Editor's Note:  Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.  She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.

Over the past days, we have been flooded by media reports discussing the “Caster Semenya-case”, reports rapidly relayed in social networks. Since the debate has a distinct legal component and since almost every report appears to draw significantly from the legal background, I granted myself permission – as compensation so to speak - to publish a somewhat more personal, less legal, post than I usually would.

Let me make one thing clear from the outset – I am still ‘agnostic’ about the question of how to solve the issues surrounding the male versus female divide in sports. Each time I have been asked to write or speak on the subject, I have tried to stick to describing the legal situation and its implications. I do not have the miracle solution as to how to handle this infinitely complex issue. And I am not sure anyone can claim to hold that solution at this point. Like everyone, I am doing my research and trying to be humble enough to stay within the realm of my competences.

What I do know: when discussing legal regulation, it is usually not wise to focus disproportionality on an individual case, no matter how much that case stands out. Humans are wired to respond to the particular and the concrete. Caster Semenya’s story is a compelling narrative, which can also very conveniently be supported by pictures (often in poses that – deliberately? – do not do her justice). By contrast, legal regulation is general and abstract and must be designed to address multiple potential situations. I am not naïve enough to believe that regulation is not influenced by politics and – yes - emotions. Still: law-making must be able to distance itself from the pressure of public opinion. This is especially true if the resulting regulations are to deliver satisfactory results on the long term, after the public eye has turned away.

The Court of Arbitration for Sport ruling in the Dutee Chand matter that suspended the validity of the IAAF Hyperandrogenism Regulations was based on a lack of sufficient scientific evidence. More precisely, the decisive factor for the CAS panel was that the IAAF had not adduced sufficient evidence that testosterone levels - at the threshold set in its Regulations - conferred to female athletes an advantage that would outrank any other natural characteristic, in a manner that would place them in a position comparable to male competitors. Absence of evidence is not evidence of absence. Thus, the mere fact that the IAAF – reportedly – intends to continue seeking support to regulate hyperandrogenism and related issues does not truly amount to a ‘challenge’ of the CAS’ ruling or a ‘contempt’ for the decision of the panel. Nor do the IOC recommendations to the same effect. These statements are, on the contrary, the logical sequel of the interim award and the two-year deadline given to the IAAF. I previously made the point – along with my co-author - that the rendering of an interim award was surprising, for various reasons related to legal technique and arbitration practice. But the reactions of the IAAF and the IOC to that award seem rather unsurprising. What is more significant from a legal perspective: the CAS panel placed the burden of proof on the IAAF. This means that, as long as the science is unsettled, women with hyperandrogenism will be given the benefit of the doubt.

Which leads us back to Caster Semenya. I have been reading that making history in Rio could paradoxically be career-ending for her[i]. This is because an outstanding victory would represent outstanding indication of her enjoying an unfair advantage. This may – unfortunately – hold true for public rumour. However, what the CAS panel was looking for in the Dutee Chand award is clearly scientific studies, supported by data and analysed by experts. Evidence in court may not always be rocket science, but CAS panels do not rely on purely anecdotic evidence either.

Meanwhile, the manner in which the topic is being dealt with today is fundamentally divisive, when we should be aiming for cohesion. It positions men against women, sports authorities against athletes, (presumed) non-hyperandrogenic females against (suspected) hyperandrogenic ones. The level playing field is an ever-elusive ideal – some may call it an illusion or utopia - but one worth striving for. It is one of the primary reasons humans bother to look at a couple of other humans running around a 400m loop. Perhaps regrettably, giving legal contours to the level playing field will always involve compromise of some sort, leaving out certain factors to include others.

Today, Caster Semenya is competing legitimately under the rules currently applicable to her. End of the story. And she is entitled to enjoy it - like any other individual, male or female, - who invested years of their lives into their Olympic dream. Let us continue the debate around the legitimacy of gender categories in sport, but without tarnishing the reputation of individuals in the process.

[i] See e.g. http://www.bbc.com/sport/olympics/37102204 (accessed 18.08.16): “For what greater indication of unfair advantage could there be, when the IAAF is trying to buttress its case, than a victory unlike anything history has ever seen before”.

“One day Alice came to a fork in the road and saw a Cheshire cat in a tree. ‘Which road do I take?’ she asked. ‘Where do you want to go?’ was his response. ‘I don’t know,’ Alice answered. ‘Then,’ said the cat, ‘it doesn’t matter.”

Tomorrow the Foundation Board of the World Anti-Doping Agency (WADA) will gather in Glasgow for its most important meeting since the creation of the Agency. Since the broadcasting of a documentary alleging systematic doping in Russian athletics by the German public broadcaster in December 2014, the anti-doping world has been in disarray. The various independent investigations (the Pound Report and the McLaren Report) ordered by WADA into doping allegations against Russian athletes have confirmed the findings of the documentary and the truth of the accusations brought forward by Russian whistle-blowers. Undeniably, there is something very rotten in the world anti-doping system. The current system failed to register a widespread, and apparently relatively open, state-sponsored scheme aimed at manipulating any doping test conducted in Russian territory. Moreover, it was not WADA that uncovered it, but an independent journalist supported by courageous whistle-blowers.

This is testimony to the innocuousness of WADA’s compliance checks. The Agency loves barking in public but hardly bites. In all fairness, it is simply not equipped to properly enforce the rules it has proudly devised and promoted. To adequately reset the system, the anti-doping community needs to acknowledge that until now WADA has been more of a PR stunt than a serious global anti-doping supervisor. The practical reality of anti-doping operations must be well understood to do so. The Agency drafts and adopts the World Anti-Doping Code and its complementary international standards but it is unable to control the concrete meaning that will be given to these provisions at a local level. In other words, the world anti-doping system as it stands is a glocal construct. It is dependent on the collaboration of local institutions (national governments, agencies, laboratories, but also sports federations) for its operation and thus takes different local meanings. Either the anti-doping community recognizes this pluralist reality and renounces the ideal of a level anti-doping playing field or the structure and operation of the system must be radically changed.

In recent weeks, key stakeholders have indicated their preferences. Both an influential group of national anti-doping agencies (often public bodies financed by national states) and the International Olympic Committee have called (here and here) for WADA to exercise more stringent compliance monitoring and to be given the proper authority to police the local anti-doping enforcers. This is the only way forward if the widely shared ideal of a level playing field is to be maintained. Yet, it also implies that the IOC (representing the entire sports community) and national governments will have to substantially increase WADA’s budget. This will most likely prove difficult at a time when governments across the globe are focusing on tightening their fiscal belts. The IOC, which derives huge economic revenues from its commercial monopoly over the Olympics (and its ideals), will probably have to put its money where its mouth is and unilaterally assume a substantial raise of WADA’s budget (from  $27,484,828 in 2015). To illustrate the scale of the expansion needed: in 2015 WADA had only 81 employees (compared with more than 11,000 athletes participating in the Rio Olympics). In these conditions, it can hardly monitor the particular workings of each national anti-doping agency and laboratory around the globe. The Agency will need to recruit in-house investigators in droves if it is to fulfil the responsibility that the IOC and NADOs want to endow it with. If WADA stays underfunded and understaffed, we will continue to witness just another example of organized irresponsibility. WADA would be tasked with an impossible mission in order to deflect the blame for failing to rein doping from other institutions that would have had the means to act but declined to do so.

To succeed in ensuring a more-or-less comparable enforcement of the World Anti-Doping Code around the globe, WADA will not only require more resources. It will also need to radically change its mind-set. The Agency must acknowledge that its anti-doping mandate is a Sisyphus-like task. It will never be fully achieved and to even approach achieving it will require the enrolment of whistle-blowers and the media. For this to happen, the former must be able to trust that they will not irremediably damage their professional/personal careers (the IOC’s treatment of Stepanova is an obvious counter-example) and the latter would need to have access to much more publically available data on anti-doping enforcement to know where to look. 

Finally, even if WADA were to morph into a trustworthy watchdog patrolling the globe to ensure a minimum level of compliance with its rules and standards, it would still need to rely on the disciplinary power of the IOC and the other Sports Governing Bodies to back-up its monitoring activities. The controversial decision of the IOC to let the Russian athletes compete in Rio, despite WADA’s recommendation otherwise, highlights the resistance it might face. Enhanced monitoring and compliance checks will have a deterrent effect only if they are followed-up by substantial sanctions.

The future of the fight against doping is on the table this weekend. Like Alice in Wonderland, the WADA is at a fork in the road, and to choose the right path it will need to decide first where it wants to go.