Piotr is an intern at the ASSER International Sports Law Centre.
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.
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).
In 2013 the Indian Ministry of Youth Affairs and Sport introduced the Standard
Operative Procedure which became binding on the SAI.
The purpose of the measure was to establish rules governing investigations,
diagnosis and assessment of eligibility to compete of female athletes with
to Ms. Chand, in mid-2014 she was asked by the Director of the AFI to undergo a doping test.
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
She was then subjected to an ultrasound scan instead of a blood test.
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
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.
The information subsequently reached the media, thus compromising the
confidentiality of the athlete’s case.
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.
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
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
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
III. Should the Regulations be regarded
IV. Are the Regulations invalid because
they are a form of unauthorised anti-doping sanction?
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
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
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.
Moreover, referring to the decision in Pistorius,
the Panel indicated that the balance of probabilities was to be the appropriate
standard of proof.
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’.
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.
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.
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).
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.
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,
no correlation between testosterone levels and LBM can be established.
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.
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.
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),
the fact that the samples were not taken for medical purposes,
the timing of the blood samples (those were taken after competitions when
testosterone levels in men are likely to be decreased),
and the lack of a discussion on the correlation between testosterone and LBM.
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
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.
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.
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.
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.
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
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
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.
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.
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.
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
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.
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.
It also noted that there are two categories of competitions, namely male and
female, and that they cover all athletes wishing to compete.
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.
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.
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’
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
Hence, the CAS was not able to conclude that
hyperandrogenic female athletes enjoy a substantial competitive advantage. 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.
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.
Also, athletes banned on the basis of hyperandrogenism can resume competing as
soon as they comply with the eligibility criteria.
Finally, the Panel noted that the Regulations do not purport to modify,
supplement, or expand the WADA’s list of prohibited substances.
Consequently, the athletes last ground of appeal was rejected by the CAS.
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.