Olympic Athlete Wins Discrimination Appeal Against Testosterone-Limits Regulation

1. Introduction

On July 11, 2023, the European Court of Human Rights held that the Court of Arbitration for Sport and the Swiss Federal Supreme Court violated the European Convention on Human Rights by failing to provide adequate institutional and procedural safeguards sufficient to protect the rights of Mokgadi Caster Semenya, a South African Olympic gold medalist runner. Semenya challenged her ineligibility to compete in certain sport events based on testosterone limits imposed by the International Association of Athletics Federations, a Monegasque non-governmental, private international governing body for the sport of athletics.

Although the decision is appealable, in our Bulletin we address the significant questions that ruling raises about the European Court’s jurisdiction, the role of the European Convention on Human Rights in arbitration, and the contours of public policy as a ground for overturning Swiss international arbitration awards.

Specifically, if unchallenged or upheld the Semenya ruling could:

• Require the Court of Arbitration for Sport to give due consideration to the European Convention when rendering awards and Swiss courts to do the same when deciding whether to uphold or set aside an award, making it easier for claimants to bring human rights claims before the Court of Arbitration for Sport.
• Broaden what constitutes public policy under Swiss international private law and provide additional grounds upon which to set aside international arbitral awards for violation of public policy.
• Provide grounds for appeal from the Swiss Federal Supreme Court to the European Court and expand the European Court’s jurisdiction to assess whether Swiss court set-aside decisions respecting international arbitration awards between private parties conform with the European Convention.
• Our discussion of the case focuses on these issues.

2. Case Summary

2.1 Court of Arbitration for Sport Award

On June 18, 2018, Semenya brought a claim before the Court of Arbitration for Sport (the CAS) for unfair discrimination against the International Association of Athletics Federations (the IAAF). The case concerned the IAAF’s eligibility regulations, which excluded Ms. Semenya from competing in female category events. Ms. Semenya has certain chromosomal features that the IAAF claims give her a significant and unfair advantage over others when competing against other females. To avoid this perceived unfairness, the IAAF devised eligibility regulations based on differences in sex development and levels of endogenous testosterone (the DSD Regulations). The DSD Regulations excluded Ms. Semenya and others with similar chromosomal characteristics from competing in female category events.

Semenya claimed that the DSD Regulations were discriminatory because they unnecessarily and unfairly only apply to female athletes and female athletes having certain physiological traits.[1] The IAAF claimed that using legal sex as a proxy to divide between males and females did not account for the chromosomal differences that advantage Ms. Semenya and others.[2] It argued it was lawful to exclude such individuals from competing in the female category because their biological differences made their inclusion unfair.[3]

On April 30, 2019, the CAS tribunal ruled for the IAAF. Applying the IAAF Constitution and Rules in conjunction with the Olympic Charter and, where necessary, Monegasque law[4]—not Swiss law—the tribunal found that the DSD Regulations were discriminatory, but necessary, reasonable, and proportionate. The tribunal reasoned that the purpose of having separate male and female categories in competition is to «protect a class of individuals who lack certain insuperable performance advantages from having to compete against individuals who possess those insuperable advantages».[5] Therefore, the tribunal found it legitimate and necessary to regulate the right to participate in the female category based on biological factors that confer a «sufficiently significant performance advantage».[6] The tribunal further found that claimants’ proportionality concerns were hypothetical, inconclusive, or irrelevant.[7]

2.2 Swiss Federal Supreme Court Ruling

On May 28, 2019, Semenya appealed to the Swiss Federal Supreme Court (the Federal Court) on several grounds, including that the CAS award contravened public policy because it violated the prohibition against discrimination, Semenya’s fundamental rights, and her right to human dignity.[8] On August 25, 2020, the Federal Court denied the appeal.[9]

As the Federal Court wrote, under Switzerland’s Private International Law Act (PILA), an arbitral award may only be set aside on narrow grounds, including if the award is incompatible with public policy. An award is only incompatible with public policy under article 190(2)(e) PILA if it disregards essential and widely recognized values that, according to prevailing Swiss conceptions, should form the basis of any legal order.[10] The public policy protection, explained the Federal Court, therefore only indirectly encompasses the European Convention on Human Rights (the Convention) and only to the extent necessary to give concrete expression to Swiss conceptions of public policy.[11]

The Federal Court further observed that the prohibition against discrimination, which is addressed to public or state entities, does not have direct horizontal effect on relations between private persons. It is therefore «far from self-evident», wrote the Federal Court, that the application of the prohibition against discrimination to private law subjects «is one of the essential and widely recognized values which, according to the prevailing view in Switzerland, should form the basis of any legal order.»[12]

2.3 The European Court of Human Rights Decision

After the Swiss Federal Supreme Court rejected Semenya’s appeal, she applied to the European Court of Human Rights (the ECtHR) for relief. The ECtHR did not balance the parties’ competing interests, but examined the institutional and procedural safeguards at the CAS and Federal Court to protect Semenya’s rights.[13]

Whereas the Federal Court assessed Semenya’s appeal under the limited and narrow grounds available to challenge an arbitral award in the PILA, the ECtHR construed Semenya’s claim as challenging the conformity of the DSD Regulations with the Convention.[14] In this context, the ECtHR found that the institutional and procedural guarantees in Switzerland were insufficient and in violation of the Convention (Arts. 8, 13, and 14). To do so, it first had to find that it had jurisdiction, a point on which three justices dissented from the majority.

2.3.1 Jurisdiction

It was not obvious that the ECtHR had jurisdiction to hear the case because, as Switzerland argued, neither the parties nor the alleged violations had a territorial link to Switzerland.[15] Further, the CAS had not applied Swiss law; rather, it applied the IAAF’s internal regulations, the Olympic Charter and, alternatively, Monegasque law.[16]

Switzerland also argued that, if the Federal Court was responsible for implementing the substantive guarantees of the ECHR, it would contradict the provisions of Swiss private international law and «call into question the very notion of arbitration and the nature of the system set up in the field of sport, which was conceived precisely because, given the international nature of the players and events involved, national courts do not offer an appropriate forum».[17]

The ECtHR still found that it had jurisdiction for three reasons. First, under Swiss private international law the Federal Court is bound to apply the Convention.[18] Second, a civil action before the Federal Court challenging an arbitral award immediately gives rise to an indisputable link between the person and the state.[19] Third, Semenya’s only remedy was CAS arbitration followed by an appeal to the Federal Court, so if the ECtHR lacked jurisdiction to hear her application, or others like it, such applicants would have no further recourse.[20]

2.3.2 Sufficiency of Institutional and Procedural Safeguards

The ECtHR found that neither the CAS nor the Federal Court conducted a «thorough examination, in light of the Convention, of the grounds supporting the objective and reasonable justification» of the DSD Regulations.[21] Despite recognizing that the PILA narrowly circumscribed the Federal Court’s review, the ECtHR criticized the Federal Court for not conducting «a full and sufficient examination of the claim of discriminatory treatment» or «a proper and sufficient weighing up of all the relevant interests at stake, as required by the Convention».[22] The ECtHR wrote that:

«. . . while the very limited control exercised by the Federal Court may be justified in the field of commercial arbitration, where companies that are generally on an equal footing agree on a voluntary basis to settle their disputes in this way, it may prove more problematic in the field of sports arbitration, where individuals are confronted with often very powerful sports organizations.[23]»

According to the ECtHR, the Federal Court should have weighed the IAAF’s interests in fair competition against Semenya’s interests in dignity, reputation, physical integrity, and her private sphere.[24]

Further, and despite the fact that under Swiss constitutional law the prohibition against discrimination applies only to state and public entities and does not have direct horizontal effect on relations between private individuals, the ECtHR affirmed that national courts are required to guarantee real and effective protection against discrimination committed by individuals.[25]

2.3.3 Joint Dissenting Opinion

In a joint dissenting opinion, Judges Grozev, Roosma, and Ktistakis challenged the majority’s holding regarding jurisdiction. The dissenting judges argued that the majority incorrectly held that, once the Federal Court has jurisdiction to hear an appeal against an arbitral award, it must apply the Convention in a full review.[26] According to the dissent, because the case was directed against Switzerland, the ECtHR’s jurisdiction must derive from Swiss law, and because the PILA only provides narrow grounds to challenge an international arbitral award, there was no foundation for extending jurisdiction.[27]

The dissent argues that, by holding that the Federal Court wrongly interpreted Swiss law and that the Swiss conception of public policy should encompass odre public and, without exception, all obligations arising from the Convention and the ECtHR’s case law, the majority’s ruling improperly interferes with the interpretation of domestic law in a manner contrary to Switzerland’s highest court. It also confers on the Convention worldwide scope, in contravention of the ECtHR’s case law and the Convention’s purpose.[28] According to the dissent, the majority had no jurisdiction to interpret Switzerland’s domestic law because there was nothing arbitrary or manifestly unreasonable about the Federal Court’s ruling. Rather, it is for national courts to interpret domestic legislation and ensure compliance with it.[29]

The minority also found unconvincing the majority’s argument that Semenya had no other means of asserting her rights. Nothing in the Convention, they wrote, suggests that it should provide universal protection for the rights it enshrines or that the national courts of the countries in which athletics competitions are organized would refuse to hear complaints of discrimination relating to such competitions. Further, wrote the minority, such national courts have greater legitimacy to examine such grievances and enforce their own legislation on their own territory than Swiss courts applying Swiss ordre public.[30]

3. Outlook

Switzerland has three months within which to appeal the ECtHR’s decision to the ECtHR’s Grand Chamber. If the decision is not appealed, or if it is upheld, the European court could in future assert jurisdiction to assess whether Swiss court set-aside decisions respecting international arbitration awards between private parties conform with the Convention.

The ECtHR’s decision could also mean that going forward the CAS must consider the Convention when rendering awards and the Federal Court must do so when deciding whether to uphold or set one aside. The CAS and Federal Court will have to determine what compliance with the ECtHR’s ruling requires, but the ruling could make it easier for claimants to bring human rights claims before the CAS. Likewise, by broadening what constitutes public policy under Swiss international private law, and by finding that the prohibition against discrimination must be directly applied even between private actors, the ECtHR’s decision may provide additional grounds on which to set aside international arbitral awards for violation of public policy. It may therefore also provide grounds for appeal from the Federal Court to the ECtHR.

We will continue to monitor the case, any appeal to the Grand Chamber, and the case’s future application. We look forward to providing you with further updates in due course.

 

[1] See Award, Semenya v. IAAF, CAS 2018/O/5794 (CAS, Apr. 30, 2019) (hereinafter «Award») ¶¶ 1-2, 12, 51-52.
[2] See Award ¶ 288-89.
[3] See Award ¶ 293.
[4] Award ¶ 425.

[5] Award ¶ 558. The parties did not dispute that ensuring fair competition in the female category of sports competition was a legitimate objective. See Award ¶ 556.

[6] Award ¶¶ 560, 584.

[7] Award ¶ 585.

[8] Semenya v. Switzerland, App. No. 10934/21 (ECtHR, Jul. 11, 2023) (hereinafter «Semenya v. Switzerland») ¶ 33 (quoting Case No. 4A_248/2019 ¶ 9).

[9] See Case No. 4A_248/2019, partially published as BGE 147 III 49.

[10] Semenya v. Switzerland ¶ 33 (quoting Case No. 4A_248/2019 ¶ 9.1).

[11] Semenya v. Switzerland ¶ 33 (quoting Case No. 4A_248/2019 ¶ 9.2).

[12] Semenya v. Switzerland ¶ 33 (quoting Case No. 4A_248/2019 ¶ 9.4) («Aussi est-il loin d’être évident de retenir que l’interdiction de discrimination émanant d’un sujet de droit privé fasse partie des valeurs essentielles et largement reconnues qui, selon les conceptions prévalant en Suisse, devraient constituer le fondement de tout ordre juridique.»).

[13] Semenya v. Switzerland ¶ 170.

[14] Semenya v. Switzerland ¶ 79.

[15] Semenya v. Switzerland ¶¶ 81-89 (referring to the challenges under European Convention Arts. 3, 8, 13, and 14).

[16] Semenya v. Switzerland ¶¶ 83-84.

[17] Semenya v. Switzerland ¶ 86 («Selon lui, un tel système non seulement contredirait les dispositions de la LDIP, mais remettrait aussi entièrement en cause la notion même d’arbitrage et la nature du système mis en place dans le domaine du sport, lequel a été conçu précisément parce qu’au regard du caractère international des acteurs et des événements impliqués, les juridictions nationales n’offrent pas un forum approprié dans ce context.»).

[18] Semenya v. Switzerland ¶ 103.

[19] Semenya v. Switzerland ¶ 104.

[20] Semenya v. Switzerland ¶ 111.

[21] Semenya v. Switzerland ¶ 184 («Compte tenu de ce qui précède, la Cour considère que ni le TAS ni le Tribunal fédéral ne se sont livrés à un examen approfondi, à la lumière de la Convention, des motifs à l’appui de la justification objective et raisonnable du Règlement DSD.»); see also ¶ 235.

[22] Semenya v. Switzerland ¶ 185 («En particulier, elle n’a pas procédé à un examen complet et suffisant du grief tiré du traitement discriminatoire, ni à une pesée appropriée et suffisante de tous les intérêts pertinents en jeu, comme l’exige la Convention»).

[23] Semenya v. Switzerland ¶ 177 («La Cour estime que, si le contrôle très limité exercé par le Tribunal fédéral peut se justifier dans le domaine de l’arbitrage commercial, où des entreprises qui se trouvent généralement sur un pied d’égalité s’accordent sur une base volontaire pour régler leurs litiges de cette manière, il peut s’avérer plus problématique en matière d’arbitrage dans le sport, où les individus se voient confrontés à des organisations sportives souvent très puissantes.»).

[24] Semenya v. Switzerland ¶ 186.

[25] Semenya v. Switzerland ¶ 194.

[26] Semenya v. Switzerland, Joint Dissenting Opinion.

[27] Semenya v. Switzerland, Joint Dissenting Opinion.

[28] Semenya v. Switzerland, Joint Dissenting Opinion.

[29] Semenya v. Switzerland, Joint Dissenting Opinion.

[30] Semenya v. Switzerland, Joint Dissenting Opinion.