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

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

International and European Sports Law – Monthly Report – October 2017. 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. More...

Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in the Red Bull Case – By Tomáš Grell

 

Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks.  More...

Multi-Club Ownership in European Football – Part I: General Introduction and the ENIC Saga – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Introduction

On 13 September 2017, more than 40,000 people witnessed the successful debut of the football club RasenBallsport Leipzig (RB Leipzig) in the UEFA Champions League (UCL) against AS Monaco. In the eyes of many supporters of the German club, the mere fact of being able to participate in the UEFA's flagship club competition was probably more important than the result of the game itself. This is because, on the pitch, RB Leipzig secured their place in the 2017/18 UCL group stage already on 6 May 2017 after an away win against Hertha Berlin. However, it was not until 16 June 2017 that the UEFA Club Financial Control Body (CFCB) officially allowed RB Leipzig to participate in the 2017/18 UCL alongside its sister club, Austrian giants FC Red Bull Salzburg (RB Salzburg).[1] As is well known, both clubs have (had) ownership links to the beverage company Red Bull GmbH (Red Bull), and therefore it came as no surprise that the idea of two commonly owned clubs participating in the same UCL season raised concerns with respect to the competition's integrity. More...


International and European Sports Law – Monthly Report – September 2017. 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 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

The limits to multiple representation by football intermediaries under FIFA rules and Swiss Law - By Josep F. Vandellos Alamilla

Editor’s note: Josep F. Vandellos Alamilla is an international sports lawyer and academic based in Valencia (Spain) and a member of the Editorial Board of the publication Football Legal. Since 2017 he is the Director of  the Global Master in Sports Management and Legal Skills FC Barcelona – ISDE.

I think we would all agree that the reputation of players’ agents, nowadays called intermediaries, has never been a good one for plenty of reasons. But the truth is their presence in the football industry is much needed and probably most of the transfers would never take place if these outcast members of the self-proclaimed football family were not there to ensure a fluid and smooth communication between all parties involved.

For us, sports lawyers, intermediaries are also important clients as they often need our advice to structure the deals in which they take part. One of the most recurrent situations faced by intermediaries and agents operating off-the-radar (i.e. not registered in any football association member of FIFA) is the risk of entering in a so-called multiparty or dual representation and the potential risks associated with such a situation.

The representation of the interests of multiple parties in football intermediation can take place for instance when the agent represents the selling club, the buying club and/or the player in the same transfer, or when the agent is remunerated by multiple parties, and in general when the agent incurs the risk of jeopardizing the trust deposited upon him/her by the principal. The situations are multiple and can manifest in different manners.

This article will briefly outline the regulatory framework regarding multiparty representation applicable to registered intermediaries. It will then focus on provisions of Swiss law and the identification of the limits of dual representation in the light of the CAS jurisprudence and some relevant decisions of the Swiss Federal Tribunal.More...



The Evolution of UEFA’s Financial Fair Play Rules – Part 3: Past reforms and uncertain future. By Christopher Flanagan

Part Two of this series looked at the legal challenges FFP has faced in the five years since the controversial ‘break even’ requirements were incorporated. Those challenges to FFP’s legality have been ineffective in defeating the rules altogether; however, there have been iterative changes during FFP’s lifetime. Those changes are marked by greater procedural sophistication, and a move towards the liberalisation of equity input by owners in certain circumstances. In light of recent statements from UEFA President Aleksander Čeferin, it is possible that the financial regulation of European football will be subject to yet further change. More...

The Evolution of UEFA’s Financial Fair Play Rules – Part 2: The Legal Challenges. By Christopher Flanagan

The first part of this series looked at the legal framework in which FFP sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps legal, perhaps not. Given the significant financial interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015 accounts – and the close correlation between clubs’ spending on wages and their success on the field,[1] a legal challenge to the legality of FFP’s ‘break even’ requirement (the Break Even Requirement), which restricts a particular means of spending, was perhaps inevitable.

And so it followed.

Challenges to the legality of the Break Even Requirement have been brought by football agent Daniel Striani, through various organs of justice of the European Union and through the Belgian courts; and by Galatasaray in the Court of Arbitration for Sport. As an interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception. More...





The Evolution of UEFA’s Financial Fair Play Rules – Part 1: Background and EU Law. By Christopher Flanagan

Editor's Note: Christopher is an editor of the Asser International Sports Law Blog. His research interests cover a spectrum of sports law topics, with a focus on financial regulatory disputes, particularly in professional football, a topic on which he has regularly lectured at the University of the West of England.

 

It is five years since the Union of European Football Associations (UEFA) formally introduced ‘Financial Fair Play’ (FFP) into European football through its Club Licensing and Financial Fair Play Regulations, Edition 2012. With FFP having now been in place for a number of years, we are in a position to analyse its effect, its legality, and how the rules have altered over the last half decade in response to legal challenges and changing policy priorities. This article is split into three parts: The first will look at the background, context and law applicable to FFP; Part Two will look at the legal challenges FFP has faced; and Part Three will look at how FFP has iteratively changed, considering its normative impact, and the future of the rules. More...


International and European Sports Law – Monthly Report – July and August 2017. 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.

 

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  • Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
  • Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
  • Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
  • Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.] More...

Asser International Sports Law Blog | Should the CAS ‘let Dutee run’? Gender policies in Sport under legal scrutiny. By Thalia Diathesopoulou

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

Should the CAS ‘let Dutee run’? Gender policies in Sport under legal scrutiny. By Thalia Diathesopoulou

The rise of Dutee Chand, India’s 100 and 200-meter champion in the under 18-category, was astonishing. Her achievements were more than promising: after only two years, she broke the 100m and 200m national junior records, competed in the 100m final at the World Youth Athletics Championships in Donetsk and collected two gold medals in the Asian Junior Championships in Chinese Taipei. But, in July 2014, this steady rise was abruptly halted. Following a request from the Athletics Federation of India (AFI), the Sports Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee was detected with female hyperandrogenism, i.e a condition where the female body produces high levels of testosterone. As a result, a few days before the Commonwealth Games in Glasgow, the AFI declared Dutee ineligible to compete under the IAAF Regulations and prevented her from competing in future national and international events in the female category. Pursuant to the IAAF ‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition only if she lowers her testosterone level beneath the male range by means of medical or surgical treatment.[1] On 25 September 2014, Dutee filed an appeal before the CAS, seeking to overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism regulations null and void. She is defending her right to compete the way she actually is: a woman with high levels of testosterone. Interestingly enough, albeit a respondent, AFI supports her case.

IAAF and IOC rules set limits to female hyperandrogenism, which is deemed an unfair advantage that erodes female sports integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time that they will be debated in court. This appeal could have far-reaching ramifications for the sports world. It does not only seek to pave the way for a better ‘deal’ for female athletes with hyperandrogenism, who are coerced into hormonal treatment and even surgeries to ‘normalise’ themselves as women[2], but it rather brings the CAS, for the first time, before the thorny question:

How to strike a right balance between the core principle of ‘fair play’ and norms of non-discrimination, in cases where a determination of who qualifies as a ‘woman’ for the purposes of sport has to be made? 


‘Prove your gender!’

The separation between women and men in athletic competitions has been paradigmatic. Considering the sex-based physiological differences, which in case of a mixed competition would lead to virtually no women participation, the separation opened the door for women to compete at the highest levels. Nevertheless, the determination on the eligibility of women athletes to participate in the female category has become a source of controversies. So far, as decades of flawed IOC policies have demonstrated, it has not been clarified ‘who is woman’ for the purposes of sport.

The idea of ‘sex testing’ in sports dates back to 1960s and even preceded doping tests. The first gender test introduced by the IOC is nowadays laughable: nude parades of female competitors before a panel of judges in charge to verify the presence of female genitals and other sex characteristics.[3] Soon, this test was proven unworkable, since in intersex conditions, where people are born with both male and female genitalia, the outside did not match the inside.

The next test introduced was dubbed ‘chromosome testing’, which was based on the assumption that chromosomes are the key factor in determining sex, i.e. XY for male and XX for female. However, this test overlooked natural situations, where males have an extra X chromosome or females are missing one and was, therefore, soon abandoned. Thereafter, the SRY (i.e. the gene that triggers male sex determination) gene detection test was introduced, but the Olympics Games in Atlanta 1996 proved its deficiency:  eight women were tested positive for it and all were finally cleared for competition. Following this series of gender policies, which were deemed particularly discriminatory towards women with sexual development disorders, the IOC removed gender verification tests in June 1999.

It was not before 2009, in the wake of the Caster Semenya case, involving the South African 800m and 1500m runner and world champion, that an urgent need for reconsidering sex determination policies was brought into surface. Semenya’s masculine appearance, unusual muscle build and, foremost, her outstanding victory in the 2009 World Championships 800m race, fuelled a frenzy of suspicions on her gender. Following her victory, in an unprecedented breach of confidentiality and privacy rules, the IAAF leaked that Semenya had undergone tests to determine whether she had an unfair advantage as compared with other women. For three years, Semenya was not allowed to participate in events as her gender was still under investigation. In 2012, she was cleared by the gender testing committee and she began racing again. The story of Semenya, who suffered from humiliation and castigation by athletics officials and the media, unveiled IAAF’s incompetency in handling complex gender-related issues.

As a reply, in an attempt to establish an unambiguous, objective and scientifically based policy, IAAF and IOC, in 2011 and 2012 respectively, released new regulations. In that context, the focus shifted from sex testing to endogenous testosterone testing. The natural levels of testosterone have become the new golden rule: the purpose is not to determine ‘who is woman’, but rather ‘what makes a woman a woman’. Both policies are based on the assumption that testosterone is a key factor for men’s often superior strength and speed and, as a result, women with testosterone levels typical for males have an ‘unfair’ advantage. Therefore, according to the new regulations, if a female athlete has androgen levels higher than the normal male range, she is deemed ineligible to compete in women’s competition and will only be considered able to compete again if she lowers her testosterone level by means of medical or surgical treatment.

Despite IAAF’s protest to the contrary, this is the recent re-incarnation of ‘sex testing’.[4] The real import of these rules has been illustrated by the Dutee’s case. With Dutee’s appeal pending before the CAS, the legality of IAAF and IOC’s current gender policy needs to be scrutinized.


The unfair results of ‘fairness in sports’: The dark side of IAAF’s and IOC’s gender policy

Fair competition, which provides a fair opportunity to compete and prohibits athletes from competing with unfair advantages, has been widely accepted as a value integral to sports.[5] In this light, considering hyperandrogenism as an uncommon athletic capacity in relation to other female competitors, IAAF and IOC introduced the ineligibility of female athletes with hyperandrogenism in order to preserve the ‘sacrosanct’ competitive equality in the female category. However, it is our opinion that the current policy is on the borderline of what is fair for the following reasons: 

1. The ‘testosterone’ criterion as yardstick to determine eligibility?

According to the IAAF androgen policy, a general scientific consensus on naturally occurring testosterone as a relevant physical characteristic to separate athletes into different competition classes exists. The first problem is that this argument relies on the flawed assumption that a bright line between male and female can be drawn, not acknowledging situations of an ‘intersex’ status. As David Epstein, reporter and author of “The Sports Gene”, puts it clearly “neither body parts nor for the chromosome within them unequivocally differentiate male from female athletes”. Furthermore, while IAAF relies on a binary perception of biological sex in order to identify the gender of athletes, gender, in fact, is a social construction, which does not correspond to the complexities of biological sex. Secondly, it relies on the assumption that testosterone levels in the human body have limited variability within the sexes. Nevertheless, recent studies have found a complete overlap between testosterone levels in elite men and women, ripping apart testosterone levels as a reliable factor for separating between sexes.  The third problem is the lack of supporting scientific evidence that a competitive advantage can derive from high natural levels of testosterone.[6] Indeed, the scientific understanding of testosterone receptors is far from comprehensive. A recent research supported by the Swiss WADA laboratory added to the uncertainty: “Unfortunately, and to the best of our knowledge, there are neither available data on serum androgen levels nor reliable statistics on the so-called hyperandrogenism among a large and high-level female athletes’ population”.

IAAF policy, in overall, seems to create an absurd result: instead of introducing an objective criterion-if any- for separating between men and women, it rather suggests a classification of athletes between ‘high testosterone’ and ‘low testosterone’. However, ‘High-T’ and ‘Low-T’ categories of competition are not on the agenda.  

2. IAAF policy fosters discrimination

The current policy suggests a discriminatory treatment: it targets only women suspected for hyperandrogenism due to their physical appearance and high levels of performance. Women are asked to prove that they are female, while there is no such a requirement or restriction for men.

Furthermore, the fundament itself of the androgen policy is discriminatory against women who do not conform to traditional notions of femininity. Indeed, it lays on the physiological superiority of men in terms of endurance and strength as compared to women, perpetuating the long-established perception that an intrinsic link between manliness and sport exists, while femininity is associated with more gentle exercise.[7] In IAAF’s view, ‘too masculine women’ do not belong to the female category. It seems that under a scientifically based guise, IAAF seeks to impose a preference for certain social norms regarding what constitutes femininity in a woman’s appearance as criteria for participation.[8]

However, in order to perceive the level of discrimination, the most important question to be addressed is how you qualify an athlete. Hyperandrogenism is a rare biological characteristic and according to IAAF regulations and controversial scientific evidence, it gives female athletes a natural advantage that other female athletes do not have. Similarly, long limbs, broad wingspan for swimmers and height for basketball players are natural advantages.[9] Nevertheless, the later ones, but for hyperandrogenism, have never been considered as unfair. Indeed, the quintessence of elite sports lays on the participation of individuals with rare biological characteristics. In this light, the inevitable question arises: Why should female athletes like Dutee be obliged to reduce or eliminate an inherent advantage that they are born with? Why is then nobody asking a swimmer like Phelps to operate his double-jointed ankles? Or as SAI director-general Juji Thomson remarked: “ Just because Usain Bolt's height is to his advantage will the international authorities want his legs chopped off to ensure a level-playing field?” In other words, why hyperandrogenism has been viewed as different to other biological advantages broadly accepted in some elite athletes? The answer is simple: IAAF’s policy reflects the well-established public perception of femininity and female athletes who do not conform to this norm have to be excluded or ‘feminise’ themselves.

Thereby, IAAF and IOC policy exacerbate bullying and marginalization of women in sports putting their physical difference under unethical and humiliating scrutiny. Semenya had been intruded into the toilets by competitors seeking to check whether she really was a girl. While, after a race in Berlin, her competitor Mariya Savinova sneered “just look at her” when she was asked whether Semenya was a man. Similarly, the most talented female athletes, such as Serena Williams, Martina Navratilova, WNBA player Brittney Griner– and the catalogue is really long-, have been accused of not really being female. This play is up again with IAAF’s ‘are you woman enough to compete as female?’ policy seeking to confer legality to discrimination.

What should not be overlooked, finally, is the bitter truth that the current IAAF policy inevitably targets in priority women from developing countries. Athletes like Semenya or Dutee never perceived their difference, until they appeared on track field courts, where this difference has been flagged in the most humiliating way as abnormality. In sharp contrast to IOC’s declarations on eliminating any kind of discrimination in sports, IAAF and IOC gender policy achieves the most undesirable result: sex and social discrimination ‘all-in-one’. 

3. The disproportionate results of IAAF’s policy: To undergo treatment or not? This is not a question!

Female athletes with hyperandrogenism are faced with two choices: undergo medical treatment to fit the IAAF ‘Procrustean bed’ or abandon female competitions. The disproportionate and unfair consequences are evident.

As Katrina Karkazis, pioneer of Dutee’s motion against IAAF, remarks, the IAAF and IOC treat a physical difference as an illness, which requires a medical response. However, the necessity of such an invasive medical, or surgical, intervention is highly questionable. The suggested treatment does not stop at lowering female athletes’ testosterone level below IAAF’s limit of 10nmol/liter, but it rather aims to eliminate hyperandrogenism. In this sense, sharing IAAF’s assumption that testosterone is the key to performance, such treatment will render athletes like Dutee less competitive than other women who do not have hyperandrogenism or whose hyperandrogenism is below the cut-off. Thereby, IAAF policy, albeit mandating fairness in competition, puts a disproportionate burden on female athletes with hyperandrogenism.

Furthermore, concerns have been raised about the medical effects of the treatment suggested. In fact, it has been argued that long-term hormone therapy can have devastating results on female athletes’ health. Dutee’s denial to undergo this treatment is far from a ‘caprice’. A study published in 2013 revealed the cases of four female athletes identified as having hyperandrogenism, who were sent to a clinic in France. It was reported that those athletes also had medical procedures that had nothing to do with lowering their testosterone levels for sports: a reduction to the size of their clitorises, feminizing plastic surgery and oestrogen replacement therapy. It seems that the IAAF is pulling the trigger on female athletes’ head, who are ready to accept any treatment- even the most questionable ones- in order to keep competing.

On the other hand, the ineligibility sanction leads to a further disproportionate result: If Dutee is considered too masculine to compete in the female category, does she qualify for the male category? Can the mere presence of higher testosterone levels in a female athlete’s body presume that she can compete as a man? The answer has to be answered in negative, notwithstanding the ‘fair play’ issues that may arise. IAAF and IOC rules are cruelly disproportionate: athletes like Dutee who refuse to undergo this questionable treatment are effectively left without a forum to display their talent.


Do it like Pistorius

So far, the IAAF and IOC policy have been shown scientifically shaky, discriminatory and disproportionate. In parallel with these arguments, Dutee has also a very important precedent to rely upon: the CAS ruling in the Pistorius case.

In 2008, Oscar Pistorius, the South African double amputee runner, challenged IAAF rules that prohibited competitive running on ‘cheetah’ legs in international IAAF-sanctioned events alongside able-bodied athlete as being in breach of its commitment to non-discrimination. In that case, the fundamental rights of disabled athletes to be adequately accommodated and have genuinely equal opportunity to compete were at issue. Pistorius had to prove that he gained no advantage from using the prostheses. Reviewing scientific testing and analysis, the CAS concluded that ‘Cheetah’ legs did not give Pistorius an overall advantage.

Although the ‘tailor-made’ effect of the award could raise serious criticism[10], the Pistorius case has been landmark from a twofold point of view. Firstly, the CAS did not hesitate to challenge the indeterminacy of scientific analysis and developed the ‘net advantage’ approach, which stipulates that both the benefits and burdens have to be taken into consideration in determining whether a device provides an advantage to an athlete who uses it.[11] A similar approach has been adopted in the Veerpalu doping case, where the CAS questioned the scientific reliability of the limits applied for the WADA human growth hormone test (HGH).[12] Pistorius and Veerpalu cases have set an important threshold: international sports governing bodies, when it comes to enforce scientific- related sanctions, should rely on scientifically well-founded assessments.

Secondly, the CAS took an extraordinary step. It sent a clear message to international federations that they must address the eligibility criteria surrounding disabled athletes in a transparent and impartial manner.[13] There is no reason why the CAS in the Dutee case would do it differently. After all, sporting rules that seek to ensure fair competition and prevent a competitor from obtaining an unfair advantage have at least to be proportionate and non-discriminatory. 


Let Dutee Run?

The lines between male and female are blurring. As Fausto-Sterling has observed “the reason sports federations can’t get this right is because there is no right”.[14] Sports governing bodies may never be able to ensure fair competition without reaching absurd results.[15] In its daunting task to legally enforce controversial science related and ethical issues, CAS is facing a double challenge. It has the opportunity to set fair and accurate eligibility rules based on objective criteria, which will also preserve the essence of sports. Undoubtedly, sports governing bodies have the authority to establish their eligibility rules. However, self-regulation does not come without limits: sports federations’ rules have to comply with the non-discrimination clauses included in their statutes[16] and the IOC charter. The role of the CAS in monitoring the compliance of these regulations with non-discrimination norms is essential. Therefore, in some cases, CAS has to leave its ‘comfort-zone’: it has to deviate from its well-established practice to provide a significant degree of deference to sports governing bodies with regard to their authority to establish the eligibility rules and rather applies a ‘fairness’ requirement on a case-by-case basis, such as in the Pistorius case.

More importantly, CAS has the chance to finally flesh out the toothless IAAF and IOC commitments to gender equality. Dutee’s case is a fertile ground for an interpretation in the light and purpose of the recent UN resolution on sport and the proclaimed values underpinning the Olympic 2020 Agenda. After all, what is the point of trumpeting non-discrimination in sports, if, in 2014, a female athlete is deemed ‘not woman enough’ to compete with women?

Whatever the CAS decides, one thing remains certain: discrimination against women with sexual development specificities will not anymore be in the blind spot of the law. Dutee showed the way.



[1] IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition - In force as from 1st May 2011 ,  Article 6.8 <http://www.iaaf.org/about-iaaf/documents/medical >

[2] Dr Ben Koh, Daryl Adair and  Peter Sonksen OBE, ‘Testosterone, sex and gender differentiation in sport – where science and sports law meet’ (14 October 2014) <http://www.lawinsport.com/articles/item/testosterone-sex-and-gender-differentiation-in-sport-where-science-and-sports-law-meet>

[3]  J Ellison, ‘Caster Semenya And The IOC’s Olympics Gender Bender’ (26 July 2012) <http://www.thedailybeast.com/articles/2012/07/26/caster-semenya-and-the-ioc-s-olympics-gender-bender.html>

[4] R Pielke, ‘Dutee Chand, science and the spirit of sport: why IAAF policy is deeply flawed’ (20 October 2014) <http://www.sportingintelligence.com/2014/10/20/dutee-chand-science-and-the-spirit-of-sport-why-iaaf-policy-is-deeply-flawed-201001/>

[5] P Zettler, ‘Is It Cheating to Use the Cheetahs? The Implications of Technologically Innovative Prostheses for Sports Values and Rules’ (2009) 27 Boston University International Law Journal, 389.

[6] M Naimark, ‘A New Study Supports Female Athletes Unfairly Excluded From Sport’ (12 September 2014) <http://www.slate.com/blogs/outward/2014/09/12/sex_verification_in_sports_a_new_study_supports_unfairly_excluded_female.html>

[7] Dr Ben Koh,Daryl Adair and  Peter Sonksen OBE (n 2)

[8] R Pielke (n 4)

[9] For a very interesting comparison of the physiques between athletes from a wide range of different sports and competitions, see Howard Schatz’s Athlete series.

[10] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 56.

[11] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 36.

[12] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework’ (19 March 2014) < http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>

[13] Cornelius, 236

[14] J Ellison (n 3).

[15] P Zettler (n 5), 394.

[16] For instance, IAAF Constitution 2011, Art 3: “The Objects of IAAF are (…) 4. To strive to ensure that no gender, race, religious, political or other kind of unfair discrimination exists, continues to exist, or is allowed to develop in Athletics in any form, and that all may participate in Athletics regardless of their gender, race, religious or political views or any other irrelevant factor.”

Comments are closed