.org/media/Document%20Library/OlympicOrg/IOC/What-We-Do/Olympic-agenda/Olympic-Agenda-2020-5-15-recommendations.pdf, which suggests adopting an overarching IOC human rights strategic framework with specific action plans for each of the IOC’s three different spheres of responsibility; linking the overarching IOC human rights strategic framework to various existing or forthcoming IOC strategies; amending the Olympic Charter and the “Basic Universal Principles of Good Governance” of the Olympic and Sports Movement to better articulate human rights responsibilities and; enabling the newly created IOC Human Rights unit to develop the IOC’s internal capacity with regard to human rights. See eg FIFA Human Rights Policy (2017), available at: https://digitalhub.fifa.com/m/1a876c66a3f0498d/original/kr05dqyhwr1uhqy2lh6r-pdf.pdf.
[52] In Platini v. Switzerland, App. 526/18, ECtHR Judgment (11 February 2020), available at: https://hudoc.echr.coe.int/fre#{%22languageisocode%22:[%22ENG%22],%22appno%22:[%22526/18%22],%22documentcollectionid2%22:[%22ADMISSIBILITY%22],%22itemid%22:[%22001-231223%22]}, paras 65-71, the ECtHR did not find that Platini was a forced participating in arbitral proceedings before CAS whereby he challenged his suspension from UEFA for financial misconduct.
[53] See John Ruggie ‘For the Game, For the World: FIFA and Human Rights’ (April 2016), available at: https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/programs/cri/files/Ruggie_humanrightsFIFA_reportApril2016.pdf, who noted that “in its current setup, human rights are sidelined and the applicable CAS arbitration rules do not offer adequate human rights protection. … CAS’ 300-plus arbitrators … generally lack human rights expertise.”
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