Editor's note: Jeremy Abel
is a recent graduate of the LL.M in International Business Law and Sports of
the University of Lausanne.
1. Introduction
The famous
South African athlete Caster Semenya is in the last lap of her long legal
battle for her right to run without changing the natural testosterone in her
body. After losing her cases before the Court of Arbitration for Sport (CAS)
and the Swiss Federal Tribunal, she filed an application
before the European Court of Human Rights (Court). In the meantime, the Court
has released
a summary of her complaint and a series of questions addressed to the parties
of the case.
As is well
known, she is challenging the World Athletics’ Eligibility
Regulations for the Female Classification (Regulations) defining the conditions under which female
and intersex athletes with certain types of differences of sex development
(DSDs) can compete in international athletics events. Despite the Regulations
emanating from World Athletics, the last round of her legal battle is against a
new opponent: Switzerland.
The purpose
of this article is to revisit the Semenya case from a European
Convention on Human Rights (ECHR) perspective while considering certain
excellent points made by previous contributors (see here,
here
and here)
to this blog. Therefore, the blog will follow the basic structure of an ECHR
case. The following issues raised by Semenya shall be analysed: the applicability
of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non
discrimination (Article 14 ECHR), as well as the proportionality of the
Regulations. More...
On Wednesday 26 May 2021 from 16.00-17.00 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fifth Zoom In webinar on the Court of Arbitration for Sport (CAS) from the perspective of the European Court of Human Rights (ECtHR).
We have the pleasure to be joined by Prof. Helen Keller, former Judge at the ECtHR and a prominent dissenter to the majority’s ruling in the Mutu and Pechstein case.
The ECtHR decision
in the Mutu and Pechstein case rendered on 2 October 2018 is widely
seen as one of the most important European sports law rulings. It was
also the first decision of the Strasbourg court dealing with a case in
which the CAS had issued an award. The applicants, Adrian Mutu and
Claudia Pechstein, were both challenging the compatibility of CAS
proceedings with the procedural rights enshrined in Article 6(1) of the
European Convention on Human Rights (ECHR). The court famously declined
to conclude that the CAS lacked independence or impartiality, but did
find that, insofar as Claudia Pechstein was concerned, she was forced to
undergo CAS arbitration and, therefore, that CAS proceedings had to
fully comply with the procedural rights guaranteed in the ECHR. In
particular, the court held that the refusal by CAS to hold a public
hearing, in spite of Claudia Pechstein’s express request, was contrary
to Article 6(1) ECHR. Beyond this case, as highlighted by the recent
decision of Caster Semenya to submit an application
to the ECtHR, the decision opens the way for a more systematic
intervention of the Strasbourg court in assessing the human rights
compatibility of CAS awards and more broadly of the transnational sports
regulations imposed by international sports governing bodies.
Prof. Helen Keller will discuss with us the
implications of the ECtHR’s Mutu and Pechstein decision and the
potential for future interventions by the court in the realm of the lex sportiva.
The webinar will take the form of an interview followed by a short Q&A open to the digital public.
Please note the discussion will NOT be recorded and posted on our Youtube channel.
Register HERE!
Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights, Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).
This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.
Sport is the field par excellence in which discrimination
against intersex people has been made most visible.
Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)
Olympic and world champion athlete Caster Semenya
is asking the European Court of Human Rights (ECtHR) to make sure all
women athletes are “allowed to run free, for once and for all”. Semenya
brings her application against Switzerland, which has allowed a private
sport association and a private sport court to decide – with only the
most minimal appellate review by a national judicial authority – what it
takes for women, legally and socially identified as such all their
lives, to count as women in the context of athletics. I consider how
Semenya’s application might bring human rights, sex, and sport into
conversation in ways not yet seen in a judicial forum. More...
Editor's Note: Daniela
Heerdt is a PhD researcher at Tilburg Law School in the Netherlands. Her PhD
research deals with the establishment of responsibility and accountability for
adverse human rights impacts of mega-sporting events, with a focus on FIFA
World Cups and Olympic Games. She published a number of articles on mega-sporting
events and human rights, in the
International Sports Law Journal, Tilburg Law
Review, and the Netherlands
Quarterly of Human Rights.
In the past couple of years, the Fédération
Internationale de Football Association (FIFA) made remarkable steps towards embedding
human rights into their practices and policies. These developments have been
discussed at length and in detail in this
blog and elsewhere, but
a short overview at this point is necessary to set the scene. Arguably, most
changes were sparked by John
Ruggie’s report from 2016, in which he articulated a set of concrete
recommendations for FIFA “on what it means for FIFA to embed respect for human
rights across its global operations”, using the UN Guiding Principles on Business
and Human Rights (UNGPs) as authoritative standard.[i]
As a result, in May 2017, FIFA
published a human rights policy, in which it commits to respecting
human rights in accordance with the UNGPs, identifies its salient human rights
risks, and acknowledges the potential adverse impacts it can have on human
rights in general and human rights of people belonging to specific groups. In
October 2017, it adopted new bidding regulations requiring
bidders to develop a human rights strategy and conduct an independent human
rights risk assessment as part of their bid. In March 2017, FIFA also created
a Human Rights Advisory Board,
which regularly evaluated FIFA’s human rights progress and made recommendations
on how FIFA should address human rights issues linked to its
activities. The mandate of the Advisory Board expired at the end of last
year and the future of this body is unknown at this point.
While some of these steps can be directly
connected to the recommendations in the Ruggie report, other recommendations
have largely been ignored. One example of the latter and focus of this blog
post is the issue of embedding human rights at the level of national football
associations. It outlines recent steps taken by the German football association
“Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke
Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to
what extent these steps can be regarded as proactive moves by those
associations or rather spillover effects from FIFA’s human rights efforts. More...
Editor's note: Faraz Shahlaei
is a JSD Candidate at Loyola Law School, Los Angeles. His research and
teaching interests are public international law, international sports
law, international human rights and dispute resolution.
The issue of international
human rights was a central contention in Caster Semenya case ever since the
start of her legal battle against the regulations of the IAAF. However, the
human rights arguments were poorly considered in the two proceedings related to
this case. To put it in perspective, it is like having a key player nailed to
the bench throughout the whole game; no coach ever tried to give it a chance
while it had the potential to be the game changer for all parties.
In 2019, the Human
Rights Council, the inter-governmental human rights body of the UN, expressed
concern over issues of discrimination in sports in particular regarding
IAAF female classification regulations. In June 2020, the United Nations High
Commissioner for Human Rights submitted a report to the United
Nations Human Rights Council on the “Intersection of
Race and Gender Discrimination in Sport”. The report draws a detailed
picture of how human rights in the Semenya case have been violated and also
elaborates on the inherent problem of addressing human rights issues in
alternative dispute resolution mechanisms favored by the sport governing
bodies. However, despite an in-depth discussion of Caster Semenya’s case at
both the CAS and then the SFT, the question of human rights, a key concern and
a fundamental pillar of the case, hasn’t been adequately answered yet! More...
Editor’s note:
Thomas Terraz is a fourth year LL.B. candidate at the International and
European Law programme at The Hague University of Applied Sciences with a
specialisation in European Law. Currently he is pursuing an internship at the
T.M.C. Asser Institute with a focus on International and European Sports Law.
1. Introduction
On
March 05, the T.M.C. Asser Institute hosted ‘Mega-sporting events and human
rights: What role can EU sports diplomacy play?’ a Multiplier Sporting Event
organized in the framework of a European research project on ‘Promoting a
Strategic Approach to EU Sports Diplomacy’. This project funded by the European
Commission through its Erasmus+ program aims to help the EU adopt a strategic approach to sports
diplomacy and to provide evidence of instances where sport can help amplify EU
diplomatic messages and forge better relations with third countries. In
particular, Antoine Duval from the Asser
Institute is focusing on the role of EU sports diplomacy to strengthen human rights in the
context of mega sporting events (MSE) both in Europe and abroad. To this end,
he organized the two panels of the day focusing, on the one hand, on the ability
of sport governing bodies (SGB) to leverage their diplomatic power to promote
human rights, particularly in the context of MSEs and, on the other, on the
EU’s role and capacity to strengthened human rights around MSEs. The following
report summarizes the main points raised during the discussions. More...
The upcoming 2022 FIFA World Cup in Qatar and its links
to human rights violations has been the subject of many debates in the
media and beyond. In particular, the respect of migrant workers’ labour
rights was at the forefront of much public criticisms directed against
FIFA. Similarly, past Olympics in Rio, Sochi or Beijing have also been
in the limelight for various human rights issues, such as the lack of
freedom of the press, systematic discrimination on the basis of sexual
orientation or forced evictions. These controversies have led sports
governing bodies (SGBs) to slowly embrace human rights as an integral
part of their core values and policies. Leading to an increased
expectation for SGBs to put their (private) diplomatic capital at the
service of human rights by using their leverage vis-à-vis host countries
of their mega-sporting events (MSEs). In turn, this also raises the
question of the need for the EU to accompany this change by putting
human rights at the heart of its own sports diplomacy.
Research collective
This Multiplier Sporting
Event, organised in the framework of the transnational project on
‘Promoting a Strategic Approach to EU Sports Diplomacy’ funded by the
Erasmus + Programme, aims to trigger discussions on the role of an EU
sports diplomacy in strengthening respect for human rights in the
context of MSEs both at home and abroad. It will feature two roundtables
focused on the one hand on the diplomatic power and capacity of SGBs to
fend for human rights during MSEs and on the other on the EU’s
integration of human rights considerations linked to MSEs in its own
sports diplomacy.
Programme
13:20 – 14:00 – Welcome and opening speech –Antoine Duval (Asser Institute)
14:00 - 15:30 - Panel 1: Leveraging the Diplomatic Power of the Sports Governing Bodies for Human Rights
- Lucy Amis (Unicef UK/Institute for Human Rights and Business)
- Guido Battaglia (Centre for Sport and Human Rights)
- Florian Kirschner (World Players Association/UNI Global Union)
- Claire Jenkin (University of Hertfordshire)
15:30 – 16:00 - Coffee Break
16:00 - 17:30 - Panel 2: A Human Rights Dimension for the EU’s Sports Diplomacy?
- Arnout Geeraert (Utrecht University)
- Agata Dziarnowska (European Commission)
- Alexandre Mestre (Sport and Citizenship)
- Ministry of Health, Welfare and Sport (TBC)
17:30 - Reception
Editor's note: Daniela Heerdt is a PhD
candidate at Tilburg Law School in the Netherlands. Her PhD research deals with
the establishment of responsibility and accountability for adverse human rights
impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic
Games.
About three years ago, the Fédération Internationale de Football
Association (FIFA) adopted a new version of its Statutes,
including a statutory commitment to respect internationally recognized human
rights. Since then, FIFA undertook a human rights journey that has been praised
by various stakeholders in the sports and human rights field. In early June, the
FIFA Congress is scheduled to take a decision that could potentially undo all
positive efforts taken thus far.
FIFA already decided in January 2017 to increase the
number of teams participating in the 2026 World Cup from 32 to 48. Shortly
after, discussions began on the possibility to also expand the number of teams for
the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility
study, which revealed that the expansion would be feasible but require a
number of matches to be hosted in neighbouring countries, explicitly mentioning
Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One
does not have to be a human rights expert to be highly alarmed by this list of
potential co-hosting countries. Nevertheless, the FIFA Council approved of the
possibility to expand in March 2019, paving the way for the FIFA Congress to
take a decision on the matter. Obviously, the advancement of the expansion
decision raises serious doubts over the sincerity of FIFA’s reforms and human
rights commitments. 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
#Save(d)Hakeem
The plight of
Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last
November in Bangkok upon his arrival from Australia on the basis of a red
notice issued by Interpol in contravention of its own policies which afford
protection to refugees and asylum-seekers – continued throughout the month of
January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a
(well-founded) fear of persecution stemming from his previous experience when
he was imprisoned and tortured as part of the crackdown on pro-democracy
athletes who had protested against the royal family during the Arab spring –
maintained a firm stance, demanding that Hakeem be extradited to serve a prison
sentence over a conviction for vandalism charges, which was allegedly based on
coerced confessions and ignored evidence.
While international
sports governing bodies were critised from the very beginning for not using
enough leverage with the governments of Bahrain and Thailand to ensure that
Hakeem’s human rights are protected, they have gradually added their voice to
the intense campaign for Hakeem’s release led by civil society groups. FIFA,
for example, has sent a letter directly to the Prime Minister of Thailand, urging
the Thai authorities ‘to take the
necessary steps to ensure that Mr al-Araibi is allowed to return safely to
Australia at the earliest possible moment, in accordance with the relevant
international standards’. Yet many activists have found this action
insufficient and called for sporting sanctions to be imposed on the national
football associations of Bahrain and Thailand.
When it looked like
Hakeem will continue to be detained in Thailand at least until April this year,
the news broke that the Thai authorities agreed to release
Hakeem due to the fact that for now the Bahraini government had given up on the
idea of bringing Hakeem ‘home’ – a moment that
was praised as historic for the sport and human rights movement.
Russia avoids further sanctions from WADA despite
missing the deadline for handing over doping data from the Moscow laboratory
WADA has been back
in turmoil ever since the new year began as the Russian authorities failed to
provide it with access to crucial doping data from the former Moscow laboratory
within the required deadline
which expired on 31 December 2018, insisting that the equipment WADA intended to use
for the data extraction was not certified under Russian law. The Russian
Anti-Doping Agency thus failed to meet one of the two conditions under which
its three-year suspension was controversially
lifted in September 2018.
The missed deadline sparked outrage among many athletes and national
anti-doping organisations, who blamed WADA for not applying enough muscle
against the Russian authorities.
Following the
expiry of the respective deadline, it appeared that further sanctions could be
imposed on the Russian Anti-Doping Agency, but such an option was on the table
only until WADA finally managed to access the Moscow laboratory and retrieve the
doping data on 17
January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the
progress as a major breakthrough for clean sport and members of the WADA
Executive Committee agreed that no further
sanctions were needed
despite the missed deadline. However, doubts remain as to whether the data have
not been manipulated. Before WADA delivers on its promise and builds strong
cases against the athletes who doped – to be handled by international sports
federations – it first needs to do its homework and verify whether the
retrieved data are indeed genuine.
British track cyclist Jessica Varnish not an employee
according to UK employment tribunal
On 16 January 2019,
an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports
governing bodies in the United Kingdom, ruling that the female track cyclist
Jessica Varnish was neither an employee nor a worker of the national governing
body British Cycling and the funding agency UK Sport. The 28-year-old multiple
medal winner from the world and European championships takes part in
professional sport as an independent contractor but sought to establish before
the tribunal that she was in fact an employee of the two organisations. This
would enable her to sue either organisation for unfair dismissal as she was
dropped from the British cycling squad for the 2016 Olympic Games in Rio de
Janeiro and her funding agreement was not renewed, allegedly in response to her
critical remarks about some of the previous coaching decisions.
The tribunal
eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent –
rather she was personally performing a commitment to train in accordance with
the individual rider agreement in the hope of achieving success at
international competitions’. Despite the outcome of the dispute, Jessica
Varnish has insisted that her legal challenge contributed to a positive change
in the structure, policies and personnel of British Cycling and UK Sport, while
both organisations have communicated they had already taken action to
strengthen the duty of care and welfare provided to athletes.
Sports Law Related Decisions
Official Documents and Press Releases
In the news
Doping
Football
Other
Academic Materials
International Sports Law Journal
Other
Blog
Law in Sport
Other
Upcoming Events
- 8 May –
FIFA and
Human Rights: Impacts, Policies and Responsibilities, T.M.C. Asser Institute, The Hague, Netherlands
- 22-23
May – Football Law
2019: Player Transfers, Agents, Politics and the Business of Football, London, UK
- 27-28
June – 14th
Sport&EU Annual Conference, Valleta, Malta
- 12-13
September – Understand
the Rules of the Game 2019: LawInSport Annual Conference, London, UK
- 24-25
October – Third Annual
International Sports Law Conference of the International Sports Law Journal, T.M.C. Asser Institute, The Hague, Netherlands