Editor's note: Roger Pielke Jr. is a professor at the
University of Colorado Boulder
The decision this week by the Swiss Federal
Tribunal not to revisit the arbitral decision of the Court of Arbitration for
Sport (CAS) in the case of Caster Semenya was not unexpected, but it does help
to expose a major design flaw in international sports governance. Specifically,
the institutions that collectively comprise, create and enforce “sports law” appear
incapable of addressing flawed science and violations of basic principles of
medical ethics.
While different people will have different,
and legitimate, views on how male-female competition classifications might be
regulated, the issues highlighted involving science and ethics are not
subjective, and are empirically undeniable. In normal systems of jurisprudence,
procedures are in place to right such wrongs, but in sports governance
processes in place prevent such course corrections. And that is a problem.
The empirical flaws in the science
underpinning the IAAF (now World Athletics) Semenya regulations are by now well
understood, and have been accepted by WA in print and before CAS (I was an
expert witness for Semenya, and was present when IAAF accepted responsibility
for the flawed research). You can read all the details here
and in the CAS Semenya decision. I won’t rehash the flawed science here, but the
errors are fatal to the research and obvious to see.
One key part of the comprehensive
institutional failures here is that the journal which originally published the
flawed IAAF research (the British Journal of Sports Medicine, BJSM) has,
inexplicably, acted to protect that work from scrutiny, correction and
retraction. Normally in the scientific community, when errors of this magnitude
are found, the research is retracted. In this case, the BJSM refused to retract
the paper, to require its authors to share their data or to publish a critique
of the IAAF analysis. Instead, upon learning of the major errors, the BJSM
published a rushed, non-peer reviewed letter by IAAF seeking to cover-up the
errors. All of this is non-standard, and a scandal in its own right.
The violation of basic principles of
medical ethics required by the implementation of the WA Semenya regulations is
also not contested. Both WA and the IOC have claimed to uphold the World
Medical Association’s Helsinki Declaration on medical and research ethics. Yet,
the WMA has openly
criticized the WA regulations as unethical and asked doctors not to
implement them. In response, WA has stated that it will help athletes who wish
to follow the regulations to identify doctors willing to ignore medical ethics
guidelines.
Flawed science and ethical violations are
obviously issues that go far beyond the case of Caster Semenya, and far beyond
sport. In any normal system of jurisprudence such issues would prove readily
fatal to regulatory action, either in the first instance of proposed
implementation or via review and reconsideration.
Sport governance lacks such processes. At
CAS, the panel claimed that matters of scientific integrity and medical ethics
were outside their remit. The SFT is allowed to reconsider a CAS decision only
on narrow procedural grounds, and thus also cannot consider matters of
scientific integrity or medical ethics. So far then, the flaws in the WA
regulations – sitting in plain sight and obvious to anyone who looks, have not
been correctable.
This leaves the world of sport governance
in a compromised position. Some may look past the scientific and ethical issues
here, perhaps judging that barring Semenya from sport is far more important
that correcting such wrongs.
Regardless of one’s views on sex and gender
classification in sport, the WA regulations and the processes that produced and
have challenged them reveal that sports governance has not yet entered the 21st
century. Science and ethics matter, and they should matter in sport
jurisprudence as well. It is time to
correct this basic design flaw in international sport governance.