Editor's note: Saverio Paolo Spera is an Italian qualified attorney-at-law. He holds an LL.M. in international business law from King’s College London. He is the co-founder of SP.IN Law, a Zurich based international sports law firm. Jacques Blondin is an Italian qualified attorney, who held different roles at FIFA, including Head of FIFA TMS and Head of FIFA Regulatory Enforcement. He is the co-founder of SP.IN Law. The Authors wish to disclaim that they have represented Ms. Nayoka Clunis before the Court of Arbitration for Sport in Lausanne in the context of the proceedings which led to the Award of 31 July 2024.
Every four years since more than a century,[1] a spectacular display of sportsmanship takes place over the course of a few weeks during the summer: the Olympic Games.[2]
For thousands of athletes around the globe, the Olympic Games are “the pinnacle of success and the ultimate goal of athletic competition”.[3] In their quest to compete in the most important stage of their sport, they endure demanding and time-consuming efforts (often including considerable financial sacrifices). These endeavours occasionally lead to everlasting glory (the exploits of athletes of the calibre of Carl Lewis, or more recently, Usain Bolt[4] still resonate among sports’ observers), more often to a shorter gratification. Whether their gestures end up going down the sport’s history books or last the span of a few competitions, athletes are always the key actors of a magnificent event that continues to feed the imagination of generations of sports fans.
And yet, situations may occur when athletes find themselves at the mercy of their respective federations in the selection process for the Olympic Games and, should the federations fail them (for whatever reason), face an insurmountable jurisdictional obstacle to have their voice heard by the only arbitral tribunal appointed to safeguard their rights in a swift and specialised manner: the Court of Arbitration for Sport (the “CAS”).[5]
This is the story of Nayoka Clunis, a Jamaican world class hammer throw athlete who had qualified for the Olympic Games of Paris 2024 and yet, due to no fault of her own, could not participate in the pinnacle of competitions in her sport. Though eligible in light of her world ranking, she was failed by her own federation[6] [AD1] [SPS2] and ultimately found herself in the unfortunate – but legally unescapable – vacuum whereby neither the CAS Ad Hoc Division in Paris nor the ‘regular’ CAS division in Lausanne had jurisdiction to entertain her claim.
The aim of this paper is not to discuss whether Ms. Clunis would have had a chance to successfully prove her claims and compete in Paris had her case been heard on the merits, nor to debate about the appropriateness of a national federation’s selection process (also because Ms. Clunis never challenged it, having been eligible ‘from day one’).[7] Retracing the story of a sportswoman’s dramatic misfortune, this paper aims at providing an opportunity to reflect on how effective the safeguard of athletes’ rights in the context of the Olympic Games actually is. More...
Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.
On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.
These judgments were much scrutinised (see here, here and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...
During the 2023/2024 academic year, the Asser International Sports Law Centre will dedicate special attention to the intersection between transnational sports law and governance and gender. This online discussion is the first of a series of (online and offline) events which will explore the way in which international SGBs and the CAS define the gender divide in international sports, police gender-based abuses, and secure gender-specific rights to athletes.
Caster Semenya, a South-African runner and Olympic champion, was dominating her favorite distance, the 800m, for a number of years, when in 2018 the World Athletics (then known as IAAF) adopted a new set of regulations (colloquially known as the DSD Regulations), which imposed new conditions to the eligibility of athletes for certain female competitions, such as the 800m. Semenya, who has a condition known as differences in sex development (DSD), was forced to decide between subjecting to a specific medical treatment aimed at diminishing the level of testosterone in her body or stopping competing on her preferred distance. As she refused to undergo any medical treatment to regain eligibility, she decided to challenge the legality of World Athletics DSD Regulations before the CAS in Lausanne. While the CAS acknowledged that the Regulations were discriminatory and were disregarding the legal sex of Semenya in the name of a so-called sporting sex, the arbitrators also considered that this discrimination was justified and proportionate. Semenya’s challenge against the award was rejected by the Swiss Federal Tribunal (SFT) in August 2020. As a last resort, she decided to lodge an application with ECtHR against Switzerland.
On 11 July 2023, the ECtHR released its judgment in the much-awaited Caster Semenya v. Switzerland case. In short, the Strasbourg Court sided with Semenya and concluded that Switzerland failed to comply with its positive obligations stemming from the European Convention on Human Rights. The ruling is an important milestone in the interaction between the CAS and (European) human rights law. It will likely affect the place of human rights (and in particular the ECHR) at the CAS, the intensity of the supervision exercised by the SFT, as well as the justification of the regulatory decisions of the SGBs. We look forward to discussing these with our two speakers, who have followed closely the case and already blogged (here and here) about the judgment:
The online discussion will be introduced and moderated by Dr. Antoine Duval and Dr. Daniela Heerdt, and will include short presentations by the speakers and a Q&A with the audience.
Registration is available for free at: https://www.asser.nl/education-events/events/?id=4325
Editor’s note:Pedro is an intern at the Asser Institute and
currently studying the Erasmus Mundus Master Degree in Sports Ethics and
Integrity (KU Leuven et al.) He was one of the participants of the first
edition of the Summer Programme on Sports Governance and Human Rights.
In early September, the first Summer Programme on the Governance of Sport and
Human Rights took
place at the Asser Institute. During one week, various experts in the field
presented different lectures to a very diverse group of participants with a
wide range of professional backgrounds. Being a participant myself, I would
like to reflect on this one-week course and share what I learned. More...
On Thursday 14 October 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), will be launching the second season of the Zoom-In webinar series, with a first episode on Diversity at the Court of Arbitration for Sport: Time for a Changing of the Guard?
The Court of Arbitration for Sport (CAS) is a well-known mainstay of
global sport. It has the exclusive competence over challenges against
decisions taken by most international sports governing bodies and its
jurisprudence covers a wide range of issues (doping, corruption,
match-fixing, financial fair play, transfer or selection disputes)
including disciplinary sanctions and governance disputes. In recent
years, the CAS has rendered numerous awards which triggered world-wide
public interest, such as in the Semenya v World Athletics case or the
case between WADA and RUSADA resulting from the Russian doping scandal
(we discussed both cases in previous Zoom-In discussion available here and here). In short, the CAS has tremendous influence on the shape of global sport and its governance.
However, as we will discuss during this webinar, recent work has
shown that the arbitrators active at the CAS are hardly reflective of
the diversity of people its decisions ultimately affect. This in our
view warrants raising the question of the (urgent) need to change the
(arbitral) guard at the CAS. To address these issues with us, we have
invited two speakers who have played an instrumental role in putting
numbers on impressions widely shared by those in contact with the CAS:
Prof. Johan Lindholm (Umea University) and attorney-at-law Lisa Lazarus (Morgan Sports Law). Johan recently published a ground-breaking monograph on The Court of Arbitration for Sport and Its Jurisprudence
in which he applies empirical and quantitative methods to analyse the
work of the CAS. This included studying the sociological characteristics
of CAS arbitrators. Lisa and her colleagues at Morgan Sports Law very
recently released a blog post on Arbitrator Diversity at the Court of Arbitration for Sport,
which reveals a stunning lack of diversity (based on their
calculations, 4,5% of appointed CAS arbitrators are female and 0,2% are
black) at the institution ruling over global sport.
Guest speakers:
Moderators:
Register for free HERE.
Zoom In webinar series
In December 2020, The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret launched a new series of zoom webinars on transnational sports law: Zoom In. You can watch the video recordings of our past Zoom In webinars on the Asser Institute’s Youtube Channel.
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...
On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar
on the recent developments arising from the decision of the Swiss
Federal Tribunal (SFT) in the case Caster Semenya v. International
Association of Athletics Federations (now World Athletics), delivered on
25 August 2020.
Background
The participation of athletes with
biological sex differences to international competitions is one of the
most controversial issues in transnational sports law. In particular,
since 2019, Caster Semenya, an Olympic champion from South-Africa has
been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development
(DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at
reducing her testosterone levels. In April 2019, the Court of
Arbitration for Sport rejected her challenge against the DSD Regulation
in a lengthy award.
In response, Caster Semenya and the South African Athletics Federation filed
an application to set aside the award before the Swiss Federal Tribunal.
In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).
Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application
at the European Court of Human Rights (ECtHR) against Switzerland on
the basis of this judgment. In this context, we thought it important to
organise a Zoom In webinar around the decision of the SFT and
the pending case before the ECtHR. Indeed, should the ECtHR accept the
case, it will be in a position to provide a definitive assessment of the
human rights compatibility of the DSD Regulation. Moreover, this
decision could have important consequences on the role played by human
rights in the review of the private regulations and decisions of
international sports governing bodies.
Speakers
Participation is free, register HERE.
On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar
on the recent award of the Court of Arbitration for Sport (CAS) in the
case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency
(RUSADA), delivered on 17 December 2020.
Background
In its 186 pages decision
the CAS concluded that RUSADA was non-compliant with the World
Anti-Doping Code (WADC) in connection with its failure to procure the
delivery of the authentic LIMS data (Laboratory Information Management
System) and underlying analytical data of the former Moscow Laboratory
to WADA. However, the CAS panel did not endorse the entire range of
measures sought by WADA to sanction this non-compliance. It also reduced
the time frame of their application from four to two years. The award
has been subjected to a lot of public attention and criticisms, and some
have expressed the view that Russia benefited from a lenient
treatment.
This edition of our Zoom in webinars will focus on assessing the
impact of the award on the world anti-doping system. More specifically,
we will touch upon the decision’s effect on the capacity of WADA to
police institutionalized doping systems put in place by certain states,
the ruling’s regard for the rights of athletes (Russian or not), and its
effect on the credibility of the world anti-doping system in the eyes
of the general public.
To discuss the case with us, we are very happy to welcome the following speakers:
Participation is free, register HERE.