Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.
Over the past days, we have been flooded by
media reports discussing the “Caster Semenya-case”, reports rapidly relayed in
social networks. Since the debate has a distinct legal component and since
almost every report appears to draw significantly from the legal background, I granted
myself permission – as compensation so to speak - to publish a somewhat more personal,
less legal, post than I usually would.
Let me make one thing clear from the outset
– I am still ‘agnostic’ about the question of how to solve the issues
surrounding the male versus female divide in sports. Each time I have been
asked to write or speak on the subject, I have tried to stick to describing the
legal situation and its implications. I do not have the miracle solution as to
how to handle this infinitely complex issue. And I am not sure anyone can claim
to hold that solution at this point. Like everyone, I am doing my research and
trying to be humble enough to stay within the realm of my competences. More...
Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.
Introduction
A remarkable aspect of the run-up to the 2016
Rio Olympic Games was the stream of negative media reports portraying
broad-scale public mistrust in sport, with the most prominent topic being the doping
scandals in athletics and questions surrounding the participation of Russia.
A different controversy, but one also
directed at the credibility of sports, has exposed a few female Olympians to
repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported
that Indian track-and-field athlete Dutee Chand had qualified for the Rio
Olympic Games by breaking the national record, thus to become the first Indian
athlete to run the 100m at the Olympics since 1980. The attention that Dutee
Chand’s qualification attracted within international media, however, was not
related only to her outstanding results. It came as part of a medical, ethical
and legal controversy that has existed for many years relating to ‘policing’
the male versus female divide in sports. Another athlete who has found herself
in the midst of this controversy is South African runner Semenya Caster, whose
participation in the Olympics has been the object of much
conjecture.
The divide between male and female athletes
forms the core of most sports’ competition rules, including athletics. The
justification for this basic divide has rarely been questioned as such, but has
been a matter for debate when it comes to handling atypical situations on both
sides of the ‘dividing line’ such as ‘transgender’ or ‘intersex’ athletes. A category of
athletes that has, especially, been viewed as a challenge to the divide is composed
of female athletes affected by ‘hyperandrogenism’, a health condition that
results in naturally elevated androgen levels, including testosterone levels.
On 24 July 2015, a CAS panel rendered a decision
involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the
ongoing debate about the policies regulating hyperandrogenism in sport. Much
has been reported in the media about the case: controversial issues include
whether the CAS was the appropriate forum to assess these questions; whether
the decision was appropriate, both on the merits and on the procedure; and what
the consequences of the CAS award would be, for the parties, for athletics and
for the sporting community at large.
Much like the current crisis surrounding
doping in sports, the public attention on women with (proven or suspected) hyperandrogenism
is driven by a concern that an athlete’s physiology – natural or artificially
induced could distort competition, destroying the ‘level playing field’
that supports the Olympic ideal. Both topics are also often brought back to the
goal of protecting an athlete’s health. Parallels are further found in the
strong reactions both topics evoke, and the steps taken by the regulating
authorities to convince the public that everything in their power is being done
to preserve a level playing field.
A less obvious but equally important point
of comparison can be found in the issues both topics raise concerning the legal
validity of decisions made by sports organizations, especially in a
science-related context. This blog focuses on those more ‘legal’ aspects,
through the prism of the decision of the CAS in the Dutee Chand matter and its
legal implications. After touching briefly on the
background of the case, we will comment on two aspects of the Chand award with
respect to challenges in regulating hyperandrogenism in sport within the
confines of the law: First from the viewpoint of a CAS panel called upon to
evaluate the validity of a set of regulations, and second from the viewpoint of
the sports organizations seeking to both adequately protect fairness in sport
and to provide a legally valid (and effective) regulatory solution.[1]
More...
Editor’s note: This
report compiles all relevant news, events and materials on International and
European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the
comments section below, feel free to add links to important cases, documents
and articles we have overlooked.
The Headlines
The McLaren Report on Russia’s State Doping System
It is difficult not to start this monthly
report without referring to the never-ending Russian doping investigation that
is shaking the sporting world. On 18 July, the independent investigation on
Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested
by the World Anti-Doping Agency (“WADA”), released its report. It confirmed
evidence of widespread, State-sponsored doping in Russian sports and called for
a full ban on the country from the next Rio Olympics. In response to the report,
the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the
run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles
calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation
against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible
legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the
appeal of the Russian Olympic Committee and 68
Russian athletes against the International Association of Athletics Federations
(“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF
membership given the evidence of a state-sponsored doping system. As a
consequence, Russian track and field athletes were also banned from Rio 2016
Olympics. With the IAAF
welcoming this decision, one could think that nothing was standing in the way
of a full Olympic ban for all Russian athletes. While some Russian athletes announced
that they would appeal the CAS award to the Swiss Federal Court. Yelena
Isinbayeva, the banned pole vault champion, even took it a step further by
claiming that she would challenge the IAAF decision as far as the European Court of
Human Rights. Yet, it is very improbable that any of
these challenges be decided in time for the Rio Games.More...
Editor’s note: This report compiles all relevant news,
events and materials on International and European Sports Law based on the
daily coverage provided on our twitter feed @Sportslaw_asser. You are
invited to complete this survey via the comments section below, feel free to
add links to important cases, documents and articles we might have
overlooked.
The headlines
What a month June
turned out to be. Waking up the morning after the 23rd, the results
of the UK referendum on EU membership were final. The words of Mark Twain: “Apparently
there is nothing that cannot happen today”, might provide the most apt
description of the mood felt at the time.[1]
The Leave campaign’s narrow victory has brought along tremendous economic,
political and legal uncertainties for both the UK and the (other) Member
States. To give but one example, with regard to the implications of Brexit on Europe’s
most profiting football league, we recommend an older blog
by Daniel Geey and Jonny Madill. More...
Editor’s note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the
comments section below, feel free to add links to important cases, documents
and articles we might have overlooked.
The Headlines
Challenged
membership put a lot of emphasis on football federations in May. The Court of Arbitration for Sport (“CAS”) has
rendered an award, on 27 April 2016, ordering the FIFA Council to
submit the application of the Gibraltar Football Association (GFA) for FIFA
membership to the FIFA Congress (the body authorised to admit new members to FIFA). The GFA has sought since 1999 to become a member of
UEFA and FIFA. In May 2013, it became a
member of the UEFA and went on to seek membership of FIFA. More...
The decision of the
Bundesgerichtshof (BGH), the Highest Civil Court in Germany, in the Pechstein case was eagerly awaited. At
the hearing in March, the Court decided it would pronounce itself on 7 June,
and so it did. Let’s cut things short: it is a striking victory for the Court
of Arbitration for Sport (CAS) and a bitter (provisory?) ending for Claudia
Pechstein. The BGH’s press
release is abundantly clear that the German judges endorsed the CAS
uncritically on the two main legal questions: validity of forced CAS
arbitration and the independence of the CAS. The CAS and ISU are surely right
to rejoice and celebrate the ruling in their respective press releases that
quickly ensued (here
and here).
At first glance, this ruling will be comforting the CAS’ jurisdiction for years
to come. Claudia Pechstein’s dire financial fate - she faces up to 300 000€ in
legal fees – will serve as a powerful repellent for any athlete willing to
challenge the CAS.More...
Editor's note: Conor
Talbot is a Solicitor at LK Shields Solicitors in Dublin and an
Associate Researcher at Trinity College Dublin. He can be contacted at
ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at
www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.
Sport is an integral part of the culture of almost
every nation and its ability to shape perceptions and influence public opinion
should not be underestimated. The United
Nations has highlighted the potential for using sport in reducing
discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing
health and well-being, fostering empowerment, facilitating social inclusion and
challenging gender norms.
In spite of the possible benefits, the successful
implementation of sport-related initiatives aimed at gender equity involves
many challenges and obstacles. Chief
amongst these is the way that existing social constructs of masculinity and
femininity — or socially accepted ways of expressing what it means to be a man
or woman in a particular socio-cultural context — play a key role in
determining access, levels of participation, and benefits from sport. This contribution explores recent
developments in the interaction between transgender and intersex rights and the
multi-billion dollar industry that the modern Olympic Games has become. Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes
and, while there has been progress as part of a long and difficult journey to afford transgender people full legal
recognition through the courts, it seems clear that sport could play an increasingly
important role in helping change or better inform social attitudes.More...
Editor’s note: This report compiles all relevant news, events and materials on
International and European Sports Law based on the daily coverage provided on
our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section
below, feel free to add links to important cases, documents and articles we
might have overlooked.
The Headlines
The eagerly awaited FIFA Presidential elections of 26 February provided
for a “new face” at the pinnacle of international football for the first time
since 1998. One could argue whether Infantino is the man capable
of bringing about the reform FIFA so desperately needs or whether he is simply
a younger version of his predecessor Blatter. More...
Editor’s note: Professor
Mitten is the Director of the National Sports Law Institute and the LL.M. in
Sports Law program for foreign lawyers at Marquette University Law School in
Milwaukee, Wisconsin. He currently teaches courses in Amateur Sports Law, Professional
Sports Law, Sports Sponsorship Legal and Business Issues Workshop, and Torts.
Professor Mitten is a member of the Court of Arbitration for Sport (CAS),
and has served on the ad hoc Division for the XXI Winter Olympic Games in Sochi,
Russia.
This Book Review is published at 26 Marquette Sports Law Review 247 (2015).
This
comprehensive treatise of more than 700 pages on the Code of the Court of
Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful
to a wide audience, including attorneys representing parties before the CAS,
CAS arbitrators, and sports law professors and scholars, as well as
international arbitration counsel, arbitrators, and scholars. It also should be of interest to national
court judges and their law clerks because it facilitates their understanding of
the CAS arbitration process for resolving Olympic and international sports
disputes and demonstrates that the Code provides procedural fairness and
substantive justice to the parties, thereby justifying judicial recognition and
enforcement of its awards.[1]
Because the Code has been in existence
for more than twenty years—since November 22, 1994—and has been revised four
times, this book provides an important and much needed historical perspective
and overview that identifies and explains well-established principles of CAS
case law and consistent practices of CAS arbitrators and the CAS Court Office. Both authors formerly served as Counsel to
the CAS and now serve as Head of Research and Mediation at CAS and CAS
Secretary General, respectively, giving them the collective expertise and
experience that makes them eminently well-qualified to research and write this
book.More...
Editor’s note: Our first innovation for the
year 2016 will be a monthly report compiling relevant news, events and materials
on International and European Sports Law based on the daily coverage provided
on our twitter feed @Sportslaw_asser. You are invited to complete
this survey via the comments section below, feel free to add links to important
cases, documents and articles we might have overlooked.
The Headlines
The world of professional sport has been making
headlines for the wrong reasons in January. Football’s governing body FIFA is
in such a complete governance and corruption mess that one wonders whether a
new President (chosen on 26 February[1])
will solve anything. More recently, however, it is the turn of the athletics
governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA
Independent Commission released its second report into doping in international
athletics. More...