Editor's note
Piotr is an intern at the ASSER International Sports Law Centre.

Introduction

On 24 July the Court of Arbitration for Sport (CAS) issued its decision in the proceedings brought by the Indian athlete Ms. Dutee Chand against the Athletics Federation of India (AFI) and the International Association of Athletics Federations (IAAF) in which she challenged the validity of the IAAF Regulations Governing Eligibility of Female with Hyperandrogenism to Compete in Women’s Competition (Regulations). The Regulations were established in 2011 as a response to the controversies surrounding South African athlete Caster Semenya (see e.g. here, here, and here), and for the purpose of safeguarding fairness in sport by prohibiting women with hyperandrogenism, i.e. those with excessive levels of endogenous (naturally occurring) testosterone, from competing in women athletics competitions. Owing to the subject-matter that the Regulations cover, the case before the CAS generated complex legal, scientific and ethical questions. The following case note thus aims at explaining how the Panel addressed the issues raised by the Indian athlete. It follows a previous blog we published in December 2014 that analysed the arguments raised in favour of Ms. Chand.

The Facts

Since 2012 Ms. Chand has been a resident at the National Institute of Sports, a training facility operated by the Sports Authority of India (SAI).[1] In 2013 the Indian Ministry of Youth Affairs and Sport introduced the Standard Operative Procedure which became binding on the SAI.[2] The purpose of the measure was to establish rules governing investigations, diagnosis and assessment of eligibility to compete of female athletes with hyperandrogenism.[3] According to Ms. Chand, in mid-2014 she was asked by the Director of the AFI to undergo a doping test.[4] During a meeting with Dr. Mendiratta, the Chairperson of the AFI’s Medical Commission, the athlete was informed that she needed to undertake a routine medical examination.[5] She was then subjected to an ultrasound scan instead of a blood test.[6] While denying that the medical examination had anything to do with gender determination or hypernadrogenism testing, Dr Mendiratta admitted that a number of athletes expressed their concerns regarding Ms. Chand’s appearance, and questioned whether she should be permitted to compete in female athletics competitions.[7] After additional tests at the SAI’s training camp, Ms. Chand was notified that she would neither be allowed to compete in the World Junior Championships, nor would she be eligible for selection for the Commonwealth Games due to high levels of testosterone detected in her body.[8] The information subsequently reached the media, thus compromising the confidentiality of the athlete’s case.[9] At the end of August 2014 Ms. Chand received a letter from the AFI informing her that she has been provisionally suspended from participating in any athletics events with immediate effect.[10] On 26 September 2014 the athlete filed an appeal against the decision asking the CAS to declare the Regulations invalid and void, and to set aside the AFI’s decision.[11] Even though the decision to suspend Ms. Chand was taken by the AFI, both the IAAF and the AFI agreed to the submission of the dispute to the jurisdiction of the CAS[13] which then addressed the following issues:

I.      Do the Regulations discriminate against certain female athletes on the basis of a natural physical characteristic and/or sex?

II.    Should the Regulations be declared invalid on the basis that there is insufficient scientific evidence to uphold them?

III.  Should the Regulations be regarded as disproportionate?

IV.  Are the Regulations invalid because they are a form of unauthorised anti-doping sanction?[14]

Decision of the CAS

As a preliminary point the CAS addressed the issue of the burden and the standard of proof. Concerning the former, the parties agreed that the onus of proof as to the validity of the Regulations lies with Ms. Chand, and that in case the instrument is found to be prima facie discriminatory the burden will shift to the IAAF to establish that the Regulations are justified and proportionate.[15] If the IAAF was to succeed in establishing that the measure is justified and proportionate it was then for the athlete to disprove the grounds for the justification.[16] Ms. Chand also accepted that she bears the burden of proof as to the scientific basis for the Regulations and the issue of its validity.[17] Moreover, referring to the decision in Pistorius[18], the Panel indicated that the balance of probabilities was to be the appropriate standard of proof.[19] However, the Panel indicated that the ‘standard to justify discrimination of a fundamental right, which includes the right to compete as recognised in the Hyperandrogenism Regulations, should be to a level higher than that of the balance of probabilities’.[20]

Subsequently, and in connection to the issue of discrimination, the parties and the CAS agreed that the Regulations place restrictions on the eligibility of certain female athletes to compete on the basis of a natural physical characteristic.[21] Moreover, the instrument required female athletes to undergo testing for levels of endogenous testosterone, an obligation that does not apply to male athletes. Therefore, the Regulations were regarded by the CAS as prima facie discriminatory.[22] Consequently, it was for the IAAF to prove that the measures were necessary, reasonable, and proportionate for the purpose of establishing a level playing field for female athletes (the third issue).[23]

On the question regarding the scientific basis for the Regulations the parties agreed that lean body mass (LBM) contributes to increased sports performance, however, disagreed on the question of the effect of testosterone in generating LBM.[24] The Panel thus deemed it necessary to firstly look at the issue of the relationship between testosterone and athletic performance, and secondly, the difference between endogenous and exogenous testosterone. Concerning the former, the athlete’s expert tried to convince the Panel that on the basis of a study by Healy et al, which compared 24 variables between elite male and female athletes such as hormone levels and body fat,[25] no correlation between testosterone levels and LBM can be established.[26] It was further argued, without support in clinical or scientific data however, that the difference in LBM ratios in males and females should not be attributed solely to testosterone, but also to sociological and biological factors including the growth hormone.[27] It was also submitted, again as a mere hypothesis, that if testosterone was the key determinant of athletic performance, men with low testosterone should not be capable of successfully competing in sporting events.[28] In their response the IAAF’s experts criticized the above-mentioned study pointing at its methodological limitations (failure to use state-of-the-art methods for measuring testosterone),[29] the fact that the samples were not taken for medical purposes,[30] the timing of the blood samples (those were taken after competitions when testosterone levels in men are likely to be decreased),[31] and the lack of a discussion on the correlation between testosterone and LBM.[32] In this regard the Panel noted that, contrary to the athlete’s experts, the IAAF’s experts, relying on inter alia the Harper study, specifically addressed the relationship between testosterone and LBM. The IAAF’s experts thus established evidence for testosterone being the key factor underlying the difference in male and female athletes’ performance.[33] Moreover, the Panel agreed with the IAAF’s experts that ‘outliers’, i.e. athletes with abnormal levels of testosterone, should not be taken into account for the purpose of establishing the average testosterone levels of male and female athletes.[34] Consequently, the CAS decided that by failing to sufficiently address the issue of the relationship between testosterone and LBM, Ms. Chand did not present a case that testosterone is not a material factor in determining athletic performance.[35]

The relevance of the second sub-issue was due to the fact that the athlete and her experts agreed that exogenous testosterone has performance enhancing effects.[36] Also here the Panel was faced with contradicting evidence and testimonies. Ms. Chand’s experts indicated that the 2005 Sader study established that exogenous and endogenous testosterone may have opposite effects.[37] Furthermore, on the basis of the research done by Crewthler et al it was argued that both ‘types’ of testosterone do not necessarily lead to the same results in terms of muscle growth enhancement.[38] The IAAF’s experts did not accept these arguments. They described the Sader study as flawed in terms of the methodology used (e.g. lack of specification as to whether the subjects themselves were hyperandrogenic),[39] and submitted that the research done by Crewthler et al has not only been misrepresented since it focused on examining the short-term effects of exogenous and endogenous testosterone, but also that its findings were inconclusive.[40] Furthermore, the IAAF referred to the Cardinale and Stone study which examined both the testosterone levels and jumping abilities of female volleyball players and sprinters, and where the correlation between endogenous testosterone and performance has been established.[41] The counter argument by the athlete’s experts that the difference between sprinters and volleyball players may be due to the different nature of the two sports was considered by the Panel as a speculation and a hypothesis which cannot trump the established data and was thus rejected.[42] As a result, the CAS ruled that, based on the current scientific knowledge, it is not possible to conclude with certainty whether a difference between exogenous and endogenous testosterone exists.[43] Hence, as the burden of proof was on the athlete, she failed to prove the existence of such a difference which in turn led the CAS to conclude that there is a scientific basis for the use of testosterone as the determining factor under the Regulations.[44]

On the issue of proportionality the CAS underlined that it was of the view that endogenous testosterone is a key biological indicator of the difference between males and females.[45] It also noted that there are two categories of competitions, namely male and female, and that they cover all athletes wishing to compete.[46] However, the CAS also pointed out that it is contrary to the fundamental principles of Olympism to prevent some women from competing as a consequence of the natural and unaltered state of their body.[47] As a consequence, the Regulations could stand only if the IAAF could prove that the measures were necessary and proportionate for achieving the goal of safeguarding fair competition. And since the Regulations were based on a premise that women with hyperandrogenism enjoy a significant performance advantage, the degree of the advantage became the key issue in assessing the proportionality of the measure.[48] Here, the CAS relied on expert testimonies in order to assess both the quantitative and qualitative effects of high levels of testosterone on female athletes. Concerning the former, the CAS concluded that there is currently no evidence as to the exact effect of hyperandrogenism on female athletes’ performance.[49] Regarding the latter, the Panel found that medical examinations of female athletes are similarly not capable of providing sufficient data to illustrate what degree of competitive advantage results from endogenous testosterone over the level of 10 nmol/L that has been accepted as the threshold for the purpose of the Regulations.[50] Hence, the CAS was not able to conclude that hyperandrogenic female athletes enjoy a substantial competitive advantage.[51]  Excluding them from competing unless they agree to take medication or undergo a treatment cannot be regarded as a necessary and proportionate means of safeguarding fairness.

Lastly, the CAS rejected the athlete’s contention that the Regulations constitute an impermissible doping sanction. The Panel indicated that anti-doping sanctions seek only to punish the use of external substances by athletes and endogenous testosterone cannot be regarded as such.[52] Moreover, the CAS indicated that the Regulations provide for eligibility rules, and thus, have not been established to regulate prohibited conduct and to impose sanctions for violations, and do not involve any reprimand or censure.[53] Also, athletes banned on the basis of hyperandrogenism can resume competing as soon as they comply with the eligibility criteria.[54] Finally, the Panel noted that the Regulations do not purport to modify, supplement, or expand the WADA’s list of prohibited substances.[55] Consequently, the athletes last ground of appeal was rejected by the CAS.

Conclusion

The Dutee Chand affair has not quite reached the global climax experienced at the time of the Pistorius award in 2008. Yet, similar complex scientific facts and assessments are at play in evaluating whether high levels of endogenous testosterone provide such a competitive advantage to a women that she should be deprived of her fundamental right to compete in sporting competitions. The complexity of the matter is reflected in the length of the award (161 pages). In that regard the Pistorius decision was much shorter (14 pages). The arbitrators decided to comprehensively reflect the current state of scientific knowledge and debate over the role of high endogenous testosterone in providing a competitive edge to female athletes. This is a commendable feat of transparent decision-making by a Court and enables commentators and scientist to critically engage with the assessment made. On the scientific side of the case, the CAS arbitrators sided with IAAF. They recognise that high endogenous testosterone might provide a competitive advantage to Ms. Chand. Yet, and this is the important final twist in the decision, this does not imply that anything goes to deprive these athletes of their right to compete. Indeed, this right to compete is deemed so fundamental (obviously in line with what sport is in the end about) that a drastic restriction to it, as the one imposed on Ms. Dutee Chand, can only be justified if it is absolutely necessary and proportionate. In other words, the right to compete trumps policy decisions of international federations when these decisions are not sufficiently grounded in supporting reasons and facts. This is where the burden of proof shifts back onto the IAAF: is a high endogenous testosterone level susceptible to give an athlete such a competitive advantage that the fairness of the races be jeopardised? The IAAF has two years to demonstrate this assertion, in the meantime it will have to tolerate Ms. Chand in its competitions and we will get the opportunity to see whether or not she will outrageously dominate the world’s best runners.

[1] CAS 2014/A/3759 Dutee Chand v Athletics Federation of India and the International Association of Athletics Federations (Dutee Chand), para 8

[2] Ibidem, para 9

[3] Ibidem

[4] Ibidem, para 11

[5] Ibidem

[6] Ibidem

[7] Ibidem, para 12

[8] Ibidem, paras 15-16

[9] Ibidem, paras 17-20

[10] Ibidem, para 27

[11] Ibidem, para 75

[12] Ibidem, paras 106, 114, 358

[13] Ibidem, paras 424, 428-430, 436

[14] Ibidem, para 32

[15] Ibidem, para 441

[16] Ibidem, para 445

[17] Ibidem, paras 442-443

[18] CAS 2008/A/1480 Oscar Pistorius v the International Association of Athletics Federations

[19] Dutee Chand, paras 446-447

[20] Ibidem, para 443

[21] Ibidem, paras 448-450

[22] Ibidem, para 448

[23] Ibidem, para 449

[24] Ibidem, para 454

[25] Ibidem, para 137

[26] Ibidem, para 455

[27] Ibidem, paras 156, 460-461

[28] Ibidem, para 465

[29] Ibidem, para 456

[30] Ibidem, paras 151, 461

[31] Ibidem, para 456

[32] Ibidem

[33] Ibidem, paras 459, 462, 469

[34] Ibidem, para 467-468, 494

[35] Ibidem, paras 498-499

[36] Ibidem, para 490

[37] Ibidem, para 475

[38] Ibidem, para 478

[39] Ibidem, para 476

[40] Ibidem, para 478

[41] Ibidem, para 480

[42] Ibidem, para 481

[43] Ibidem, paras 479, 488

[44] Ibidem, paras 488, 498-499

[45] Ibidem, para 511

[46] Ibidem, para 512

[47] Ibidem, para 513

[48] Ibidem, para 517

[49] Ibidem, para 521

[50] Ibidem, para 530

[51] Ibidem, paras 524, 527, 532, 534-535

[52] Ibidem, para 543

[53] Ibidem, para 544

[54] Ibidem

[55] Ibidem, para 545