Semenya v Switzerland: human rights pushed further and fully into the international sports arbitration system

Basic human rights should be respected worldwide, including those of top athletes. However, who is in charge of enforcing human rights within the global sports dispute resolution system? In Semenya v Switzerland,[1] the European Court of Human Rights ('ECtHR') shed some light on this fundamental issue.

The ECtHR concluded that the limited supervision exercised by the Swiss Federal Tribunal ('SFT') over the Court of Arbitration for Sport ('CAS') was not sufficient to comply with Switzerland's positive obligations under the European Convention on Human Rights ('ECHR') to ensure that no individual under its jurisdiction suffers discrimination.

There is no doubt that, as some commentators have highlighted,[2] such a finding constitutes a breakthrough and has important implications for the world of sport in general and for the international sports arbitration system in particular.

Background

Mokgadi Caster Semenya ('Semenya') is a world-class South African athlete, gold medal winner at the London (2012) and Rio (2016) Olympics, and a world champion at 800 metres several times over. Semenya, who was born a female and has not undergone any medical treatment to change her gender, has hyperandrogenism, a condition that causes her body to produce high levels of testosterone.

The International Association of Athletics Federations ('IAAF'), World Athletics, is opposed to people with hyperandrogenism freely competing in female categories of athletics events because it allegedly affects fair competition.

In 2011, the IAAF released its Hyperandrogenism Regulations requiring female athletes with this condition to undergo hormone treatment to lower their testosterone levels. Consequently, individuals such as Semenya faced a difficult choice: either go through treatment or refrain from competing in their sport. Semenya chose to undergo treatment – putting her health at risk – and went on to take the 2011 world title in Daegu and become gold medallist at the London Olympics.

Several years later, in 2015, a CAS Panel[3] suspended the application of the Hyperandrogenism Regulations and as a result Semenya decided to stop her hormone treatment. But the IAAF did not give up there.

In April 2018, putting the focus on those track-and-field categories in which, according to the IAAF, hyperandrogenism gives a clearer advantage,[4] the IAAF introduced the Elegibility Regulations for the Female Classification (Athletes with Differences of Sex Development) ('DSD Regulations').[5] This time, Semenya – who did not question whether the DSD Regulations applied to her – decided not to comply with them and instead fought them in court.

Procedural history

Semenya played by the rules of the current sports dispute resolution system: arbitration before the CAS followed by an appeal to the SFT on a set of limited grounds typically interpreted narrowly.

In June 2018, pursuant to Clause 5.2 of the DSD Regulation,[6] Semenya filed a request for arbitration before the CAS. It is of note that, as it is usual in the world of sports, the only option available to Semenya was arbitration before the CAS,^[7] which equates to a system of de facto forced arbitration.[8] Semenya challenged the validity of the DSD Regulations on the grounds that they discriminated against her compared to other athletes, based on sex and inherent biological characteristics. She argued before the CAS that the DSD Regulations breached her right to privacy, dignity and freedom.

The CAS Panel,[9] however, was not sympathetic to Semenya's human rights concerns. Although the majority of the Panel found that the DSD Regulations were indeed discriminatory, it concluded that 'such discrimination is a necessary, reasonable and proportionate means of achieving the aim of what is described as the integrity of female athletics'.[10]

In a second step, arguing that it was contrary to Swiss public policy, Semenya tried to set aside the CAS award before the SFT under Article 190(2)(e) of the Swiss Federal Act on Private International Law ('PILA'). The SFT upheld the award[11] and raised some interesting points in its reasoning.

First, that the CAS' seat was the only link that Semenya's case had to Switzerland. Second, that the standard applicable to set aside an award in Switzerland based on a breach of public policy is very high; to the point that, in the SFT's own words, the 'annulment of an international arbitration award on this ground is extremely rare'.[12] And third that, although under the applicable legal framework it was not possible to invoke the ECHR directly, its underlying principles can be considered to shape the concept of Swiss public policy[13].

Based on this judgment from the SFT upholding the CAS award, Semenya sought the ECtHR's protection, which issued a tight majority ruling (four votes to three) on 11 July 2023.

The ECtHR ruling

Semenya v Switzerland is not so much a test of the legality of the DSD Regulations as it is an analysis of whether the CAS' and SFT's reviews satisfy the requirements of the ECHR.[14]

The ECtHR first had to decide whether it had jurisdiction to hear Semenya's case, since Switzerland contested it on the basis that Semenya is a South African national challenging the validity of a regulation issued by a private entity located in Monaco. Switzerland contended that, if the ECtHR were to accept jurisdiction based only on the CAS' seat, the SFT would be forced to apply substantive rights of the ECHR, and not merely procedural ones such as the right to an independent and impartial tribunal under Article 6 ECHR, as was decided in Mutu & Pechstein v Switzerland.[15] Interestingly, Switzerland argued that a decision accepting jurisdiction would ultimately be equivalent to the CAS applying the European human rights system to all athletes, which could potentially result in the CAS relocating to a non-signatory country of the ECHR.

The ECtHR was not persuaded by Switzerland's arguments. For the ECtHR, the key element to accept jurisdiction was that Semenya initiated annulment proceedings before the SFT, following the natural path of the current sports dispute resolution system. The fact that the IAAF is a private entity located in Monaco, and not a Swiss-based private entity, as was the case in Mutu & Pechstein v Switzerland, ^[16] does not alter the ECtHR's jurisdiction ratione personae et loci insofar as its review would focus on CAS and SFT proceedings.[17]

Turning to the merits, the ECtHR concluded that Switzerland had violated Semenya's right to non-discrimination (Article 14 ECHR) – together with her right to respect for her private life (Article 8 ECHR) – and to an effective remedy (Article 13 ECHR).

The main reason for the ECtHR's decision was the lack of 'sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination'. Consequently, the ECtHR concluded that 'Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on grounds of sex and sexual characteristics requiring “very weighty reasons" by way of justification'. According to the ECtHR, the 'high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough institutional and procedural review, but the applicant had not been able to obtain such a review'. In other words, given the delicate nature of Semenya's case, Switzerland should have gone the extra mile and examined her case in greater depth to be sure that her rights under the ECHR had not been breached.

It is of note that the non-consensual nature of sports arbitration played a role in both the ECtHR's jurisdiction and merits findings. On jurisdiction, the ECtHR noted that, should it decline jurisdiction, many professional athletes would be denied access to the ECtHR, which is not in line with the spirit and purpose of the ECHR.[18] On the merits, the ECtHR noted the problem of applying the limited Swiss public order review (Article 190(2)e PILA) beyond the realms of commercial arbitration, where the parties face each other at arm's length. The ECtHR suggests that, in the context of non-consensual arbitration such as sports arbitration, the SFT should apply an enhanced review of the merits of any human rights considerations raised by athletes, whose judicial protection on this front should be no less than that afforded to people with more conventional professions.

The ECtHR thus declared that Switzerland had breached Semenya's rights under the ECHR and ordered it to pay Semenya EUR 60,000, plus interest.

Main implications

In Semenya v Switzerland the ECtHR was required, for the first time, to examine violations of substantive rights under the ECHR in the context of sports arbitration, rather than only procedural ones.[19] In doing so, the ECtHR expressed its view on the applicability of the ECHR safeguards to horizontal private relationships of individuals and entities with no connection to Switzerland and, by extension, the role of the SFT and Switzerland as protectors of human rights in global sports.

The Semenya decisions are already considered a landmark case[20] that is likely to cause major upheaval in the relationship between sports and human rights in at least three different ways:

Firstly, using the words of the dissenting minority, the ECtHR has expanded its jurisdiction to 'cover the entire sporting world'. This is indeed a breakthrough because it means that all regulations issued by international sports governing bodies that submit their disputes to the CAS must comply with all the substantive and procedural rights afforded by the ECHR.[21] This certainly gives the ECHR a global reach that, according to the minority, it was never intended to have.[22]

Secondly, it confirms that the current Swiss international sports arbitration system of exclusive CAS arbitration and limited review by the SFT leaves a lacuna in human-rights protection for athletes.[23] Under the current system, the SFT has very limited powers to set aside CAS awards, as is proven by the fact that the SFT did not set aside a single CAS award for public policy reasons between 1989 and 2019.[24] The fact that the ECtHR has spotted this lacuna might mean that sports governing bodies, whose powers over athletes resemble those of a State over its citizens, will become subject to increased legal scrutiny in terms of human rights.

Thirdly, and finally, the ECtHR's judgment calls for a change in the current system. It remains to be seen whether the CAS will take a step forward and adopt an enhanced role in examining human rights concerns (although it has been suggested that, as currently designed, the CAS is not equipped to perform that role),[25] or whether it will be Switzerland, as a State, that will adapt its institutions to satisfy the ECtHR's concerns. This might include a broadening of the SFT's notion of public policy under Article 190(2)(e) PILA to account for the ECHR, legislating and adapting the PILA to include a separate human rights ground under which CAS awards might be challenged, or even creating a separate chamber within the SFT that is better equipped to deal with cases involving human rights arguments brought forward by athletes in CAS proceedings.

All of the proposed ways forward will take time to implement, if indeed they ever are. In any event, Semenya's saga is not over yet as Switzerland has referred the decision to the ECtHR's Grand Chamber, which is perhaps the most fitting conclusion to a series of decisions dealing with such important issues. As such, both the sporting and arbitration communities will be closely monitoring whether this landmark decision is finally upheld.

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[1] Caster Semenya v Switzerland, European Court of Human Rights, Application n.º 10934/21, 11 July 2023 ('Semenya v Switzerland').

[2] Verfassungsblog, 'A Human Rights Breakthrough in Sports Law?' (26 July 2023) <https://verfassungsblog.de/a-human-rights-breakthrough-in-sports-law/#:~:text=The%20ECtHR%20Chamber%20Judgment%20in,Switzerland&text=In%20the%20Chamber%27s%20view%2C%20Switzerland,her%20discrimination%20complaints%20effectively%20examined> accessed 3 November 2023.

[3] Dutee Chand v Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF), Arbitral Award, delivered by CAS, 24 July 2015. The CAS Panel based the suspension on the fact that it had not been properly established that hyperandrogenic athletes enjoyed, as a general rule, a significant competitive advantage over other athletes.

[4] 400m races, 400m hurdle races, 800m races, 1500m races, one mile races, and all other Track Events over distances between 400m and one mile (inclusive), whether run alone or as part of a relay event or a Combined event, as per Article 2.2(b) of the 'Elegibility Regulations for the Female Classification (Athletes with Differences of Sex Development)'.

[5] Regulation available in <https://s3.documentcloud.org/documents/4449932/IAAF-Eligibility-Regulations-for-the-Female.pdf> accessed 3 November 2023.

[6] DSD Regulations, Clause 5.2: 'Any dispute arising between the IAAF and an affected athlete (and/or her Member Federation) in connection with these Regulations will be subject to the exclusive jurisdiction of the CAS.'

[7] V. Ferreres, 'When arbitration is not voluntary: the case of Mutu and Pechstein v. Switzerland' (2018), Investment Arbitration Outlook (Issue 4), p 3 <https://fr.zone-secure.net/107881/925267/#page=3> accessed 3 November 2023.

[8] L. Freeburn, 'Forced Arbitration and Regulatory Power in International Sport - Implications of the Judgment of the European Court of Human Rights in Pechstein and Mutu v. Switzerland' (2021) Marquette Sports Law Review (Vol. 31, Issue 2, Art. 6) <https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1798&context=sportslaw> accessed 3 November 2023.

[9] Caster Semenya & Athletics South Africa (ASA) v The International Association of Athletics Federations (IAAF), Arbitral Award, delivered by CAS, 30 April 2019 <https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf> accessed 3 November 2023.

[10] Ibid para 626.

[11] Caster Semenya & Athletics South Africa (ASA) v The International Association of Athletics Federations (IAAF), Swiss Federal Tribunal, Decision 4A_248/2019 and 4A_398/2019, 25 August 2020 <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> accessed 3 November 2023.

[12] Ibid para. 9.1.

[13] Ibid para 9.2

[14] Although it raises serious concerns, the ECtHR does not find that the DSD Regulations violate the ECHR.

[15] Mutu & Pechstein v Switzerland, European Court of Human Rights, Application n.º 40575/10 and 67474/10, 2 October 2018. The ECtHR had to examine, in light of the athletes' procedural right to a hearing 'by an independent and impartial tribunal established by law' (ECHR, Art. 6), whether athletes are entitled to a public hearing before the CAS and whether the method of appointing arbitrators to the CAS could affect their independence and impartiality. The ECtHR concluded that athletes are indeed entitled to a public hearing before the CAS and that, although sports governing bodies could have had some influence over the arbitrator selection system in force at the time, this did not mean that all or even a majority of the members of the CAS could not be individually regarded as objectively or subjectively independent and impartial vis-à-vis those organisations.

[16] Fédération Internationale de Football Association and International Skating Union ('FIFA' and 'ISU', respectively).

[17] Caster Semenya v Switzerland, European Court of Human Rights, Application n.º 10934/21, 11 July 2023, para 107.

[18] Ibid. para. 111.

[19] See Mutu and Pechstain v Switzerland, Applications n.º 40575/10 and 67474/10, 2 October 2018, in which the ECtHR considered whether the CAS complied with an athlete's right to an independent and impartial tribunal under ECHR, Art. 6.

[20] J. Cooper, 'Semenya v Switzerland (European Court of Human Rights), No. 10934/21, July 11 2023' (2023), in Entertainment and Sports Law Journal, p. 1 <https://www.entsportslawjournal.com/article/id/1490/> accessed 3 November 2023.

[21] M. James, 'A victory for Caster Semenya – but still no right to compete' (2023), in The International Sports Law Journal, pp. 149-150.

[22] Dissenting opinion of Judges Grozev, Roosma and Ktistakis in Caster Semenya v Switzerland, European Court of Human Rights, Application n.º 10934/21, 11 July 2023, p 122.

[23] J. Cooper, 'Semenya v Switzerland (European Court of Human Rights), No. 10934/21, July 11 2023' (2023), in Entertainment and Sports Law Journal, p. 2 <https://www.entsportslawjournal.com/article/id/1490/> accessed 3 November 2023.

[24] The ECtHR found that the CAS' refusal to address human rights concerns contributed to the lack of institutional and procedural safeguards afforded in Switzerland. See L. Holzer, 'The European Court of Human Rights in the Caster Semenya Case: Opening a New Door for Protecting the Rights of Persons with Variations of Sex Characteristics and Human Rights in Sports', in OpinioJuris, 4 August 2023, para. 173 <http://opiniojuris.org/2023/08/04/the-european-court-of-human-rights-in-the-caster-semenya-case-opening-a-new-door-for-protecting-the-rights-of-persons-with-variations-of-sex-characteristics-and-human-rights-in-sports/#:~:text=The%20ECtHR%20upheld%20several%20of,right%20to%20private%20life%20(Art> accessed 3 November 2023.

[25] M. Krech, 'The Misplaced Burdens of 'Gender Equality' in Caster Semenya v IAAF: The Court of Arbitration for Sport Attempts Human Rights Adjudication' (2019) in International Sports Law Review (Vol. 66) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3611413> accessed 3 November 2023.