Editor's note: Andy Brown is a freelance journalist who has been writing about the governance of sport for over 15 years. He is the editor of The Sports Integrity Initiative where this blog appeared first.
For the last three days, I have been struggling with what to write regarding the Swiss Federal Tribunal’s (SFT) Decision to dismiss a challenge from Caster Semenya and Athletics South Africa (ASA) against the Court of Arbitration for Sport’s (CAS) Decision
to dismiss a challenge to the Eligibility Regulations for the Female
Classification (Athletes with Differences of Sex Development), otherwise
known as the DSD Regulations. From reading World Athletics’ statement
welcoming the ruling, one could be forgiven for thinking that it had
won a major trial. Sports journalists, accustomed to covering events now
curtailed by Covid-19, focus on the fact that Semenya has ‘lost’ her case against the DSD Regulations. Neither assertion is strictly accurate.
The SFT’s powers to review the CAS’s ruling are severely limited. It can only consider whether the CAS Decision violates ‘widely recognised principles of public order’
on Swiss public policy grounds. The SFT has only reversed a decision
based on a a violation of Swiss public policy once in 30 years.
The SFT didn’t reconsider the evidence put forward to the CAS. ‘For
there to be incompatibility with public policy, it is not enough that
the evidence has been poorly assessed, that a finding of fact is
manifestly false or that a rule of law has been clearly violated’, its Decision reads. ‘The
only question to be resolved is in fact whether or not the verdict of
the CAS renders the referred award incompatible with substantive public
policy’.
There were questions about whether the appeal from Semenya and ASA
qualified to be reviewed by the SFT in the first place. World Athletics
is a private organisation headquartered in Monaco, and the SFT was
troubled as to whether such a complaint brought by a South African
athlete against an overseas private organisation is capable of violating
Swiss public policy.
‘It is doubtful whether the prohibition of discriminatory
measures falls within the scope of the restrictive concept of public
order when the discrimination is committed by a private person and
occurs in relations between individuals’, the Decision quotes from its pervious 29 July 2019 Decision, which refused the ASA’s request to provisionally suspend the application of the DSD Regulations. ‘In any event, there is no need to examine this question further here since […] the award under appeal does not in any way establish discrimination which would be contrary to public order’.
The SFT ruled that the CAS was correct to uphold conditions of
participation for 46 XY DSD athletes in order to guarantee fair
competition for certain disciplines in female athletics. In doing so,
the SFT was ruling on whether the decision taken by the CAS violates
public policy, based only on the complaints brought forward by Semenya
and ASA.
Semenya and the ASA had challenged the CAS Decision based around the
idea that the DSD Regulations are discriminatory. The CAS held that they
are discriminatory, but agreed with the IAAF (as World Athletics was
then named) that such discrimination was necessary to protect its female
category. The SFT ruled that even if the discriminatory rules of a
private organisation such as the IAAF were considered able to pose a
threat to public order, Semenya and the ASA had failed to demonstrate
that the CAS Decision was so egregious that it posed such a threat.
‘Caster Semenya essentially alleges a violation of the prohibition of discrimination’, reads the Swiss Federal Supreme Court statement.
‘The CAS has issued a binding decision based on the unanimous opinion
of the experts who were consulted that testosterone is the main factor
for the different performance levels of the sexes in athletics;
according to the CAS, women with the “46 XY DSD” gene variant have a
testosterone level comparable to men, which gives them an insurmountable
competitive advantage and enables them to beat female athletes without
the “46 XY DSD” variant. Based on these findings, the CAS decision
cannot be challenged. Fairness in sport is a legitimate concern and
forms a central principle of sporting competition. It is one of the
pillars on which competition is based. The European Court of Human
Rights also attaches particular importance to the aspect of fair
competition. In addition to this significant public interest, the CAS
rightly considered the other relevant interests, namely the private
interests of the female athletes running in the “women” category.’
Such strong support for the principle behind its DSD Regulations was rightly welcomed by World Athletics. Its statement asserted that the SFT ‘acknowledged that innate characteristics can distort the fairness of competitions’.
I would argue that the SFT ruling didn’t do this, but rather found that
a CAS Decision asserting this didn’t violate Swiss public policy.
Semantics, perhaps.
Likewise, when World Athletics quotes the SFT Decision as confirming that ‘It
is above all up to the sports federations to determine to what extent a
particular physical advantage is likely to distort competition and, if
necessary, to introduce legally admissible eligibility rules to remedy
this state of affairs’, it is paraphrasing two texts quoted in the SFT Decision. The first is ‘La qualification juridique des rules autonomes des organizations sportive’ by Jérôme Jaquier, 2004. ‘Inborn characteristics specific to athletes in a particular group can also distort the fairness of competition’, the SFT Decision quotes from Jaquier. ‘When they enact regulations, the objective of sports federations is to ensure fair and equitable competition’.
The context of the second quote, from ‘Sportrecht – Berücksichtigung der Interessen des Sports in der Rechtsordnung’
by Martin Kaiser, 2011, is even more interesting. It is preceded with a
statement from the Swiss Federal Supreme Court, which reads: ‘It is
not for the Federal Court to make, abstractly, comparisons between the
disciplines to assess whether a particular athlete has an advantage that
makes sporting competition meaningless’.
‘It is above all for the sporting federations to determine to
what extent a particular physical advantage is liable to distort
competition’, the SFT Decision quotes from Kaiser. ‘And, if so, to establish legally admissible eligibility rules to remedy this state of affairs’.
Again, such details might be considered as semantics. But – I would
argue – important semantics. Reading the media maelstrom that has
resulted from the SFT Decision, one could be forgiven for assuming that
Semenya has lost her case, and has no chance of ever defending her 800m
title. However, a statement issued by her lawyers reveals that she intends to challenge the ruling in European and domestic courts.
“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am”, the statement continues. “Excluding
female athletes or endangering our health solely because of our natural
abilities puts World Athletics on the wrong side of history. I will
continue to fight for the human rights of female athletes, both on the
track and off the track, until we can all run free the way we were born.
I know what is right and will do all I can to protect basic human
rights, for young girls everywhere.” More...