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

The Pechstein ruling of the OLG München - A Rough Translation

The Pechstein decision of the Oberlandesgericht of Munich is “ground-breaking”, “earth-shaking”, “revolutionary”, name it. It was the outmost duty of a “German-reading” sports lawyer to translate it as fast as possible in order to make it available for the sports law community at large (Disclaimer: This is not an official translation and I am no certified legal translator). Below you will find the rough translation of the ruling (the full German text is available here), it is omitting solely the parts, which are of no direct interest to international sports law.

The future of CAS is in the balance and this ruling should trigger some serious rethinking of the institutional set-up that underpins it. As you will see, the ruling is not destructive, the Court is rather favourable to the function of CAS in the sporting context, but it requires a fundamental institutional reshuffling. It also offers a fruitful legal strategy to challenge CAS awards that could be used in front of any national court of the EU as it is based on reasoning analogically applicable to article 102 TFEU (on abuse of a dominant position), which is valid across the EU’s territory.

Enjoy the read! 

Antoine

PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297

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From Veerpalu to Lalluka: ‘one step forward, two steps back’ for CAS in dealing with Human Growth Hormone tests (by Thalia Diathesopoulou)

In autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an adverse analytical finding with regard to human growth hormone (hGH). The timing was ideal. As the FINADA Supervisory Body in view of the A and B positive samples initiated disciplinary proceedings against Lalluka for violation of anti-doping rules, the Veerpalu case was pending before the CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until the CAS rendered the award in the Veerpalu case. Indeed, on 25 March 2013, the CAS shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule violation for recombinant hGH (rhGH) on the grounds that the decision limits set by WADA to define the ratio beyond which the laboratories should report the presence of rhGH had not proven scientifically reliable.

The Veerpalu precedent has become a rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed the road that Veerpalu paved and sought to overturn their doping ban by alleging the scientific unreliability of the hGH decisions limits. Without success, however. With the full text of the CAS award on the Lallukka case released a few weeks ago[1] and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on the validity of the hGH test. In short: Should the Veerpalu case and its claim that doping sanctions should rely on scientifically well founded assessments be considered as a fundamental precedent or as a mere exception? More...

State Aid and Sport: does anyone really care about rugby? By Beverley Williamson

There has been a lot of Commission interest in potential state aid to professional football clubs in various Member States.  The huge sums of money involved are arguably an important factor in this interest and conversely, is perhaps the reason why state aid in rugby union is not such a concern. But whilst the sums of money may pale into comparison to those of professional football, the implications for the sport are potentially no less serious.

At the end of the 2012/2013 season, Biarritz Olympique (Biarritz) were relegated from the elite of French Rugby Union, the Top 14 to the Pro D2.  By the skin of their teeth, and as a result of an injection of cash from the local council (which amounted to 400,000€), they were spared administrative relegation to the amateur league below, the Fédérale 1, which would have occurred as a result of the financial state of the club.More...

State aid in Croatia and the Dinamo Zagreb case

Introduction

The year 2015 promises to be crucial, and possibly revolutionary, for State aid in football. The European Commission is taking its time in concluding its formal investigations into alleged State aid granted to five Dutch clubs and several Spanish clubs, including Valencia CF and Real Madrid, but the final decisions are due for 2015.

A few months ago, the Commission also received a set of fresh State aid complaints originating from the EU’s newest Member State Croatia. The complaints were launched by a group of minority shareholders of the Croatian football club Hajduk Split, who call themselves Naš Hajduk. According to Naš Hajduk, Hajduk Split’s eternal rival, GNK Dinamo Zagreb, has received more than 30 million Euros in unlawful aid by the city of Zagreb since 2006.More...

“The Odds of Match Fixing – Facts & Figures on the integrity risk of certain sports bets”. By Ben Van Rompuy

Media reports and interested stakeholders often suggest that certain types of sports bets would significantly increase the risks of match fixing occurring. These concerns also surface in policy discussions at both the national and European level. Frequently calls are made to prohibit the supply of “risky” sports bets as a means to preserve the integrity of sports competitions.

Questions about the appropriateness of imposing such limitations on the regulated sports betting, however, still linger. The lack of access to systematic empirical evidence on betting-related match fixing has so far limited the capacity of academic research to make a proper risk assessment of certain types of sports bets. 

The ASSER International Sports Law Centre has conducted the first-ever study that assesses the integrity risks of certain sports bets on the basis of quantitative empirical evidence. 

We uniquely obtained access to key statistics from Sportradar’s Fraud Detection System (FDS). A five-year dataset of football matches worldwide, which the FDS identified as likely to have been targeted by match fixers, enabled us to observe patterns and correlations with certain types of sports bets. In addition, representative samples of football bets placed with sports betting operator Betfair were collected and analysed. 

The results presented in this report, which challenge several claims about the alleged risks generated by certain types of sports bets, hope to inform policy makers about the cost-effectiveness of imposing limits on the regulated sports betting offer.More...

The Pechstein ruling of the Oberlandesgericht München - Time for a new reform of CAS?

Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!


On 15 January 2015, the earth must have been shaking under the offices of the Court of Arbitration for Sport (CAS) in Lausanne when the Oberlandesgericht München announced its decision in the Pechstein case. If not entirely unpredictable, the decision went very far (further than the first instance) in eroding the legal foundations on which sports arbitration rests. It is improbable (though not impossible) that the highest German civil court, the Bundesgerichtshof (BGH), which will most likely be called to pronounce itself in the matter, will entirely dismiss the reasoning of the Oberlandesgericht. This blogpost is a first examination of the legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in the coming months).More...



In blood we trust? The Kreuziger Biological Passport Case. By Thalia Diathesopoulou

Over the last twenty years, professional cycling has developed the reputation of one of the “most drug soaked sports in the world”.[1] This should not come as a surprise. The sport’s integrity has plummeted down due to an unprecedented succession of doping scandals. La crème de la crème of professional cyclists has been involved in doping incidents including Tyler Hamilton, Floyd Landis, Alejandro Valverde and Lance Armstrong. The once prestigious Tour de France has been stigmatized as a race of “pharmacological feat, not a physical one”.[2]

In view of these overwhelming shadows, in 2008, the International Cycling Union (UCI), in cooperation with the World Anti-Doping Agency (WADA) took a leap in the fight against doping. It became the first International Sports Federation to implement a radical new anti-doping program known as the Athlete Biological Passport (ABP).[3] More...

A Question of (dis)Proportion: The CAS Award in the Luis Suarez Biting Saga

The summer saga surrounding Luis Suarez’s vampire instincts is long forgotten, even though it might still play a role in his surprisingly muted football debut in FC Barcelona’s magic triangle. However, the full text of the CAS award in the Suarez case has recently be made available on CAS’s website and we want to grasp this opportunity to offer a close reading of its holdings. In this regard, one has to keep in mind that “the object of the appeal is not to request the complete annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the four-month ban handed out by FIFA extending to all football-related activities and to the access to football stadiums was excessive and disproportionate. Accordingly, the case offered a great opportunity for CAS to discuss and analyse the proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC).  More...

The International Sports Law Digest – Issue II – July-December 2014

I. Literature


1. Antitrust/Competition Law and Sport

G Basnier, ‘Sports and competition law: the case of the salary cap in New Zealand rugby union’, (2014) 14 The International Sports Law Journal 3-4, p.155

R Craven, ‘Football and State aid: too important to fail?’ (2014) 14 The International Sports Law Journal 3-4, p.205

R Craven, ‘State Aid and Sports Stadiums: EU Sports Policy or Deference to Professional Football (2014) 35 European Competition Law Review Issue 9, 453


2. Intellectual Property Rights in Sports law / Betting rights/ Spectators’ rights/ Sponsorship Agreements

Books

W T Champion and K DWillis, Intellectual property law in the sports and entertainment industries (Santa Barbara, California; Denver, Colorado; Oxford, England: Praeger 2014)

J-M Marmayou and F Rizzo, Les contrats de sponsoring sportif (Lextenso éditions 2014) 

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Time to Cure FIFA’s Chronic Bad Governance Disease

 After Tuesday’s dismissal of Michael Garcia’s complaint against the now infamous Eckert statement synthetizing (misleadingly in his eyes) his Report on the bidding process for the World Cup 2018 and 2022, Garcia finally decided to resign from his position as FIFA Ethics Committee member. On his way out, he noted: “No independent governance committee, investigator, or arbitration panel can change the culture of an organization”. It took Garcia a while to understand this, although others faced similar disappointments before. One needs only to remember the forgotten reform proposals of the Independent Governance Committee led by Prof. Dr. Mark Pieth. More...

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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

Blog Symposium: FIFA’s TPO ban and its compatibility with EU competition law - Introduction - Antoine Duval & Oskar van Maren

Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

On 22 December 2014, FIFA officially introduced an amendment to its Regulations on the Status and Transfers of Players banning third-party ownership of players’ economic rights (TPO) in football. This decision to put a definitive end to the use of TPO in football is controversial, especially in countries where TPO is a mainstream financing mechanism for clubs, and has led the Portuguese and Spanish football leagues to launch a complaint in front of the European Commission, asking it to find the FIFA ban contrary to EU competition law.

Next week, we will feature a Blog Symposium discussing the FIFA TPO ban and its compatibility with EU competition law. We are proud and honoured to welcome contributions from both the complainant (the Spanish football league, La Liga) and the defendant (FIFA) and three renowned experts on TPO matters: Daniel Geey ( Competition lawyer at Fieldfisher, aka @FootballLaw), Ariel Reck (lawyer at Reck Sports law in Argentina, aka @arielreck) and Raffaele Poli (Social scientist and head of the CIES Football Observatory). The contributions will focus on different aspects of the functioning of TPO and on the impact and consequences of the ban. More...





The CAS and Mutu - Episode 4 - Interpreting the FIFA Transfer Regulations with a little help from EU Law

On 21 January 2015, the Court of arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that keeps on giving (this decision might still be appealed to the Swiss Federal tribunal and a complaint by Mutu is still pending in front of the European Court of Human Right). The decision was finally published on the CAS website on Tuesday. Basically, the core question focuses on the interpretation of Article 14. 3 of the FIFA Regulations on the Status and Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player (Mutu) due to a breach of the contract without just cause by the player, the new club (Juventus and/or Livorno) bears the duty to pay the compensation due by the player to his former club (Chelsea). Despite winning maybe the most high profile case in the history of the CAS, Chelsea has been desperately hunting for its money since the rendering of the award (as far as the US), but it is a daunting task. Thus, the English football club had the idea to turn against Mutu’s first employers after his dismissal in 2005, Juventus and Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC), but as we will see the CAS decided otherwise[1]. More...

The UCI Report: The new dawn of professional cycling?

The world of professional cycling and doping have been closely intertwined for many years. Cycling’s International governing Body, Union Cycliste Internationale (UCI), is currently trying to clean up the image of the sport and strengthen its credibility. In order to achieve this goal, in January 2014 the UCI established the Cycling Independent Reform Commission (CIRC) “to conduct a wide ranging independent investigation into the causes of the pattern of doping that developed within cycling and allegations which implicate the UCI and other governing bodies and officials over ineffective investigation of such doping practices.”[1] The final report was submitted to the UCI President on 26 February 2015 and published on the UCI website on 9 March 2015. The report outlines the history of the relationship between cycling and doping throughout the years. Furthermore, it scrutinizes the role of the UCI during the years in which doping usage was at its maximum and addresses the allegations made against the UCI, including allegations of corruption, bad governance, as well as failure to apply or enforce its own anti-doping rules. Finally, the report turns to the state of doping in cycling today, before listing some of the key practical recommendations.[2]

Since the day of publication, articles and commentaries (here and here) on the report have been burgeoning and many of the stakeholders have expressed their views (here and here). However, given the fact that the report is over 200 pages long, commentators could only focus on a limited number of aspects of the report, or only take into account the position of a few stakeholders. In the following two blogs we will try to give a comprehensive overview of the report in a synthetic fashion.

This first blogpost will focus on the relevant findings and recommendations of the report. In continuation, a second blogpost will address the reforms engaged by the UCI and other long and short term consequences the report could have on professional cycling. Will the recommendations lead to a different governing structure within the UCI, or will the report fundamentally change the way the UCI and other sport governing bodies deal with the doping problem? More...

Book Review - Camille Boillat & Raffaele Poli: Governance models across football associations and leagues (2014)

Camille Boillat & Raffaele Poli: Governance models across football associations and leagues (2014)

Vol. 4, Centre International d'Etude du Sport, Neuchâtel, Switzerland, softback, 114 pages, ISBN 2-940241-24-4, Price: €24




Source: http://www.cies.ch/en/cies/news/news/article/new-publication-in-the-collection-editions-cies-governance-models-across-football-associations-an/

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The aftermath of the Pechstein ruling: Can the Swiss Federal Tribunal save CAS arbitration? By Thalia Diathesopoulou

It took only days for the de facto immunity of the Court of Arbitration for Sport (CAS) awards from State court interference to collapse like a house of cards on the grounds of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards . On 15 January 2015, the Munich Court of Appeals signalled an unprecedented turn in the longstanding legal dispute between the German speed skater, Claudia Pechstein, and the International Skating Union (ISU). It refused to recognise a CAS arbitral award, confirming the validity of a doping ban, on the grounds that it violated a core principle of German cartel law which forms part of the German public policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to pay ‘training compensation’, unenforceable for non-compliance with mandatory European Union law and, thereby, for violation of German ordre public. More...

‘The reform of football': Yes, but how? By Marco van der Harst

'Can't fight corruption with con tricks
They use the law to commit crime
And I dread, dread to think what the future will bring
When we're living in gangster time'
The Specials - Gangsters


The pressing need for change 

The Parliamentary Assembly (PACE) of the Council of Europe (CoE), which is composed of 318 MPs chosen from the national parliaments of the 47 CoE member states, unanimously adopted a report entitled ‘the reform of football’ on January 27, 2015. A draft resolution on the report will be debated during the PACE April 2015 session and, interestingly, (only?) FIFA’s president Sepp Blatter has been sent an invitation

The PACE report highlights the pressing need of reforming the governance of football by FIFA and UEFA respectively. Accordingly, the report contains some interesting recommendations to improve FIFA’s (e.g., Qatargate[1]) and UEFA’s governance (e.g., gender representation). Unfortunately, it remains unclear how the report’s recommendations will actually be implemented and enforced. 

The report is a welcomed secondary effect of the recent Qatargate directly involving former FIFA officials such as Jack Warner, Chuck Blazer, and Mohamed Bin Hammam[2] and highlighting the dramatic failures of FIFA’s governance in putting its house in order. Thus, it is undeniably time to correct the governance of football by FIFA and its confederate member UEFA – nolens volens. The real question is how to do it.



            Photograph: Fabrice Coffrini/AFP/Getty Images                   Photograph: Octav Ganea/AP

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SV Wilhelmshaven: a Rebel with a cause! Challenging the compatibility of FIFA’s training compensation system with EU law

Due to the legitimate excitement over the recent Pechstein ruling, many have overlooked a previous German decision rendered in the Wilhelmshaven SV case (the German press did report on the decision here and here). The few academic commentaries (see here and here) focused on the fact that the German Court had not recognized the res judicata effect of a CAS award. Thus, it placed Germany at the spearhead of a mounting rebellion against the legitimacy of the CAS and the validity of its awards. None of the commentators weighed in on the substance of the decision, however. Contrary to the Court in Pechstein, the judges decided to evaluate the compatibility of the FIFA rules on training compensations with the EU free movement rights. To properly report on the decision and assess the threat it may constitute for the FIFA training compensation system, we will first summarize the facts of the case (I), briefly explicate the mode of functioning of the FIFA training compensation system (II), and finally reconstruct the reasoning of the Court on the compatibility of the FIFA rules with EU law (III).More...

In Egypt, Broadcasting Football is a Question of Sovereignty … for Now! By Tarek Badawy, Inji Fathalla, and Nadim Magdy

On 15 April 2014, the Cairo Economic Court (the “Court") issued a seminal judgment declaring the broadcasting of a football match a sovereign act of State.[1]


Background

In Al-Jazeera v. the Minister of Culture, Minister of Information, and the Chairman of the Board of Directors of the Radio and Television Union, a case registered under 819/5JY, the Al-Jazeera TV Network (the “Plaintiff” or “Al-Jazeera”) sued the Egyptian Radio and Television Union (“ERTU” or the “Union”) et al. (collectively, the “Respondents”) seeking compensation for material and moral damages amounting to three (3) million USD, in addition to interest, for their alleged breach of the Plaintiff’s exclusive right to broadcast a World Cup-qualification match in Egypt.  Al-Jazeera obtained such exclusive right through an agreement it signed with Sportfive, a sports marketing company that had acquired the right to broadcast Confederation of African Football (“CAF”) World Cup-qualification matches.

ERTU reportedly broadcasted the much-anticipated match between Egypt and Ghana live on 15 October 2013 without obtaining Al-Jazeera’s written approval, in violation of the Plaintiff’s intellectual property rights.

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Why the European Commission will not star in the Spanish TV rights Telenovela. By Ben Van Rompuy and Oskar van Maren

The selling of media rights is currently a hot topic in European football. Last week, the English Premier League cashed in around 7 billion Euros for the sale of its live domestic media rights (2016 to 2019) – once again a 70 percent increase in comparison to the previous tender. This means that even the bottom club in the Premier League will receive approximately €130 million while the champions can expect well over €200 million per season.

The Premier League’s new deal has already led the President of the Spanish National Professional Football League (LNFP), Javier Tebas, to express his concerns that this could see La Liga lose its position as one of Europe’s leading leagues. He reiterated that establishing a centralised sales model in Spain is of utmost importance, if not long overdue.

Concrete plans to reintroduce a system of joint selling for the media rights of the Primera División, Segunda División A, and la Copa del Rey by means of a Royal Decree were already announced two years ago. The road has surely been long and bumpy. The draft Decree is finally on the table, but now it misses political approval. All the parties involved are blaming each other for the current failure: the LNFP blames the Sport Governmental Council for Sport (CSD) for not taking the lead; the Spanish Football Federation (RFEF) is arguing that the Federation and non-professional football entities should receive more money and that it should have a stronger say in the matter in accordance with the FIFA Statutes;  and there are widespread rumours that the two big earners, Real Madrid and FC Barcelona, are actively lobbying to prevent the Royal Decree of actually being adopted.

To keep the soap opera drama flowing,  on 30 December 2014, FASFE (an organisation consisting of groups of fans, club members, and minority shareholders of several Spanish professional football clubs) and the International Soccer Centre (a movement that aims to obtain more balanced and transparent football and basketball competitions in Spain) filed an antitrust complaint with the European Commission against the LNFP. They argue that the current system of individual selling of LNFP media rights, with unequal shares of revenue widening the gap between clubs, violates EU competition law.


Source:http://www.gopixpic.com/600/buscar%C3%A1n-el-amor-verdadero-nueva-novela-de-televisa/http:%7C%7Cassets*zocalo*com*mx%7Cuploads%7Carticles%7C5%7C134666912427*jpg/

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The 2014 Dortmund judgment: what potential for a follow-on class action? By Zygimantas Juska

Class actions are among the most powerful legal tools available in the US to enforce competition rules. With more than 75 years of experience, the American system offers valuable lessons about the benefits and drawbacks of class actions for private enforcement in competition law. Once believed of as only a US phenomenon, class actions are slowly becoming reality in the EU. After the adoption of the Directive on damages actions in November 2014, the legislative initiative in collective redress (which could prescribe a form of class actions) is expected in 2017.[1] Some pro-active Member States have already taken steps to introduce class actions in some fashion, like, for example, Germany.

What is a class action? It is a lawsuit that allows many similar legal claims with a common interest to be bundled into a single court action. Class actions facilitate access to justice for potential claimants, strengthen the negotiating power and contribute to the efficient administration of justice. This legal mechanism ensures a possibility to claim cessation of illegal behavior (injunctive relief) or to claim compensation for damage suffered (compensatory relief).  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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