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 Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 1 - By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.*

 

1. Introduction.

The so-called specificity of sport represents one of the most debated, if not the most debated, but still undefined issue under European Union (EU) law. A noteworthy peculiarity is that the specificity of sport is frequently mentioned in several legislative and political documents issued by EU institutions, however it is not expressly referred to in any judgment by the European Court of Justice (ECJ).Conversely, the Court of Arbitration for Sport (CAS) case-law on Art. 17 of FIFA Regulations on status and transfer of players (RSTP) has repeatedly and expressly referred to the specificity of sport.[1] Apparently, the concept of specificity of sport has different meanings and purposes in the ECJ and CAS jurisprudence. In this blog (divided in two parts), I will try to analyse those two different meanings and to what extent the CAS case-law is consistent with the concept of specificity of sport as elaborated under EU law. More...

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.” More...



The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

 

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet! More...


The SFT’s Semenya Decision under European human rights standards: Conflicting considerations and why a recourse could be successful at Strasbourg - By Kevin Gerenni

Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of Economics.


Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward some concerning reasoning in terms of public policy (“ordre public”) and human rights. In case Semenya decides to challenge the Swiss state before the ECtHR, one can expect the case to shake some grounds at the ECtHR, which would be faced with the question of the application to sport not of fair trial guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right to private life (Article 8 ECHR).

Under Swiss law, the reasons that may lead to the annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act (PILA). Semenya’s strongest case relied on art. 190(2)(e): the award’s incompatibility with public policy. Naturally, this point concentrated most of the SFT’s attention. In order to analyze the compatibility of the CAS award with Swiss public policy, the SFT focused on three main potential breaches of human rights: prohibition of discrimination, personality rights, and human dignity. In doing so, it put forward certain observations that differ with European human rights standards and the ECtHR’s jurisprudence. The purpose of this short article is to analyze those discrepancies and, consequently, Semenya’s prospects of success before the Strasbourg Tribunal.More...


Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati

Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

 

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).More...

Caster Semenya Case Exposes Design Flaws in International Sports Governance - By Roger Pielke Jr.

Editor's note: Roger Pielke Jr. is a professor at the University of Colorado Boulder

 

The decision this week by the Swiss Federal Tribunal not to revisit the arbitral decision of the Court of Arbitration for Sport (CAS) in the case of Caster Semenya was not unexpected, but it does help to expose a major design flaw in international sports governance. Specifically, the institutions that collectively comprise, create and enforce “sports law” appear incapable of addressing flawed science and violations of basic principles of medical ethics.

While different people will have different, and legitimate, views on how male-female competition classifications might be regulated, the issues highlighted involving science and ethics are not subjective, and are empirically undeniable. In normal systems of jurisprudence, procedures are in place to right such wrongs, but in sports governance processes in place prevent such course corrections. And that is a problem.

The empirical flaws in the science underpinning the IAAF (now World Athletics) Semenya regulations are by now well understood, and have been accepted by WA in print and before CAS (I was an expert witness for Semenya, and was present when IAAF accepted responsibility for the flawed research). You can read all the details here and in the CAS Semenya decision. I won’t rehash the flawed science here, but the errors are fatal to the research and obvious to see.

One key part of the comprehensive institutional failures here is that the journal which originally published the flawed IAAF research (the British Journal of Sports Medicine, BJSM) has, inexplicably, acted to protect that work from scrutiny, correction and retraction. Normally in the scientific community, when errors of this magnitude are found, the research is retracted. In this case, the BJSM refused to retract the paper, to require its authors to share their data or to publish a critique of the IAAF analysis. Instead, upon learning of the major errors, the BJSM published a rushed, non-peer reviewed letter by IAAF seeking to cover-up the errors. All of this is non-standard, and a scandal in its own right.

The violation of basic principles of medical ethics required by the implementation of the WA Semenya regulations is also not contested. Both WA and the IOC have claimed to uphold the World Medical Association’s Helsinki Declaration on medical and research ethics. Yet, the WMA has openly criticized the WA regulations as unethical and asked doctors not to implement them. In response, WA has stated that it will help athletes who wish to follow the regulations to identify doctors willing to ignore medical ethics guidelines.

Flawed science and ethical violations are obviously issues that go far beyond the case of Caster Semenya, and far beyond sport. In any normal system of jurisprudence such issues would prove readily fatal to regulatory action, either in the first instance of proposed implementation or via review and reconsideration.

Sport governance lacks such processes. At CAS, the panel claimed that matters of scientific integrity and medical ethics were outside their remit. The SFT is allowed to reconsider a CAS decision only on narrow procedural grounds, and thus also cannot consider matters of scientific integrity or medical ethics. So far then, the flaws in the WA regulations – sitting in plain sight and obvious to anyone who looks, have not been correctable.

This leaves the world of sport governance in a compromised position. Some may look past the scientific and ethical issues here, perhaps judging that barring Semenya from sport is far more important that correcting such wrongs. 

Regardless of one’s views on sex and gender classification in sport, the WA regulations and the processes that produced and have challenged them reveal that sports governance has not yet entered the 21st century. Science and ethics matter, and they should matter in sport jurisprudence as well.  It is time to correct this basic design flaw in international sport governance.

Caster Semenya at the SFT – in 10 points - By Jack Anderson

Editor's note: Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne

 

1.     Caster Semenya appealed to the Swiss Federal Court (SFT) arguing that World Athletics’ regulations violated human rights principles relating to gender discrimination and human dignity. The Swiss Federal Tribunal (as at CAS) held that World Athletics’ regulations may prima facie breach such human rights principles but were “necessary, reasonable and proportionate” to maintain fairness in women's athletics;


2.     Although in part addressed at the SFT, expect further legal argument on this in the domestic courts of South Africa or at the ECtHR, and in the following ways:

  • Necessity - is the athletic advantage that Caster Semenya has of such a scientifically-measurable extent that it is necessary for World Athletics to intervene in such an invasive manner? In a broader ethical sense, is the incidence of what the World Athletics’ regulations call “difference of sex development” of such prevalence in the general population, and specifically in middle-distance athletics, that, by way of the principle of “sporting beneficence”, intervention is justified. Or, in contrast, is the incidence of DSD not at a level which justifies a departure from the ethical principle of primum non nocere – first, do no harm?
  • Reasonableness - if World Athletics’ regulations are necessary, is the manner of implementation reasonable and in line with the principle of human and bodily integrity? In answering such a question, the focus must be on the fact that in order to continue to compete in her favourite events (such as the 800 metres) Caster Semenya will have to lower her testosterone level through medication;
  • Proportionate - if World Athletics’ regulations are necessary and reasonable is the manner of implementation proportionate? In answering such a question, the focus must be on whether the regulations disproportionately discriminate against a certain, limited group of athletes in a certain, limited number of events and in a certain, limited manner.More...


Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision - By Marjolaine Viret

Editor's note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.

 

On 25 August 2020, the Swiss Supreme Court (Swiss Federal Tribunal, SFT) rendered one of its most eagerly awaited decisions of 2020, in the matter of Caster Semenya versus World Athletics (formerly and as referenced in the decision: IAAF) following an award of the Court of Arbitration for Sport (CAS). In short, the issue at stake before the CAS was the validity of the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation). After the CAS upheld their validity in an award of 30 April 2019, Caster Semenya and the South African Athletics Federation (jointly: the appellants) filed an application to set aside the award before the Swiss Supreme Court.[1] The SFT decision, which rejects the application, was made public along with a press release on 8 September 2020.

There is no doubt that we can expect contrasted reactions to the decision. Whatever one’s opinion, however, the official press release in English does not do justice to the 28-page long decision in French and the judges’ reasoning. The goal of this short article is therefore primarily to highlight some key extracts of the SFT decision and some features of the case that will be relevant in its further assessment by scholars and the media.[2]

It is apparent from the decision that the SFT was very aware that its decision was going to be scrutinised by an international audience, part of whom may not be familiar with the mechanics of the legal regime applicable to setting aside an international arbitration award in Switzerland.

Thus, the decision includes long introductory statements regarding the status of the Court of Arbitration for Sport, and the role of the Swiss Federal Tribunal in reviewing award issued by panels in international arbitration proceedings. The SFT also referred extensively throughout its decision to jurisprudence of the European Court of Human Rights (ECtHR), rendered in cases related to international sport and the CAS. More...

New Transnational Sports Law Articles Released on SSRN - Antoine Duval

I have just released on SSRN four of my most recent articles on Lex Sportiva/Transnational Sports Law. The articles are available open access in their final draft forms, the final published version might differ slightly depending on the feedback of the editors. If you wish to cite those articles I (obviously) recommend using the published version.

I hope they will trigger your attention and I look forward to any feedback you may have!

Antoine


Abstract: This chapter focuses on the emergence of a transnational sports law, also known as lex sportiva, ruling international sports. In the transnational law literature, the lex sportiva is often referred to as a key example or case study, but rarely studied in practice. Yet, it constitutes an important playground for transnational legal research and practice, and this chapter aims to show why. The focus of the chapter will first be on the rules of the lex sportiva. Law, even in its transnational form, is still very much connected to written rules against which a specific behaviour or action is measured as legal or illegal. As will be shown, this is also true of the lex sportiva, which is structured around an ensemble of rules produced through a variety of law-making procedures located within different institutions. The second section of this chapter will aim to look beyond the lex sportiva in books to narrate the lex sportiva in action. It asks, what are the institutional mechanisms used to concretize the lex sportiva in a particular context? The aim will be to go beyond the rules in order to identify the processes and institutions making the lex sportiva in its daily practice. Finally, the enmeshment of the lex sportiva with state-based laws and institutions is highlighted. While the lex sportiva is often presented as an autonomous transnational legal construct detached from territorialized legal and political contexts, it is shown that in practice it operates in intimate connection with them. Hence, its transnational operation is much less characterized by full autonomy than assemblage.


Abstract: This chapter aims to show that the work of the Court of Arbitration for Sport (‘CAS’), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports governing bodies (‘SGBs’), govern international sports. It is argued that, instead of purity and autonomy, the CAS’ judicial practice is best characterised by assemblage and hybridity. This argument will be supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights (‘ECHR’), within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterising contemporary legal practice.


Abstract: Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6(1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.


Abstract: In 1998 the FIFA welcomed the Palestinian Football Association as part of its members - allegedly, as an attempt by then FIFA President, the Brazilian João Havelange, to showcase football as an instrument of peace between Israeli and Palestinians. Ironically, almost 20 years after Palestine’s anointment into the FIFA family, instead of peace it is the conflict between Israeli and Palestinians that moved to FIFA. In recent years the Palestinian Football Association (PFA) and the Israeli Football Association (IFA) have been at loggerheads inside FIFA over the fate - I will refer to it as the transnational legality – of five (and then six) football clubs affiliated to the IFA which are physically located in the Israeli settlements in the Occupied Palestinian Territories (OPT). This chapter chronicles the legal intricacies of this conflict, which will serve as a backdrop to discuss arguments raised regarding the legality of business activities of corporations connected to the Israeli settlements. Indeed, as will be shown in the first part of this chapter, the discussion on the legality of economic activities in the OPT has recently taken a business and human rights turn involving systematic targeting of corporations by activists. Interestingly, we will see that this business and human rights turn also played a role in the conflict between the IFA and the PFA. This case study is therefore an opportunity to examine how the strategy of naming and shaming private corporations, and in our case not-for-profit associations, for their direct or indirect business involvement in the settlements has fared. It is also an occasion to critically assess the strength of the human rights ‘punch’ added to the lex sportiva, by the UNGPs.

International and European Sports Law – Monthly Report – June - August 2020 by Thomas Terraz

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

 

The Headlines

CAS Decision on Manchester City FC Case

After the UEFA’s Adjudicatory Chamber of the Club Financial Control’s (CFCB) decision earlier this year to ban Manchester City FC for two seasons, observers waited impatiently to see the outcome of this high profile dispute. The CFCB’s decision had found that Manchester City FC overstated sponsorship revenues and in its break-even information given to UEFA. While some feared this showdown could lead to the demise of UEFA’s Financial Fair Play (FFP) regulations, the now publicized CAS panel’s decision is more nuanced. The panel’s decision turned on (see analysis here and here) (a) whether the ‘Leaked Emails’ were authentic and could be admissible evidence, (b) whether the ‘CFCB breached its obligations of due process’, (c) whether the conclusions of the 2014 Settlement Agreement prevents the CFCB from charging Manchester City FC, (d) whether the charges are time-barred, (e) the applicable standard of proof, (f) whether Manchester City FC masked equity funding as sponsorship contributions, and (g) whether Manchester City FC failed to cooperate with CFCB. In the end, among other findings, the Panel held that some of the alleged breaches were time-barred but maintained that Manchester City FC had failed to cooperate with CFCB’s investigation. In light of this, the Panel significantly reduced the sanction placed on Manchester City FC by removing the two-season suspension and reducing the sanction from 30 million euros to 10 million euros.

 

Qatar Labour Law Reforms Effectively Abolishes the Kafala System

Just a few days after Human Rights Watch released a lengthy report on abusive practices suffered by migrant workers in Qatar, Qatar adopted a series of laws that effectively gets rid of the Kafala system by no longer requiring migrant workers to obtain a ‘No Objection Certificate’ from their employer in order to start another job. The International Labour Organization declared that this development along with the elimination of the ‘exit permit requirements’ from earlier this year means that the kafala system has been effectively abolished. In addition to these changes, Qatar has also adopted a minimum wage that covers all workers and requires that employers who do not provide food or housing at least give a minimum allowance for both of these living costs. Lastly, the new laws better define the procedure for the termination of employment contracts.

In reaction to these changes, Amnesty International welcomed the reforms and called for them to be ‘swiftly and properly implemented’. Indeed, while these amendments to Qatar’s labour laws are a step in the right direction, Amnesty International also cautions that the minimum wage may still be too low, and in order to be effective, these new laws will have to be followed with ‘strong inspection and complaint mechanisms’.

 

CAS Decision Concerning Keramuddin Karim Abuse Case

In June of last year, Keramuddin Karim, former president of Afghanistan’s soccer federation, was banned by FIFA for life (see the decision of the adjudicatory Chamber of the FIFA Ethics Committee) after reports of sexual and physical abuse that emerged in late 2018. Following a lengthy and tumultuous investigation in Afghanistan, Afghan officials came forward with an arrest warrant for Mr. Karim. Nevertheless, despite attempts to apprehend Mr. Karim, Mr. Karim has still avoided arrest over a year later. Most recently in August, Afghan Special Operation officers attempted to apprehend him but he was not at the residence when they arrived.

Meanwhile, Mr. Karim had appealed FIFA’s lifetime ban to the CAS and the CAS Panel’s decision has recently been released. In its decision, the Panel upheld both the lifetime ban and the 1,000,000 CHF fine, finding that due to the particular egregious nature of Karim’s acts, ‘they warrant the most severe sanction possible available under the FCE’. Since both Karim and his witnesses were unable to be heard, the case raises questions connected to the respect of fundamental procedural rights at the CAS.  More...

Asser International Sports Law Blog | The Spanish TV Rights Distribution System after the Royal Decree: An Introduction. By Luis Torres

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 Spanish TV Rights Distribution System after the Royal Decree: An Introduction. By Luis Torres

On the first of May 2015, the Spanish Government finally signed the Royal Decree allowing the joint selling of the media rights of the Spanish top two football leagues. The Minister for Sport stated that the Decree will allow clubs to “pay their debts with the social security and the tax authorities and will enable the Spanish teams to compete with the biggest European Leagues in terms of revenues from the sale of media rights”.[1]Although the signing of the Royal Decree was supposed to close a very long debate and discussion between the relevant stakeholders, its aftermath shows that the Telenovela is not entirely over. 

This blog post will first provide the background story to the selling of media rights in Spain. It will, thereafter, analyse the main points of the Royal Decree and outline how the system will work in practice. Finally, the blog will shortly address the current frictions between the Spanish League (LFP) and the Spanish football federation (RFEF). 


I. The road to the royal decree 

The old individual selling system 

The individual selling model of media rights in Spain was adopted in the 1997/1998 season. The Spanish individualized marketing system required that the TV operators and the clubs sign individual agreements over the media rights for La Liga games. Obviously, not all the agreements were born equals. The two biggest clubs in Spain, Real Madrid and FC Barcelona, were soon deriving much more revenue from TV rights as the other clubs. Hence, it is not surprising that latter have been asking for a bigger share of the TV rights revenues since then. For the 2014/15 season, for example, Barcelona and Madrid earned 140 million € each, whereas Córdoba, Eibar and Deportivo la Coruña have only earned 17.5 million €. Even the last winner of La Liga (Atlético de Madrid) has received only 45 million € (3.1 times less than Barcelona and Madrid). Meanwhile, the overall sum paid by the operators to all the teams (MEDIAPRO Agency and PRISA Media Group) reached 742.5 million €/year for a three-year deal (2012/13 to 2014/15).[2] 

Due to the delay in approving the Royal Decree, some clubs (such as Barcelona) decided to sign an individual contract with a TV operator for the 2015/16 season. Consequently, it is unlikely that La Liga will be able to collectively sell its media rights for the next season. However, the new system should be in place for the 2016/17 season.  

Disagreements prior to the Royal Decree 

The negotiating process prior to signing the Royal Decree involved three main stakeholders: the Spanish Government (CSD –High Sports Council- and the Minister for Sport), the RFEF and, obviously, the LFP. The most difficult hurdle to overcome was the RFEF’s demand of a non-negotiable 2% share of the broadcasting revenues. Both the CSD and the LFP refused to budge and considered that the RFEF should not get more than 1%. The negotiations were especially tense as a consequence of a personal feud between the presidents of the main bodies involved.  

Why a Royal Decree? 

Notwithstanding the RFEF’s outspoken disapproval, the Royal Decree 5/2015 was adopted by the Council of Ministers on 30 April 2015 and was published in the Official Journal on the following day. In principle, a Royal Decree is only used for extraordinary and urgent matters and the Spanish Parliament must consolidate it in a law 30 days after its approval, which was done, last week. Nevertheless, one may question whether this was truly a matter of urgency requiring the introduction of a Royal decree. According to the explanatory memorandum of the Royal Decree it is justified on the basis of the public interest in securing a new system to commercialize the media rights. The justifications included in the Decree read as follows: 

“Concerning the media rights of professional football competitions, three reasons justify the need for an urgent response by the Government: first, the undisputed social relevance of professional sport, second, the repeated and unanimous demands to intervene from all parties involved and, finally, the need to promote competition in the market for the ‘pay-per-view’ television.”[3]

 

II. The new LFP’s media rights collective selling system 

The LFP’s media rights remain owned by the clubs. However, the football clubs are obliged to assign the right to commercialize them to the organizing bodies of the competition, i.e. the LFP (first and second division) and the RFEF (the cups).[4] 

The conditions for the joint selling of the media rights

In accordance with article 4 of the Royal Decree, the organising bodies will commercialize the media rights on an exclusive or non-exclusive basis.  Moreover, the procedure must be fair and equitable. The LFP and the RFEF will define the different packages commercialized in line with Article 4(4) of the Royal Decree.  These conditions will be attached by the organizing body into categories (‘packages’), depending whether it is on an exclusive basis or not, the time of the game and the duration (maximum 3 years), in accordance with the Article 4(4). The structure of the packages will be set out when the collective selling takes place.  

The specific distribution key of the revenues derived from the collective selling is enshrined in Article 5: 90% of the revenues will go to the first division clubs, and 10% to the second division clubs.   

Graph: Distribution of the money regarding the media rights of the first and second division:


 


Payments by the clubs after the distribution of revenue: The overdue debts to the Public Revenue and the indirect solidarity contributions.  

After receiving their share of revenue from the media rights, the clubs must first cover their overdue debts with the Spanish tax authorities. Indeed, Article 6(2) holds that “(t)he payment of overdue and payable debts owed to the ‘State Agency Tax Administration’ and the ‘General Treasury of the Social Security’ shall be considered on a preferential basis”. No club will be able to carry out the indirect solidarity payments foreseen by Article 6(1), if they do not reimburse their outstanding liabilities with the public authorities.

It is a well-known fact that Spanish football clubs have accumulated large amounts of debts over recent years. Indeed, at the end of the year 2013, the debt of the Spanish football amounted to 3.600 million € in total, with “around 700 million” to the public authorities. The Royal Decree is also aimed at tackling this longstanding debt “addiction” of many Spanish football clubs.                                             

Furthermore, in accordance with article 6(1) of the Decree, the clubs will have to make solidarity contributions to specific funds and Institutions promoting football and sport. These contributions will only be made after the obligatory contributions to the tax authorities have been paid. The five contributions include:

  1. 3.5% of the broadcasting revenues will be used to create a ‘Compensation Fund’ in order to assist relegated clubs from the first Division to the second and from the second division to the third division (in Spain known as the second division “B”). Out of the Compensation Fund, 90% will flow to the relegated clubs from the first Division and 10% to the relegated clubs from the second Division.

  2. 1% of the broadcasting revenues will go to the LFP for the purpose of promoting the League on the domestic and international market.

  3. 1% of the broadcasting revenues will go to the RFEF as a solidarity contribution to develop amateur football[5].

  4. Up to 1% of the broadcasting revenues will go to the Consejo Superior de Deportes (CSD), a Spanish Governmental body encouraging the development of sport in Spain. The goal of this contribution is to finance the social protection of high-level athletes (not just football players).

  5. A further 0,5% of the broadcasting revenues will go to the CSD, and shall be distributed in the following way:

    1. Aid to female football clubs participating in the Women’s First Division, covering social security contributions.

    2. Aid to football clubs participating in the Second Division “B”, in order to pay social security contributions.

    3. Aid to associations or unions of players (‘AFE’), referees, coaches and trainers. 


The Spanish cup and Supercup revenue-sharing criteria

The packages will be made according to the criteria similar to those applicable to the LFP’s media rights. The revenue generated by the RFEF’s competitions will be shared as follows (Article 8):

  1. 90% will be directly allocated to the LFP teams (first and second division). This money will be distributed to these clubs using similar criteria as for LFP Competitions. The revenue share depends on the results obtained by the teams in the cup. The distribution envisaged foresees 22%, for the winner; 16%, for the runner-up; 9%, for the semi-finalists; 6%, for the quarter-finalists; and 2,5%, for the clubs who got knocked-out the round of the last 16.

  2. 10% will be used for the promotion of lower (semi) professional football and amateur football, that is to say, for clubs who play in the cup but are not in first or second division.


III. The Problem with the Decree: RFEF and AFE’s Opposition 


The main beneficiaries, i.e. the clubs, are quite exultant after the publication of the Royal Decree. Nonetheless, two bodies believe that they are the principal losers of the distribution model adopted, namely the RFEF and AFE (Spanish Professional Footballer's Association). In fact, the RFEF and AFE’s discontent is such that they have threatened to organize a strike paralysing the last few games of the current season, should the Decree not be renegotiated.

RFEF

The RFEF wanted 2% of the total revenue for itself, but the Decree allocated to the RFEF only 1% of the total. , As discussed above, this share will be paid indirectly by the club as outlined in Article 6(1). This implies that the federation will get paid only once, and if, the clubs have serviced their overdue debts with the public authorities.

In addition to this, the Federation did not obtain any compensation for women’s football or (semi) professional football in lower divisions. The competence for supporting women’s football and lower professional football rests with the CSD even though it is the RFEF that is in charge of the organisation of the competitions. In other words the RFEF has no control over the money flowing into the competitions it is responsible for. 

AFE

The frustration expressed by AFE (Professional Footballer's Association) is also understandable. The players have not obtained a fixed share of the broadcasting revenues, as is the case in England (1.5%) or France (1.09%). Nevertheless, according to the Royal Decree, AFE will receive from the CSD a contribution of “up to 0.5%” (Article 6(1)(e), par. 3). Moreover, the players’ representatives claim they were unjustifiably excluded from the negotiations. Without the ability of partaking to the negotiations, they were unable to secure higher guarantees for the players regarding the payment of the salaries in the lower divisions of Spanish football. Given that many players do not receive their salaries on time in the lower Spanish divisions, this money would have been a potential solution to a chronicle problem.

The strike

In return, AFE (supported by elite players like Casillas, Xavi, Piqué or Ramos) threatened with a strike. For its part, RFEF suspended all the Spanish football competitions. In response to these moves, the LFP lodged a case against AFE in the Spanish Courts, requesting the suspension of the strike and the recognition of its illegality as it would lack a legitimate ground and would violate the existing collective bargaining agreement. 

The Audiencia Nacional (the National High Court in Spain) decided on 14 May in a preliminary decision to suspend the strike. This decision ensured that the last two games of the season and the final of the Copa del Rey will be played. The case is still pending and awaits a decision on the merits. The hearing will be held on 17 June. The parties have already commenced negotiations in order to reach an agreement before the hearing. But, given that the Royal Decree has been ratified by the Parliament, very few substantial changes to the system put in place by the Decree can be made. Thus, only minor peripheral adjustments are to be expected.  

Conclusion

In my opinion, there are two key aspects that must be kept in mind. First, the duty to pay overdue debts to the public Authorities. This mandatory requirement cannot be found in any other countries and is clearly linked with the specific problems that exist in Spanish football with regard to the clubs’ indebtedness and the enmeshment of local politicians in their management. On the other hand, the other key change introduced by the Royal Decree will be that La Liga will be in a position to negotiate a much hoped for gigantic TV deal with the broadcasters. A deal, which will not exclusively benefit Real Madrid and FC Barcelona. The economic gap between these two teams and the rest of the pack was growing bigger and bigger over the last years. With the new system in place, this gap is poised to be reduced. Nevertheless, the distribution method still heavily favours the status-quo. The traditionally large clubs are rewarded for having a large number of supporters, and for their past performances. Hence, it is still virtually impossible for a smaller Spanish clubs to become, over a short time span, one of the top-earning clubs in La Liga.



[1] IUSPORT: “Aprobado el Real Decreto-Ley de los derechos audiovisuales del fútbol”

http://iusport.com/not/6713/aprobado-el-real-decreto-ley-de-los-derechos-audiovisuales-del-futbol/

[2] MARCA, “Así será el reparto del dinero televisivo”, available at http://www.marca.com/2015/05/01/futbol/1430467483.html

[3] RD 5/2015, Explanatory Memorandum.

[4] Article 2 RD 5/2015.

[5] This percentage may be expanded by agreement

Comments (3) -

  • Marca Espana

    6/23/2015 1:20:22 PM |

    Interesting that the article fails to even mention that the new and "fairer" revenue sharing system will not be applicable until at least 2022 since the royal decree's transitional disposition provides that Barca and Real will continue to earn as much as they have been earning for at least six seasons. Smoke and mirrors but not a lot of change for the next six years. Our Spanish friends may have hoped that nobody would read the small print...

    For a more complete take on the new decree, I suggest reading the following article published by The Independent.

    www.independent.co.uk/.../...tv-deal-10243057.html

  • Luis Torres

    6/23/2015 3:56:16 PM |

    Thanks for the comment. You are right to point out that Real Madrid and FC Barcelona will continue to earn as much as they earned this season (2014/15) for the next six years. However, it is important to take into account that the revenue sharing favours the status quo. This is a formal way to state that RM and FCB are not going to suffer a disadvantage when the time to share the money comes.
    The second transitional provision (pages 15-16 of the Decree) will only jeopardise the applicability of new collective selling system if LaLiga sells the TV rights for a total amount which is less than the amount for which they are sold now individually by the clubs themselves. However, provided that the amount of money paid for the collective rights is bound to increase, the scenario that you sketch is, in my opinion, hypothetical.
    This provision, and specifically its point b), assures that if any club receives an amount lower than the amount received this season (2014/15) with the individual selling system, the other clubs will have to “compensate” this club. In other words, the clubs that are receiving a higher amount through the new collective selling system, will have to give this positive income to clubs which receive a lower amount.
    To conclude, and taking into account the amount that La Liga is expected to receive for the collective selling (at least €1,000M per season for the upcoming years), the situation you are exposing is merely hypothetical.
    Nonetheless, you are right, both RM and FCB will receive at least the same amount as this season, in a way similar as all the other clubs, who will also receive at least the same amount as this season.

    • Marca Espana

      6/24/2015 12:19:15 PM |

      Apologies but the numbers just do not add up. If La Liga were to sell its TV rights for the €1,000M that you mention (i.e. €900M for the first division and €100M for the second division), Real's and Barca's calculation would be as follows:

      - €22.5M which is 1/20 of the common pool
      - €37M of the merit pool for Barca. Real a bit less, about €34M since it has had worse results during the last few seasons
      - €45M of the support pool (which is capped at 20% for each club and it is likely that, since they are fully in control of the committee that decides how this is calculated, Real and Barca will pay themselves the maximum)

      This means that if the new "fairer" system would be applicable (i.e. in the absence of the transitional disposition) Barca would be entitled to €104M and Real to €101M instead of the €140M that they earned during the 2014/5 season.

      Just by way of comparison Rayo Vallecano's earnings would increase from €18M during the 2014/5 season to approx €34M
      (€22,5M common pool + €6M + €5,5M support) if they were calculated under the new "fairer" system.

      Unfortunately and by virtue of the feudal privilege provided to Real and Barca by the transitional disposition, "mighty" Rayo will be obliged by law to give up part of this increase to "compensate" poor Real and Barca for their loss to ensure that they keep on earning at least €140M until at least 2022.

      This means that the rest of the vassal clubs will have to pay their El Clasico lords as much as €75M annually to fund their European expansion.

      Crony capitalism at its absolute best. Fortunately we are fully aware by now that the juicy bits of any law related to Real & Barca are always to be found in the additional/transitional dispositions. The preamble and the first part of the laws ("PLCs are a great form of incorporation", "We have created a fair system to distribute the TV rights", etc.) shall be ignored.

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Asser International Sports Law Blog | Why the CAS #LetDuteeRun: the Proportionality of the Regulation of Hyperandrogenism in Athletics by Piotr Drabik

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

Why the CAS #LetDuteeRun: the Proportionality of the Regulation of Hyperandrogenism in Athletics by Piotr Drabik

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

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