On 18 May 2016, the day the first part of this blog was published, the Commission said in response to the Hungarian MEP Péter Niedermüller’s question, that it had “not specifically monitored the tax relief (…) but would consider doing so. The Commission cannot prejudge the steps that it might take following such monitoring. However, the Commission thanks (Niedermüller) for drawing its attention to the report of Transparency International.”

With the actual implementation in Hungary appearing to deviate from the original objectives and conditions of the aid scheme, as discussed in part 1 of this blog, a possible monitoring exercise by the Commission of the Hungarian tax benefit scheme seems appropriate. The question remains, however, whether the Commission follows up on the intent of monitoring, or whether the intent should be regarded as empty words. This second part of the blog will outline the rules on reviewing and monitoring (existing) aid, both substantively and procedurally. It will determine, inter alia, whether the State aid rules impose an obligation upon the Commission to act and, if so, in what way.

In order to correctly decipher the potential consequences of Hungary’s behavior under EU State aid law, it is necessary to make a distinction between the part of the aid scheme declared compatible in the tax benefit scheme in the Hungarian sport sector decision, i.e. the donations for the sport infrastructures used by the professional sport organizations, and the donations used to cover personnel costs. Due to the fact that these two types of donation destinations were allowed based on two different exception procedures (the general exception found in Article 107(3)c) TFEU for the aid to sport infrastructure, and the General Block Exemption Regulation or the de minimis aid Regulation for the aid to cover personnel costs), the rules on reviewing and monitoring aid differ slightly. This blog will only focus on the review and monitoring rules of the tax benefit scheme in the Hungarian sport sector decision. 

Reviewing and monitoring State aid schemes – a Commission obligation?

A decision to approve an aid scheme (also known as a “positive decision” under Article 9(3) of the Procedural Regulation 2015/1589), should not fully release the Commission from any obligations regarding ex post control of that scheme. As can be read from Article 108(1) TFEU, “(t)he Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measure required by the progressive development or by the functioning of the internal market.”

The Commission’s responsibilities appear straightforward. After declaring the Hungarian tax benefit scheme compatible with EU law, it is obliged to review the implementation and usage of the aid by the Member State and the beneficiary, or beneficiaries. The CJEU settled as far back as 1974 that the Commission’s obligation to review existing aid is binding and that the Member States in question the obligation to cooperate with the Commission.[1] In fact, as Advocate General Lenz stated in his opinion in the Namur-Les Assurances du Crédit case, the Commission’s task to constantly review aid is even more necessary for aid schemes, like the Hungarian tax benefit scheme, as compared to individually authorized aid measures.[2] Pursuant to Article 108(1) TFEU and Article 21 of the Procedural Regulation, where the Commission considers that an existing aid scheme is not, or is no longer, compatible with the internal market instead of immediately launching a formal investigation, the Commission must issue a recommendation to the Member State concerned. The recommendation may propose, in particular:

1. Substantive amendment of the aid scheme;
2. Introduction of procedural requirements; or
3. Abolition of the aid scheme.[3]

It is important to note that in accordance with Article 288 TFEU, fifth sentence, recommendations have no binding force. Therefore, the proposed measure itself is not binding for the Member State. Only where the Member State accepts the proposed measure, shall it be bound by its acceptance to implement the appropriate measure.[4] However, if the Member State refuses to accept and implement the recommendations, the Commission could launch a formal investigation in accordance with Article 108(2).[5] Article 108 (1) TFEU and Article 21 of the Procedural Regulation also require the Member States to cooperate with the Commission for the purpose of reviewing aid schemes. This cooperation is further specified in Article 26 of the Procedural Regulation, which obliges Member States to submit annual reports on existing aid schemes to the Commission.[6] The reports allow the Commission to monitor the compliance with the positive decision by the Member State. As was already discussed in part 1 of this blog, Hungary too is required to submit a yearly monitoring report containing information on the total aid amount allocated, the sport infrastructure projects funded, their beneficiaries, etc.[7] A failure by Hungary to submit an annual report, would allow the Commission to propose an appropriate measure as listed above.[8] Whether Hungary actually submits annual reports to the Commission is currently unclear.      

Monitoring the tax benefit scheme in the Hungarian sport sector – not as straightforward as it appears

The Commission has repeatedly expressed its ambition for more and better monitoring of State aid schemes. This ambition follows from its primary objective to increase Commission enforcement focus on cases with the biggest impact on the internal market, as can be read from, inter alia, the State Aid Modernisation (SAM) Communication of 2012. Better targeted State aid control means an “increased responsibility of Member States in designing and implementing aid measures” for cases of a more local nature and with little effect on trade, as well as “enhanced ex post monitoring by the Commission to ensure adequate compliance” with the State aid rules.[9] In 2006, the Commission introduced a regular, ex post, monitoring exercise of existing aid schemes. The monitoring exercise gradually increased from 20 different schemes in 2006, to 75 schemes in 2014, covering all Member States, all main types of aid approved as well as block-exempted schemes.[10] The monitoring exercises conducted in 2014 led to the openings of four formal investigations.[11] The willingness to increase monitoring seems logical when taking into account EU case law, which imposes, in practice, an obligation for the Commission to review previously approved aid schemes. Yet, only a very small amount of existing aid schemes is monitored, nor is it realistically possible to do monitor all the schemes. As can be read in the recently published DG Competition Management Plan 2016, over the last 10 years the Commission declared over 3000 aid schemes or measures compatible with EU law after a the preliminary phase (“decisions not to raise objections”) alone.[12] This amount does not take into account positive decisions or block exempted aid schemes and measures, all of which should, strictly speaking, be monitored. Exact numbers on the amount of existing aid schemes currently running throughout the EU are not available, but one could safely say that the overwhelming majority of existing aid schemes are not monitored. Unless the State aid department of the Commission dramatically increases its resources, both in terms of finances and staff, monitoring all existing State aid schemes will remain utopic.  

The “specificity” of State aid to the professional sport sector and why extra monitoring in the sector should be considered

The Hungarian tax benefit scheme is not functioning in accordance with its original objectives: many of the sport infrastructure projects funded with public money do not seem strictly necessary and selected professional football clubs benefitted disproportionately. Under these circumstances, a monitoring exercise conducted by the Commission could be needed. If a monitoring exercise confirms disproportionate spreading of subsidies, a consequent set of appropriate measures taken by Hungary could bring the scheme in line with its original objectives. However, given that the majority of schemes are not monitored, there is a very big chance that the Hungarian tax benefit scheme is not one of the “lucky ones” selected. It is also unclear whether the Commission’s answer to the Parliamentary question of 18 May in any way increases that probability.  

The State aid complaint procedure as an alternative

Another way to force the Commission to look into the aid scheme, not yet discussed above, is through a State aid complaint procedure. Although the tax benefit scheme was already approved by the Commission in 2011, this should not rule out the possibility of an interested party submitting a complaint to inform the Commission of any alleged unlawful aid.[13] Pursuant to Article 12(1), the Commission is obliged to examine without undue delay a complaint by an interested party, thereby automatically triggering the preliminary State aid investigation of Article 108(3) TFEU. Although ‘unlawful aid’ refers to new aid put into effect in contravention of Article 108(3) TFEU[14], and not existing aid, such as aid schemes authorized by the Commission[15], ‘new aid’ also refers to existing aid that has been altered by the Member State.[16] In accordance with the Commission’s State Aid Manual of Procedures, for an aid scheme to be altered, the complainant would need to demonstrate that a change has taken place that affects “the evaluation of the compatibility of the aid with the common market”.[17] In addition to this, the complaint would need to include, inter alia, information on the (functioning of) the scheme, the amount of aid granted, and why the scheme is no longer compatible under Article 107(3).[18] A further highly important criterion is for the interested party to demonstrate to the Commission that the complainant is directly affected in its “competitive position” by the aid scheme.[19] This criterion empowers the Commission to separate formal complaints from the complaints that are “not motivated by genuine competition concerns”, thereby reducing considerably its workload of having to launch a (preliminary) investigation based on every single complaint it receives.[20] Complaints submitted by complainants, who the Commission does not consider to be interested parties, will be regarded as “general market information”[21] and do not oblige the Commission to investigate.  

The “specificity” of State aid to professional sport – no complaints by other clubs

The “interested party” criterion was only added after the reform of the Procedural Regulation in 2013[22], and has affected the professional sport sector considerably. The two years prior saw great activity by the Commission in the sector, including the opening of four formal investigations into alleged State aid to professional football clubs like Real Madrid and Valencia CF.[23] The investigations into alleged aid granted to Real Madrid and Valencia CF were not launched after the submission of a complaint by an interested party, but after “the attention of the Commission was drawn by press reports and information sent by citizens in 2012-2013”.[24] The end of formal investigations into alleged aid granted to professional sport clubs coincided with the introduction of the “interested party” criterion: since citizens are not considered interested parties, the Commission does not have an obligation anymore to investigate complaints, or any form of information, submitted by them. At this moment, only complaints submitted by interested parties, i.e. a party directly affected in its competitive position, have the potential of triggering fresh State aid investigations in the professional sport sector.[25]

Which persons or undertakings fulfill the “interested party” criterion? The answer to this question requires a case by case analysis and depends on the aid measure or scheme chosen by the public authorities.[26] Nonetheless, where aid is granted to a professional sport club, the clearest example of an interested party would be another professional sport club. Getting professional sport clubs to submit State aid complaints is, however, easier said than done. Contrary to other economic sectors where competitors would complain if they feel that they are directly affected in their competitive position, no professional sport club has ever submitted a State aid complaint, nor is it likely to happen anytime soon. As is confirmed by Dutch professional football club FC Groningen’s director Hans Nijland in an article published on 18 May by the Dutch magazine De Groene Amterdammer , “if (another football club) manages to sign a deal with its municipality, I will not complain. In fact, I would say congratulations, well done”.[27] The same mentality probably prevails in Hungary, making it very unlikely that a Hungarian professional football club, or any other professional sport club, decides to submit a complaint alleging unlawful aid to, say, Puskás Akadémia FC due to the disproportionate distribution of subsidies under the tax benefit scheme.  

Why extra monitoring in the sport sector should be considered

The advantages of EU State aid control include efficient government spending in the economy as well as better accountability and transparency of aid measures.[28] Nonetheless, with the chances of the Commission monitoring existing aid in professional sport, such as the Hungarian tax benefit scheme, being very slim, and given the unlikeliness of a submission of a complaint by a competing professional sport club, how useful are the State aid rules to achieve better accountability and transparency in (professional) sport? Local governments will continue spending large amounts of public money on projects that distort competition and are contrary to the general public interest, without a meaningful risk of being called back. Furthermore, as long as the Commission does not prioritize State aid enforcement to the professional sport sector, similar to how it enforces the State aid rules regarding fiscal aid to multinationals[29], it is also unlikely that it will investigate ex officio.

From the “efficient use of Commission resources” viewpoint, it is, in a way, understandable that the Commission has decided not to prioritize State aid to professional sport. They are, after all, not the most distortive State aid cases. However, this lack of prioritization is not being compensated with the submission of complaints by interested parties, meaning that public authorities have less to fear from State aid control in the professional sport factor, as compared to other market sectors.

To prevent a complete carte blanche for the public authorities, I would argue that the Commission should impose upon itself stricter conditions as regards monitoring State aid measures and scheme to the benefit of professional sport clubs. The current monitoring system, where the chance of being monitored is smaller than not being monitored, is inefficient in a sector where competitors do not serve as watchdogs. Only by radically increasing the monitoring chance in the professional sport sector can better accountability and transparency of aid measures be achieved.

[1] Case 173/73, Italy v Commission, [1974] ECLI:EU:C:1974:71, para 24.

[2] Opinion of Advocate General Lenz in Case C-44/93, Namur-Les Assurances du Crédit SA v Office Nationale du Ducroire , [1994] ECLI:EU:C:1994:262, para 86.

[3] Procedural Regulation 2015/1589, Article 22. Contrary to the decision options of formal investigations, a decision to order a recovery of the aid from the beneficiary or beneficiaries, as listed in Procedural Regulation, Articles 9(5) and 16, is not an option for the “review procedure”.

[4] Ibid., Article 23(1).

[5] The Enterprise Capital Funds (ECF) decision is a good example of a formal investigation based on ex post review and monitoring. Following a “selected” monitoring exercise in 2011, it was discovered that the UK had failed to take the appropriate measures to bring an aid scheme in line with the Commission Guidelines on Risk Capital , even though it had promised to do so. This led to the Commission opening a formal investigation in November 2011.

[6] Pursuant to Procedural Regulation, Article 26(1), the obligation to submit annual reports applies to decisions “to which no specific reporting obligations have been imposed in a conditional decision”. Under a conditional decision, the Commission attaches to a decision conditions subject to which aid may be considered compatible with the internal market. The tax benefit scheme in the Hungarian sport sector decision has no specific conditions attached to it, apart from the usual obligation for the Member State concerned to submit an annual report to the Commission.

[7] Commission Decision of 9 November 2011, SA.31722 – Hungary - Supporting the Hungarian sport sector via tax benefit scheme , para 57.

[8] Procedural Regulation 2015/1589, Article 26(2).

[9] EU State Aid Modernisation Communication of 8 May 2012 , para 19.

[10] Commission Staff Working Document of 4 June 2015, “ Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Competition Policy 2014 ”, page 10.

[11] Ibid. One of the investigations involved the Enterprise Capital Funds scheme – Supra n5.

[12] DG Competition document of 18 March 2016 REF. Ares(2016)1370536 “ Management Plan 2016 ”, page 15.

[13] Procedural Regulation 2015/1589, Article 24(2).

[14] Ibid., Article 1(f).

[15] Ibid., Article 1(b)(ii).

[16] Ibid., Article 1(c).

[17] Internal DG Competition working documents on procedures for the application of Articles 107 and 108 TFEU of 10 July 2013, State Aid Manual of Procedures , Section 5, para 1.2.1.

[18] A complaint that does not comply with the compulsory complaint form, or if the complainant does not provide sufficient grounds to show the existence of unlawful aid can be withdrawn by the Commission. See Procedural Regulation 2015/1589, Article 24(2).

[19] Form for the Submission of Complaints Concerning Alleged Unlawful State Aid or Misuse of Aid , point 3.

[20] Draft Report by the European Parliament of 19 March 2013 on the proposal for a Council Regulation amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (COM (2012) 725 final) , page 17.

[21] Supra., No 19.

[22] Council Regulation (EU) No 734/2013 of 22 July 20-13 amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty [2013] OJ L204/14.

[23] An explanation on why the public financing of sports infrastructure and professional sports clubs only started to attract State aid scrutiny in recent years can be read in: Ben Van Rompuy and Oskar van Maren, “EU Control of State Aid to Professional Sport: Why Now?” In: “The Legacy of Bosman. Revisiting the relationship between EU law and sport”, T.M.C. Asser Press, 2016.

[24] See, for example Commission decision of 18 December 2013, SA.36387 Spain – Alleged aid in favour of three Valencia football clubs, para 3. The other formal investigations to professional football clubs (i.e. Real Madrid , five Dutch football clubs and four Spanish football clubs ), were also launched after the Commission received information through citizens and/or the press.

[25] Or the Commission decides to open an investigation ex officio pursuant to Procedural Regulation 2015/1589, Article 12(1). However, this is very unlikely, given the lack of priority given by the Commission to sport.

[26] For example, in the case of the Hungarian tax benefit scheme, clubs or associations not active in the sport sector (e.g. theatre clubs, art clubs, etc.), could potentially argue that they have been placed in a disadvantageous position, since they cannot receive donations under the scheme. An aid measure provided in the form of advantageous land transactions, such as the Real Madrid case, could directly affect any undertaking interested in purchasing the same land, or any other plot of land against other market conditions.

[27] Hester den Boer and Bram Logger, “ Een spits van belastinggeld; Onderzoek – Lokale overheden blijven profvoetbal massaal steunen ”, De Groene Amsterdammer, 18 May 2016, page 5.

[28] See for example Oskar van Maren, “EU State Aid Law and Professional Football: A threat or a Blessing?” , European State Aid Law Quarterly, Volume 15 1/2016, pages 31-46.

[29] High profile formal State aid investigations into alleged aid granted by means of selective tax agreements between Member State governments and multinationals like Starbucks, Fiat, Amazon or Apple, have launched in the last few years.

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