Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Will the World Cup 2022 Expansion Mark the Beginning of the End of FIFA’s Human Rights Journey? - By Daniela Heerdt

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...



How Data Protection Crystallises Key Legal Challenges in Anti-Doping - By Marjolaine Viret

Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.


Since the spectre of the EU General Data Protection Regulation (‘GDPR’) has loomed over the sports sector,[1] a new wind seems to be blowing on anti-doping, with a palpable growing interest for stakes involved in data processing. Nothing that would quite qualify as a wind of change yet, but a gentle breeze of awareness at the very least.

Though the GDPR does mention the fight against doping in sport as a potential matter of public health in its recitals,[2] EU authorities have not gone so far as to create a standalone ground on which anti-doping organisations could rely to legitimise their data processing. Whether or not anti-doping organisations have a basis to process personal data – and specifically sensitive data – as part of their anti-doping activities, thus remains dependent on the peculiarities of each national law. Even anti-doping organisations that are incorporated outside the EU are affected to the extent they process data about athletes in the EU.[3] This includes international sports federations, many of which are organised as private associations under Swiss law. Moreover, the Swiss Data Protection Act (‘DPA’) is currently under review, and the revised legal framework should largely mirror the GDPR, subject to a few Swiss peculiarities. All anti-doping organisations undertake at a minimum to abide by the WADA International Standard for Privacy and the Protection of Personal Information (‘ISPPPI’), which has been adapted with effect to 1 June 2018 and enshrines requirements similar to those of the GDPR. However, the ISPPPI stops short of actually referring to the GDPR and leaves discretion for anti-doping organisations to adapt to other legislative environments.

The purpose of this blog is not to offer a detailed analysis of the requirements that anti-doping organisations must abide by under data protection laws, but to highlight how issues around data processing have come to crystallise key challenges that anti-doping organisations face globally. Some of these challenges have been on the table since the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but are now exposed in the unforgiving light of data protection requirements. More...



What happens in Switzerland stays in Switzerland: The Striani Judgment of the Brussels Court of Appeals

In the last five years, the Striani case has been the main sword of Damocles hanging over UEFA’s Financial Fair Play Regulations. At the very least, the only real judicial threat they have faced (apart from the relatively harmless challenge mounted in the Galatasaray case at the CAS). Indeed, a Belgian player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s CL&FFP Regulations with EU law. Striani lodged a complaint with the European Commission (which was quickly rejected in October 2014) and initiated a private action for damages before the Brussels Court of First Instance. The latter deemed itself not competent to decide on the matter, but nevertheless accepted to order a provisory stay of the enforcement of the UEFA FFP Regulations pending a preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s blog on the case here). The CJEU unsurprisingly rejected to enter into the matter, but UEFA and Striani decided to appeal the first instance ruling to the Court of Appeal, which rendered its decision on 11 April. It is unclear at this stage whether Striani will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil Court), however this would entail considerable risks and costs and his lawyers to date have not indicated that they would do so (see here). 

While the ruling of the Court of Appeal does not touch upon the much-discussed question of the compatibility of UEFA’s FFP Regulations with EU law (see our many blogs on the question here, here and here), it remains an interesting decision to discuss broader questions related to the procedural ease in challenging regulatory decisions passed by sports governing bodies (SGBs) based in Switzerland. Competition law constitutes the main legal tool available to sports stakeholders looking to challenge existing regulatory arrangements from the outside (e.g. not going through the internal political systems of the SGBs or the CAS route). Recent cases, such as the ISU decision of the European Commission, the Pechstein case in front of the German courts or the Rule 40 decision of the German competition authority, have demonstrated the potency of competition law to question the legality of the rules and decisions of the SGBs.[1] In this regard, the decision of the Brussels Court of Appeal narrows the range of parties allowed to challenge in European courts the SGBs’ rules and decisions on the basis of competition law. More...

Can European Citizens Participate in National Championships? An Analysis of AG Tanchev’s Opinion in TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. - By Thomas Terraz

Editor’s note: Thomas Terraz is a third 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

To many it may seem obvious that athletes in a national championship should only be able to participate if they have the nationality of the relevant state. The Dutch Road Cycling National Championships should have Dutch cyclists, and the German Athletics Championships should have German athletes and so forth. However, in reality, foreign competitors are allowed to participate in many national championships in the EU, and there is a wide discrepancy between the rules of national sport governing bodies on this issue. There is no unified practice when investigating this point by country or by sport, and rules on participation range from a complete ban on foreign competitors to absolutely no mention of foreign athletes.[1] Thus, the question arises: should foreign athletes be able to participate in national sport championships?

The Court of Justice of the European Union (CJEU) will soon be required to provide an, at least partial, answer to this dilemma as a result of an application for a preliminary ruling.  A German Court has referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU citizenship rights and in particular, the requirement of non-discrimination on the basis of nationality, should be applied to non-nationals wishing to participate in an athletics national championship in Germany. In the meantime, the Advocate General (AG), who provides a non-binding opinion to the Court before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants based on EU citizenship rights and urges the CJEU to instead review the case on the basis of the freedom of establishment.

This blog will dissect the AG’s opinion to assess the main arguments put forward in relation to freedom of establishment and EU citizenship. Furthermore, it will weigh the ramifications this case may have on the boundaries of EU law in relation to sport. To fully appreciate the AG’s opinion, it is necessary to first discuss the intriguing factual and legal background colouring this case. After all, this will not be the first time the CJEU faces thorny issues concerning discrimination on the basis of nationality and sport. More...


International and European Sports Law – Monthly Report – February and March 2019. By Tomáš Grell

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 Court of Arbitration for Sport bans 12 Russian track and field athletes

On 1 February 2019, the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the seemingly endless saga concerning the state-sponsored doping programme in Russia. These first-instance decisions of the CAS involve 12 Russian track and field athletes who were all found guilty of anti-doping rule violations based on the evidence underlying the reports published by professor Richard McLaren and suspended from participating in sports competitions for periods ranging from two to eight years. Arguably the most prominent name that appears on the list of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the 2012 Olympic Games in London.

The case was brought by the International Association of Athletics Federation (IAAF) that sought to convince the arbitrators that the athletes in question had participated in and/or benefited from anabolic steroid doping programmes and benefited from specific protective methods (washout schedules) in the period between the 2012 Olympic Games in London and the 2013 IAAF World Championships in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that remains suspended and thus unable to conduct any disciplinary procedures. The athletes have had the opportunity to appeal the decisions to the CAS Appeals Arbitration Division.

Federal Cartel Office in Germany finds Rule 40 of the Olympic Charter disproportionately restrictive

At the end of February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with the German Olympic Sports Confederation (DOSB) and the International Olympic Committee (IOC) in which these two organisations had agreed to considerably enhance advertising opportunities for German athletes and their sponsors during the Olympic Games. The respective agreement is a direct consequence of the Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant position on the market for organising and marketing the Olympic Games by demanding that the athletes refrain from promoting their own sponsors while the Games are ongoing, as well as shortly before and after the Games. This restriction stems from Rule 40(3) of the Olympic Charter under which no competitor who participates in the Games may allow his person, name, picture or sports performances to be used for advertising purposes, unless the IOC Executive Board allows him/her to do so.

As part of fulfilling its obligations under the commitment agreement, the DOSB has relaxed its guidelines on promotional activities of German athletes during the Olympic Games. For its part, the IOC has declared that these new guidelines would take precedence over Rule 40(3) of the Olympic Charter. However, it still remains to be seen whether in response to the conclusions of the German competition authority the IOC will finally change the contentious rule.

The Grand Chamber of the European Court of Human Rights refuses to pronounce itself on Claudia Pechstein’s case

Claudia Pechstein’s challenge against the CAS brought before the European Court of Human Rights (ECtHR) has not yielded the desired result for the German athlete. On 5 February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This means that the judgment handed down by the 3rd Chamber of the ECtHR on 2 October 2018, in which the ECtHR confirmed that except for the lack of publicity of oral hearings the procedures of the CAS are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights, has now become final and binding. However, the protracted legal battle between the five-time Olympic champion in speed skating and the CAS is not over yet since there is one more challenge against the CAS and its independence pending before the German Constitutional Court.  More...

New Event! FIFA and Human Rights: Impacts, Policies, Responsibilities - 8 May 2019 - Asser Institute

In the past few years, FIFA underwent intense public scrutiny for human rights violations surrounding the organisation of the World Cup 2018 in Russia and 2022 in Qatar. This led to a reform process at FIFA, which involved a number of policy changes, such as:

  • Embracing the United Nations Guiding Principles on Business and Human Rights;
  • The inclusion of human rights in the FIFA Statutes;
  • Adopting new bidding rules including human rights requirements;
  • And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the Netherlands Network for Human Rights Research (NNHRR), are organising a conference on the Fédération Internationale de Football Association (FIFA) and human rights, which will take place at the Asser Institute in The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s impacts on human rights and critically investigate the measures it has adopted to deal with them. Finally, we will also address FIFA’s potential legal responsibilities under a variety of human rights laws/instruments.


Preliminary Programme

9:00 Registration & Coffee

9:45 Welcome by Antoine Duval (Asser Institute) & Daniela Heerdt (Tilburg University)

10:00 Opening Remarks by Andreas Graf (Human Rights Officer, FIFA)

10:30 Panel 1: FIFA & Human Rights: Impacts

  • Zoher Shabbir (University of York) – The correlation between forced evictions and developing nations hosting the FIFA World Cup
  • Roman Kiselyov (European Human Rights Advocacy Centre) - FIFA World Cup as a Pretext for a Crackdown on Human Rights
  • Eleanor Drywood (Liverpool University) - FIFA and children’s rights: theory, methodology and practice 

12:00 Lunch

13:00 Panel 2: FIFA & Human Rights: Policies

  • Lisa Schöddert & Bodo Bützler (University of Cologne) – FIFA’s eigen-constitutionalisation and its limits
  • Gigi Alford (World Players Association) - Power Play: FIFA’s voluntary human rights playbook does not diminish Switzerland’s state power to protect against corporate harms
  • Brendan Schwab (World Players Association) & Craig Foster - FIFA, human rights and the threatened refoulement of Hakeem Al Araibi 

14:30 Break

15:00 Panel 3: FIFA & Human Rights: Responsibilities

  • Daniel Rietiker (ECtHR and University of Lausanne) - The European Court of Human Rights and Football: Current Issues and Potential
  • Jan Lukomski (Łukomski Niklewicz law firm) - FIFA and the International Covenant on Economic, Social and Cultural Rights : Obligations, duties and remedies regarding the labour rights         protected under the ICESCR
  • Raquel Regueiro Dubra (Complutense University of Madrid) - Shared international responsibility for human rights violations in global events. The case of the 2022 World Cup in Qatar.
  • Wojciech Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer the new Bosman? – The implications of the newest CJEU jurisprudence for FIFA and other sport governing bodies

17:00 Closing Remarks by Mary Harvey (Chief Executive, Centre for Sports and Human Rights)


More information and registration at https://www.asser.nl/education-events/events/?id=3064

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 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.  

 

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Upcoming Events

Call for papers - Third Annual International Sports Law Conference of the International Sports Law Journal - 24 and 25 October 2019 - Asser Institute

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on International Sports Law, which will take place on 24 and 25 October 2019 at the Asser Institute in The Hague. The ISLJ, published by Springer and Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports with renowned academic experts and practitioners.


We are delighted to announce the following confirmed keynote speakers:


  • Beckie Scott (Chair of the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former member of the WADA Executive Committee and the International Olympic Committee (IOC)),
  • Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator), and
  • Kimberly Morris (Head of FIFA Transfer Matching System (TMS) Integrity and Compliance).


We welcome abstracts from academics and practitioners on any question related to international sports law. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes:


  • The role of athletes in the governance of international sports
  • The evolution of sports arbitration, including the Court of Arbitration for Sport
  •  The role and functioning of the FIFA transfer system, including the FIFA TMS
  •  The intersection between criminal law and international sports (in particular issues of corruption, match-fixing, human trafficking, tax evasion)
  • Hooliganism
  • Protection of minor athletes
  • Civil and criminal liability relating to injuries in sports


Please send your abstract of 300 words and CV no later than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.


The selected participants will be expected to submit a draft paper by 1 September 2019. All papers presented at the conference are eligible (subjected to peer-review) for publication in a special issue of the ISLJ.  To be considered for inclusion in the conference issue of the journal, the final draft must be submitted for review by 15 December 2019.  Submissions after this date will be considered for publication in later editions of the Journal.


The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant please indicate it in your submission. 

A Reflection on the Second Report of FIFA’s Human Rights Advisory Board - By Daniela Heerdt (Tilburg University)

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands and works as Research Officer for the Centre for Sports and Human Rights. 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 an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

 

On November 26th, the Human Rights Advisory Board[1] of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory Board (hereinafter: the Board) based on the content of the recommendations and FIFA’s efforts to implement the Board’s recommendations. The third part of this blog briefly reflects on the broader implications of some of the new recommendations issued for FIFA’s internal policies. The conclusion provides five more general points of observation on the report. More...

Asser International Sports Law Blog | SFT rejects Semenya appeal: nothing changes - By Andy Brown

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

SFT rejects Semenya appeal: nothing changes - By Andy Brown

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.”

Men vs. Women 

World records prove that men run faster and throw further than women. As explained in the CAS Decision, the IAAF modified the DSD Regulations to exclude XX athletes from their scope. By doing this, it was able to frame the DSD Regulations as mitigating any advantage held by ‘biologically male’ athletes in international events run between 400m and one mile in its female category.

Caster Semenya fits the IAAF definition as ‘biologically male’, as she has one of the five DSDs outlined in the DSD Regulations, and competes in the Restricted Events. Semenya’s status as a 46 XY DSD athlete was confirmed by the Swiss Federal Supreme Court on 29 July 2019, when it revoked a supra-provisional suspension of the application of the DSD Regulations to Semenya. ‘Mokgadi Caster Semenya is an “athlete concerned” within the meaning of Article 2.2 of the DSD Regulations’, reads its 29 July interlocutory order (available here in French).

The Semenya case isn’t exclusively about whether men should be able to line up against women in female events – although the debate has sometimes been framed that way. Caster Semenya is a woman, who has been outed as having a DSD by World Athletics’ relentless case against her, which began when she was 18 (she is now 29). She is a 46 XY karyotype woman who has been very successfully competing (and this is not insignificant) against 46 XX karyotype women.

The Semenya case is firstly about whether World Athletics has conclusively proven that women who are 46 XY DSD karyotype hold a significant advantage in the events the rules cover. Secondly, it is also about whether it has proven that such an advantage is so great that it renders competition between female and DSD athletes in the covered events meaningless.

Such an argument should always be decided scientifically. The SFT Decision doesn’t do that. There were serious concerns about the scientific evidence used to support the DSD Regulations both before, during, and after the CAS Decision. Although we have been through some of these concerns before, they are worth restating, as they have yet to be addressed.

There are also concerns about the way in which sport’s rules and regulations have been moulded and changed in order to accommodate the DSD Regulations. They have also not been addressed. But, firstly, it is important to explain what the DSD Rules seek to regulate and why.

The DSD Rules

The DSD Rules, as they have been called since November 2019 (PDF below), cover athletes with one of five listed DSDs competing in international events run between 400m and one mile in World Athletics’ female category, if their endogenous (natural) testosterone levels are above 5nmol/L and have an ‘androgenising effect’ (i.e. if that testosterone is taken up by their androgen receptors and boosts their physiology). Athletes who meet these conditions must use hormonal contraceptives to reduce their testosterone levels to below 5 nmol/L for six months prior to competing, and must maintain testosterone levels at below 5 nmol/L in order to continue competing.

Testosterone is a natural, endogenous (internally produced) steroidal hormone. In the XY karyotype, it is understood that testosterone is the single primary hormone driving the endocrine system, a chemical messaging system that regulates the physiology. In the XX karyotype, it is understood that two primary hormones – oestrogen and progesterone – perform the same function, along with testosterone in much smaller amounts. 

The logic behind the DSD Rules – explained during Semenya’s challenge to them – is that DSD athletes develop an unfair advantage over XX karyotype women due to the continued action of ‘elevated’ testosterone on their XY karyotype physiology from puberty onwards. I have termed this a ‘legacy advantage’, since not every DSD athlete will automatically become an elite runner between 800m and one mile in World Athletics’ female category. Correct diet, dedication, and training over time is also required.  

The DSD Rules seek to reconcile this ‘legacy advantage’ by requiring medical intervention in the present. It could be argued that World Athletics is medically handicapping DSD athletes in the present for an advantage they have strived to develop over time. But as explained, the SFT was not required to consider that conundrum.

‘Affected athletes can either (a) take a daily oral contraceptive pill; or (b) take a monthly injection of a GnrH agonist; or (c) have their testes surgically removed (a ‘gonadectomy’)’, reads Briefing Notes on the Rules published by World Athletics. ‘It is their choice whether or not to have any treatment, and (if so) which treatment to have. In particular, the IAAF does not insist on surgery. The effects of the other two treatments are reversible if and when the athlete decides to stop treatment. Importantly, lowering testosterone in one of these ways is the recognised ‘gender-affirming’ standard of care for any individual (athlete or not) who is 46 XY but has a female gender identity.’

As explained above, the SFT couldn’t make any determination about whether it was ethical to require a 46 XY DSD athlete who is not unwell to take a contraceptive pill designed for 46 XX karyotype females. The CAS did recognise this issue, and found that there were serious side effects on 46 XY DSD individuals who used contraceptive pills designed for XX females to lower their endogenous (internally produced) testosterone to below 10 nmol/L (the DSD Rules set an upper limit of 5 nmol/L).

‘Ms. Semenya described the negative effects that the testosterone-suppressing medication had on her mental and physical health’, reads para.78 of the CAS Decision. ‘Her symptoms included becoming hot and sweating profusely each night and experiencing significant weight gain. She also felt sick constantly, suffered from regular fevers and had constant internal abdominal pain. These symptoms also had an “enormous” effect on her mental state, impeding her mental sharpness and undermining her self-confidence.’

In the XY karyotype, testosterone is the only hormone driving the endocrine system that regulates an individual’s physiology. Therefore, it is understood that reducing it is likely to make people unwell. As the CAS and SFT decisions recognise, XY karyotype individuals typically have circulating testosterone between 7.7 nmol/L to 29.4 nmol/L. 

Of course, reducing this to 5 mol/L will make an XY karyotype athlete slower. This is because the only natural hormone driving the XY karyotype endocrine system, which supports their physiology, has been seriously curtailed. The same effect cannot be replicated in the XX karyotype, since three hormones drive the endocrine system and a much lower baseline level of testosterone (0.06 nmol/L to1.68 nmol/L) exists in the first place. 

This is why testosterone deficiency is a recognised as a medical condition that can make XY karyotype people unwell. DSD athletes are XY karyotype, as the IAAF made clear during its arguments against Semenya’s appeal at the CAS. Other XY karyotype athletes, such as Kristen Worley and Sloan Teeple, have also been made unwell due to sport’s rules on testosterone, as have certain DSD athletes who underwent a horrific experience ahead of the London 2012 Olympics. Shockingly, the IAAF used the experience of these medically damaged athletes as evidential support that the DSD Regulations are effective in making 46 XY DSD athletes slower!

Unlike XY karyotype individuals who are transitioning to become XY females, 46 XY DSD athletes usually do not wish to change their physiology through hormonal modification. Their testosterone levels are not ‘elevated’, to borrow World Athletics’ description, but are normal for their karyotype. World Athletics requires them to reduce the primary stimulus for their endocrine system to levels consistent with the XX karyotype in order to compete in events run between 400m and one mile in its female category. 

World Athletics requires 46 XY DSD athletes to undergo potentially damaging hormonal treatment to compete in its female category. Arguably, it requires athletes to ‘feminise’ themselves.

As explained above, this is likely to make 46 XY karyotype athletes unwell, although the SFT didn’t have to examine whether the CAS had assessed this danger sufficiently. Nowhere in the DSD Regulations, or in the Explanatory Notes, is there any mention of measures taken to monitor an athlete’s health after her natural testosterone levels are reduced to below 5 nmol/L.

Show me the science

As detailed in this article, there were two major pieces of scientific evidence used to support the DSD Regulations. The first is 2017’s Paper One, entitled ‘Serum androgen levels and their relation to performance in track and field: mass spectrometry results from 2127 observations in male and female athletes’. Paper Two, published in 2018, is ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’.

Paper One has a number of significant issues, discussed in this article under ‘Scientific evidence on performance advantage’. In short, the Paper found a correlation between XX karyotype females with elevated free testosterone and performance at the Daegu 2011 and Moscow 2013 IAAF World Championships, events which were marred by doping. Among the 1,332 female observations in the study, just nine were 46 XY DSD.

Paper Two also has a number of significant issues, detailed under ‘The 2018 Study’ in this article. In short, evidence for increases in muscle mass and strength appear to come from a 2014 Study performed on 62 XX karyotype post-menopausal women (mean age, 53) who had undergone a hysterectomy; it references several other studies in order to support the proposition that DSD athletes benefit from increases in circulating testosterone that increases circulating haemoglobin, which in turn translates to an increase in oxygen transfer; and compares endogenous testosterone levels with increases in muscle mass and strength.

One of the studies it relies on is a 2017 Study examining women with Congenital Adrenal Hyperplasia (CAH), a condition in which the adrenal gland can produce more testosterone. The Study found that in women with CAH, erythropoiesis may be driven by androgens. The proposition is that as DSD athletes have higher levels of testosterone (an androgen), they benefit from increased erythropoiesis (production of oxygen-carrying red blood cells). 

On 9 January 2019, shortly before the CAS hearing on 26 February, the IAAF removed CAH and a CAH variant from the scope of the Regulations. It did so because, in the IAAF’s words, ‘individuals with these DSDs only have high testosterone levels if their adrenal conditions are uncontrolled, in which case they would suffer side-effects that would make elite sports performance impossible’

Yet as explained above, a study examining XX karyotype women with CAH had been used as part of the IAAF’s evidence base in support of the Regulations. It would appear that by carving XX karyotype women and CAH out from the scope of the Regulations, the IAAF negated part of its own evidence base. 

There is more information about scientific inaccuracies in the evidence used to support the DSD Rules here; here; and here. In addition, as previously mentioned, World Athletics used data from athletes medically damaged by its Hyperandrogenism Regulations – the forerunner to the DSD Rules – to prop up the DSD Rules. 

The issue is not that World Athletics hasn’t proven that 46 XY karyotype athletes can run faster or throw further than 46 XX karyotype athletes. Anybody with access to Wikipedia can do that. It is whether World Athletics has proven that by virtue of the effects of testosterone on the 46 XY DSD physiology from puberty onwards, 46 XY DSD athletes have been able to develop an advantage that is so significant that it should be considered unfair in the specific international female events that World Athletics targets. It is here that scientists argue World Athletics falls short (see the Twitter threads here and here).

Moving the goalposts

As already mentioned, today’s DSD Rules are not the same as the DSD Regulations that Semenya challenged. The IAAF amended the DSD Regulations both before and after the CAS heard Semenya’s case against them. The result was that shortly before the CAS hearing, the DSD Regulations applied to five disciplines rather than the seven referred to in the CAS judgment.

World Athletics even sent a lawyer to Play The Game 2019. The lawyer didn’t participate in a debate about the science underpinning the DSD Regulations, but distributed a pre-prepared Paper attacking the presenters and their arguments. Anyone interested in whether World Athletics succeeded should read this article.

The World Athletics Paper references recent research involving the administration of 10mg of testosterone cream daily to athletes. The research found that athletes who administered the cream performed better. Of course they did. This is doping.

A person doped with testosterone is getting something extra. Testosterone doesn’t discriminate. If you administer testosterone, an athlete’s physiology has something that it didn’t have before. Everyone knows this. It is the reason why the application of exogenous (external) testosterone is prohibited in sport. 

The same is not true for 46 XY DSD athletes. Their testosterone levels are endogenous (internal), and are their hormonal normal. 

The forerunner to the DSD Rules were the Hyperandrogenism Regulations. The CAS allowed the IAAF to terminate Dutee Chand’s case against them by promulgating the DSD Regulations. That the CAS would allow a serious grievance to be terminated by simply promulgating new Regulations should ring alarm bells for anyone interested in jurisprudence. 

The CAS Decision also raised questions about whether athletes had given their consent for samples collected for anti-doping purposes to be used for gender verification purposes. As previously reported, the 2021 World Anti-Doping Code has been amended to allow anti-doping samples to be used in this way. Up until 2019, the World Anti-Doping Agency’s International Standards (ISL) prohibited such use.

The Hyperandrogenism were promulgated in May 2011. Article 6.3 of the World Anti-Doping Agency’s (WADA) 2012 International Standard for Laboratories (ISL) mandates that written consent is required from any athlete for a sample collected for anti-doping purposes to be used in any other way. ‘No Sample may be used for any purpose other than as described in Article 6.2 without the Athlete’s written consent’, it reads. ‘Samples used for purposes other than Article 6.2 shall have any means of identification removed such that they cannot be traced back to a particular Athlete’.

Such a prohibition was repeated in the 2015 ISL, but is not present in the 2019 ISL. However, Annex 2.1 of the 2019 ISL mandates: ‘The Laboratories and WADA-Approved Laboratories for the ABP shall follow the Helsinki Accords and any applicable national standards as they relate to the involvement of human subjects in research. Voluntary informed consent shall also be obtained from human subjects in any drug administration studies for the purpose of development of a Reference Collection or proficiency testing materials.’

‘In medical research involving human subjects capable of giving informed consent, each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail, post-study provisions and any other relevant aspects of the study’, reads Article 26 of the World Medical Association’s (WMA) Helsinki Declaration. ‘The potential subject must be informed of the right to refuse to participate in the study or to withdraw consent to participate at any time without reprisal. Special attention should be given to the specific information needs of individual potential subjects as well as to the methods used to deliver the information.

‘After ensuring that the potential subject has understood the information, the physician or another appropriately qualified individual must then seek the potential subject’s freely-given informed consent, preferably in writing. If the consent cannot be expressed in writing, the non-written consent must be formally documented and witnessed.’

The IAAF’s Competition Medical Guidelines (click here to download) also emphasise that they comply with the Helsinki Declaration. The CAS Decision in Semenya’s case highlights serious questions as to whether athletes provided consent for their anti-doping samples to be used in Paper One. ‘The IAAF relies on the initial consent provided for doping control purposes’, reads the Decision. ‘ASA repeatedly asked the IAAF to disclose copies of the signed consent forms provided by the athletes whose samples and data form the basis of the analysis in BG17 [Paper One]. The IAAF has declined to do so. The Panel considers that it can therefore be inferred that no such forms exist, or that if they do exist they do not assist the IAAF on this issue.’

It would therefore appear that World Athletics relied on evidence obtained from athletes in breach of WADA’s ISL, its own Competition Medical Guidelines and the WMA’s Helsinki Declaration in order to support the DSD Rules. This would also appear to invalidate part of its evidence base, but the CAS Panel didn’t consider this to be important, and the SFT didn’t assess the reliability of the evidence in support of the Rules.

The United Nations, Human Rights Council, and the WMA itself have already expressed concern about this. In September 2018, the Human Rights Special Procedures body of the United Nations wrote to Sebastian Coe, President of World Athletics. Three UN Special Rapporteurs for physical and mental health; torture; and discrimination against women highlight ‘serious concerns’ that the DSD Regulations:

• Contravene human rights standards and norms;
• do not present evidence justifying that they pursue a legitimate aim;
• are not reasonable and objective;
• do not demonstrate proportionality between their aim and effects.

World Athletics’ response was to accuse the UN of not understanding its Rules. ‘It is clear that the author is not across the details of the IAAF regulations nor the facts presented recently at the Court of Arbitration for Sport’, wrote World Athletics in a statement to the BBC, after the UN Human Rights Council reiterated its concerns in March last year. ‘There are many generic and inaccurate statements contained in the motion presented to the UN Human Rights Council so it is difficult to work out where to start’.

In July this year, the Human Rights Council urged UN Member States to prohibit the enforcement of the DSD Rules. Its Report was unequivocal that the DSD Rules represent an infringement of the right for athletes with a DSD to compete. ‘The implementation of female eligibility regulations denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non- discrimination more broadly’, it outlines.

In May last year, the WMA reiterated its advice to physicians not to implement the DSD Rules. “We have strong reservations about the ethical validity of these regulations”, said WMA President Dr. Leonid Eidelman. “They are based on weak evidence from a single study, which is currently being widely debated by the scientific community. They are also contrary to a number of key WMA ethical statements and declarations, and as such we are calling for their immediate withdrawal.”

“Caster’s legal defeat is not a victory for World Athletics, nor does it legitimize the CAS or global sport’s ‘system of justice’”, said Brendan Schwab, Executive Director of the World Players Association (WPA), in a statement. “Despite the World Athletics eligibility regulations being condemned as a violation of the human rights of athletes by authorities as eminent as the United Nations High Commissioner for Human Rights (UNHCHR), Caster’s human rights could not be properly considered at any stage of the process. In the same report the UNHCHR has identified how sport’s justice system systemically denies athletes of their right to an effective remedy where their human rights have been violated.

“World Athletics flagrantly maintains that, as a private body, it has no responsibility to respect Caster’s internationally recognised human rights. It argued that her rights are to be primarily determined in accordance with the Constitution of World Athletics and the Olympic Charter of the International Olympic Committee (IOC), neither of which uphold the human rights of athletes.”

Herein lies the problem. Sport’s closed arbitration system allowed World Athletics to avoid all of these serious issues, raised by major international bodies, and to welcome the SFT’s inability to consider them as a victory.

Thin end of the wedge

Nobody is arguing that World Athletics shouldn’t be able to exclude ‘male’ athletes from certain ‘female’ categories. World Athletics clearly thinks is approach to its DSD Rules is in line with this proposition, otherwise it wouldn’t have spent so much time, effort, and money defending it. If ‘male’ athletes were inclined to compete in female sport, they would dominate it (although there is no evidence that anyone who identifies as a ‘man’ has ever sought to compete in ‘female’ sport).

Given what we know about determination to win and doping, it isn’t unreasonable to assume that unscrupulous coaches would seek out DSD athletes in order to win, as Paula Radcliffe highlighted. World Athletics is right to point to the prevalence of DSD athletes in the Restricted Events as evidence that they may hold an advantage over XX karyotype athletes who have not benefitted from testosterone’s action on their physiology from puberty onwards.

But is such an advantage ‘unfair’? World Athletics thinks so. It is ‘category defeating’, to borrow its grandstand term. But it doesn’t appear to have done any other research as to how ‘unfair’ the advantage is compared to other advantages within the Restricted Events. The playing field is never level in any sporting event. Does height or stride length also confer an advantage in the Restricted Events? 

Nobody is saying that World Athletics shouldn’t be free to exclude ‘male’ athletes from its ‘female’ categories. However, the danger is that by pegging rules on who can compete in its female category to natural testosterone levels, World Athletics risks making people ill. World Athletics is effectively saying to a 46 XY DSD athlete: use medication not designed for your physiology to reduce your natural hormonal levels, otherwise you cannot compete internationally in our restricted events as a female.

In addition, some of the Restricted Events appear to be arbitrary, leading to conjecture that the DSD Rules are designed to target Caster Semenya. World Athletics refused to listen to the CAS when it asked it to consider deferring the application of the Rules to the 1,500m and one mile events, due to lack of evidence. But this didn’t trouble the SFT.

‘Although the CAS has expressed concerns about the inclusion of these two test events in the DSD Rules and indicated that the IAAF might consider deferring the application of this rule to such events, it nevertheless considered that the IAAF had provided evidence for all “covered events”, as well as a rational explanation as to how this category was defined’, reads the SFT Decision. ‘In these circumstances, this result cannot be qualified as contrary to public order’.

The problem is that the pegging of eligibility rules in female categories to natural testosterone levels doesn’t end with events run between 400m and one mile, or with the DSD Rules. The CAS Decision permitted World Athletics to add further events to the Rules in the future. ‘The majority of the Panel observes that it may be that, on implementation and with experience, certain factors, supported by evidence, may be shown to affect the overall proportionality of the DSD Regulations, either by indicating that amendments are required in order to ensure that the Regulations are capable of being applied proportionately, or by providing further support for or against the inclusion of particular events within the category of Restricted Events’, read an Executive Summary of its Decision.

Transgender females are currently not permitted to use testosterone at levels above 10 nmol/L if they are to be permitted to compete in female sport. Now that World Athletics has got its DSD Rules over the line, they also face the possibility that permissible limits will be reduced, potentially making them ill.

This is why nothing has changed with the SFT ruling. Realistically, I don’t think that anybody expected Caster Semenya to prove that the CAS Decision violates Swiss public policy.

What the SFT decision has highlighted, for athletes, is that appealing such issues through sport’s closed arbitration system is pointless. The CAS allowed the IAAF to amend the DSD Rules before, during, and after its hearing. It held that the Rules are discriminatory and despite this, the IAAF was able to ignore its warning about the inclusion of the 1,500m and one mile events due to lack of evidence without repercussion. The SFT held that none of this qualifies as a threat to Swiss public policy. Case closed.

Kristen Worley was only successful in her appeal that International Olympic Committee (IOC) policies had infringed her human rights by taking her case outside of sport’s closed arbitration system. Claudia Pechstein was only partially successful by taking her case to the European Court of Human Rights (ECHR), which forced the CAS to open its hearings to the public. This has not gone well so far. 

It would appear that World Athletics doesn’t want to face similar battles to the Semenya case in the future. ‘The decision of the CAS will be final and binding on all parties, and no right of appeal will lie from that decision’, reads Article 5.5 of the DSD Rules. ‘All parties waive irrevocably any right to any form of appeal, review or recourse by or in any court or judicial authority in respect of such decision, insofar as such waiver may be validly made’. Perhaps World Athletics knows that the CAS provides a sensitive ear.

The SFT decision doesn’t bring us any closer to ascertaining whether it is ethical for World Athletics to require 46 XY DSD females to self medicate their natural biology in order to be eligible for certain international female events. Caster Semenya was brought up as a woman, lives as a woman and is legally recognised as a woman, as the DSD Rules require. The action of testosterone on her XY karyotype has provided her with a distinct advantage, but it is an advantage she has had to work on throughout her life, just as other athletes play to their strengths. Is it right to penalise all DSD women for her success?

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