UK: Caster Semenya Ruling And The Pros And Cons Of The Court Of Arbitration For Sport

Last Updated: 10 September 2019
Article by James Carter and Alexander Chaize

Introduction

The Court of Arbitration of Sport has given its much anticipated ruling on the case of Caster Semenya, dismissing the challenges brought by her and Athletics South Africa (ASA) regarding the validity of the International Association of Athletics Federations' (IAAF) Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development) (the DSD Regulations).1 The DSD Regulations require Caster Semenya, and other athletes with differences of sex development, to artificially lower their testosterone levels in order to compete in eight events, including the 400 m, 800 m and 1,500 m, in which Caster Semenya has won numerous medals. Caster Semenya appealed the CAS's April 2019 decision to the Swiss Federal Tribunal, which has yet to make its final decision.

In this article, we provide a brief overview of CAS and its role within the framework of sports arbitration and we examine certain case studies which highlight some of the benefits and shortcomings of CAS as a leading institution in the world of sports disputes, including the case of Caster Semenya.

CAS: An overview

CAS is an arbitral institution which, like many others around the world, has benefitted from the rise of arbitration as an alternative method of dispute resolution. CAS also offers a mediation procedure and sometimes provides non–contentions advisory opinions. Unlike other institutions, however, CAS's own governing rules limit its jurisdiction to disputes within the sports sector.2 These generally fall into two categories:

  • Commercial disputes – those relating to sponsorship agreements, television rights, player transfers, agency agreements and disagreements between players and clubs. In each case there must be an arbitration agreement between the parties (usually within a contract).
  • Disciplinary matters – doping cases, violence, referee abuse. Such cases are usually dealt with in the first instance by the relevant sport's governing body or authority, but are often appealed to CAS. In these cases sports governing rules often provide for appeals to be dealt with by CAS. 

In both categories of cases, CAS decisions are final and binding on the parties and are enforceable in over 125 jurisdictions in accordance with the New York Convention. Since CAS is based in Lausanne, Switzerland, disputes are subject to Swiss law unless the parties choose otherwise, and CAS decisions are subject to appeal only to the Swiss Federal Tribunal (SFT), on a limited number of grounds (e.g. lack of jurisdiction or breach of the right to a fair hearing).

Original structure

Established in 1984 by the International Olympic Committee (IOC), CAS was initially very much centered around the IOC. For example:

  • CAS was composed of 60 members appointed by: the IOC itself (15 members), the IOC president (15 members), the international federations of the various Olympic sports (15 members) and the National Olympic Committees (15 members);
  • CAS was funded almost exclusively by the IOC; and
  • CAS's governing statute was only capable of being modified if the IOC Executive Board proposed a change.3

Reformed structure

Following several challenges of CAS awards to the SFT by athletes, such as the case of Gundel v Fei,4 the structure of CAS has been analyzed and reformed in an attempt to answer accusations of financial and organizational partiality. The reforms have included the creation of a new governing body – the International Council of Arbitration for Sport (ICAS) – and the coming into force of the Code of Sports–related Arbitration (the Code), which sets out the functions, rules and procedures of CAS and CAS arbitrations.5

In its current form, CAS consists of two bodies:

ICAS

  • The governing body of CAS, whose responsibilities include:
    • amending the Code;
    • electing the CAS President, Secretary General and other roles;
    • appointing and removing CAS arbitrators and mediators; and
    • managing and allocating the financing of CAS.6
  • Composed of 20 members, who must all be "experienced jurists" who agree to act with "total objectivity and independence" and are appointed for one or more four-year terms as follows:
    • the international federations of the various Olympic sports appoints four members;
    • the Association of the National Olympic Committees appoints four members;
    • the IOC appoints four members;
    • the 12 members listed above then select a further four "with a view to safeguarding the interests of athletes"; and
    • finally, the 16 members listed above then select the final four, who must be "independent of the bodies designating the other members."
    •   Any modification of the Code requires a two-thirds majority of ICAS members.8

CAS

  • Made up of at least 150 arbitrators (currently around 300) and 50 mediators at any one time, appointed by ICAS for one or more four-year terms.
  • Arbitrators must have "appropriate legal training, recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language."9
  • Before they are appointed, arbitrators are first nominated for appointment, including by the IOC and the athletes commissions.10
  • Parties may agree their own method of appointment for the arbitrator(s) to decide their case, but must select from within the body appointed by ICAS.

CAS: The pros and cons

Despite the reforms and restructurings described above, questions remain over certain aspects of the current framework of international sports arbitration (including CAS). We set out below some of the pros and cons of CAS, illustrated by a number of recent case studies.

Pros

Those who support CAS stress the importance of having a universal arbiter of disputes in the sports industry, in order to avoid the inevitable issues that would arise if sanctions for rule breaches within one sport differed between various jurisdictions. Other perceived benefits include:

  • The speed with which judgments can be obtained – R44.4 and R52 of the Code provide for cases to be considered on an expedited basis in certain circumstances.11
  • The low cost of obtaining judgments – although each party must bear its own legal fees, CAS fees are minimal compared to court fees and, for appeals on disciplinary matters, CAS proceedings are free, save for a filing fee of CHF1,000.12
  • Flexibility – including CAS's ability to reform itself, as illustrated by the reforms following the Gundel case described above.
  • Public nature of decisions – subject to the rights of individuals to privacy and confidentiality, the vast majority of CAS judgments are freely available in at least two languages, which enables parties to refer to a body of case law when making submissions and provides certainty.

Case study 1: Russian Federation doping bans

On November 13, 2015, following an investigation by the World Anti–Doping Agency (WADA), the IAAF suspended the All Russia Athletics Federation (ARAF) from IAAF membership and banned it from world track and field events. Over the next six months further bans were given and further investigations commissioned as the scale of the ARAF's breaches became clear. On June 17, 2016, the IAAF voted unanimously to uphold its ban.

With the deadline for athletes to register for the 2016 Rio Summer Olympics (due to commence on August 5, 2016) fast approaching, the Russian Olympic Committee and 68 Russian athletes quickly sought to challenge the decision and filed a request for arbitration at the CAS on July 3, 2016. By July 21, 2016, within three weeks of the filing, a CAS panel of arbitrators had been appointed, a full hearing held, and a decision issued confirming the validity of the IAAF's decision.

Case study 2: Caster Semenya ruling

On April 30, 2019, following a hearing in February 2019, CAS delivered its award dismissing the challenges of Caster Semenya and the ASA. Caster Semenya has since appealed CAS's decision to the SFT, which has yet to make its final decision. However, after initially ordering the IAAF to await the SFT's decision before enforcing the DSD Regulations against her, on 30 July 2019 the SFT revoked that super–provisional suspension, finding that Caster Semenya's appeal "does not appear with high probability to be well founded".13

The history of this case dates back at least as far Caster Semenya's initial suspension and sex verification testing by the IAAF in 2009 after her dramatic rise to success in the 800 m. In April 2011 the IAAF published its Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition, (the Hyperandrogenism Regulations 2011), designed to be a fairer way of splitting athletes into male and female competition than its sex verification testing.

However, following a challenge to the Hyperandrogenism Regulations 2011 by Indian sprinter Dutee Chand, a CAS award in July 2015 concluded that the IAAF did not have sufficient evidence that hyperandrogenic female athletes benefit from such a significant performance advantage that it is necessary to exclude them from female competitions.14 In its award in Chand, CAS asked the IAAF to conduct further research and collate additional expert evidence before any further attempt to regulate on the issue. Eventually, in April 2018, the IAAF succeeded in enacting its new DSD Regulations to replace the Hyperandrogenism Regulations 2011. CAS's recent ruling in the Caster Semenya case confirms that the DSD Regulations are seemingly reasonable and proportionate, though the panel noted that there remain some potential issues with implementation to be ironed out.

Scrutiny of the decision must await the verdict of Caster Semenya's appeal to the SFT, but the case provides a good example of CAS's ability – as effectively the universal arbiter of disputes in the sports industry – to rule on crucial issues in a way that is, at the least, consistent across that industry.

Cons

Critics of CAS have a traditionally seen a number of its features as significant shortcomings, including:

  • Structure and composition – despite the reforms referred to above, some have still sought to question the independence of CAS, in terms of both the membership of ICAS (which it is argued is dominated by representatives of national sports bodies rather than individual athletes) and the appointment of arbitrators to the CAS list (who are chosen by ICAS).
  • Financing – similarly, critics continue to point out that a portion of CAS's funding comes from institutions like the IOC and FIFA, which frequently appear as parties to CAS disputes.
  • Choice of dispute resolution method – many athletes and clubs have little or no say in the choice of CAS as the arbiter of their disputes since they are required to enter into a CAS arbitration agreement as a condition of competing in their chosen sport.
  • Choice of arbitrators – although parties may agree their own method of appointment for the individual arbitrator(s) to decide their case, they must select those individuals from within the body appointed by ICAS.
  • Appeal process – like many other arbitral institutions, CAS decisions are not subject to appeal on the merits, and may only be appealed to the SFT in limited circumstances. Parties may even opt out of their right to appeal to the SFT, and many athletes and players are required to do just that when signing up to the governing rules of their respective sports.

Case study 3: RFC Seraing v FIFA

This case concerned a dispute between, on one side, Belgian football club RFC Seraing and the investment fund Doyen Sports Investment Limited, and, on the other side, FIFA, UEFA and URBSFA (the Belgian football association). RFC Seraing and Doyen Sports contested the validity of sanctions imposed against them by the football associations for violations of FIFA and UEFA rules prohibiting third-party ownership, but CAS upheld them.15

RFC Seraing then challenged the sanctions in the Belgian national courts on a number of grounds, including on the basis that FIFA, as one of the most frequent parties to CAS disputes (around 32%) and simultaneously one of CAS's most significant funders (around CHF1.5 million of its CHF16 million budget) was capable of influencing CAS's decisions. Although that argument was rejected by the Belgian Court of Appeal on August 29, 2018, the Court of Appeal did accept an alternative argument that the arbitration clause selecting CAS as the parties' choice of dispute resolution was invalid under Belgian law because it was simply a generic clause and lacked sufficient certainty.16

FIFA's appeal is currently pending, and the Court of Appeal did agree that the facts are likely too specific to have much impact on CAS's future in any event. However, it is clear that the general nature of some CAS arbitration clauses may lead to serious issues.

Case study 4: Pechstein v Switzerland

This case concerns an athlete who sought to challenge sanctions imposed by CAS for doping violations, on the basis that CAS lacks sufficient independence and/or impartiality. Claudia Pechstein was an Olympic skater suspended by the International Skating Union after failing anti-doping tests in 2009. She appealed CAS's decision to the SFT and, when those arguments were rejected by the SFT, she appealed to the European Court of Human Rights (ECHR).17

Pechstein's arguments included: allegations about the way CAS is funded; the lack of CAS arbitrators appointed by athletes rather than sports federations; and the absence of any public hearing during the process which she argued breached Article 6 of the European Convention on Human Rights. Although the arguments on funding and appointment of arbitrators were ultimately rejected by the ECHR, they did accept that a public hearing ought to have been held, which could have implications for both CAS and other sports tribunals in future.18

Furthermore, Pechstein had previously had some success with the arguments on funding and appointment of arbitrators in a parallel attempt to overturn her sanctions in the German national courts. Although the German Bundesgerichtshof did not see sufficient evidence to overturn the sanctions, it pointed out that issues with the structure and membership of CAS/ICAS led to "deficiencies" in terms of independence.19

Conclusion

It is true that some aspects of CAS would certainly not be accepted in commercial dispute resolution where, for example, any suggestion that one party had contributed to the funding of the arbitral institution would be immediate cause for challenging the jurisdiction of the tribunal to hear that dispute. However, commercial arbitral institutions like the London Court of International Arbitration (LCIA) are funded primarily by the high administration fees parties must pay to use them. Were CAS to charge similar fees, its doors would effectively be closed to many athletes.

Sport, by its very nature, is meant to be a meritocracy; a level playing field on which athletes and teams can compete in isolation and a victor can be fairly determined. A cheap, accessible and universally applicable method of resolving sports-related disputes is a crucial element of maintaining that level playing field, and that is ultimately what CAS seeks to achieve. In the words of the SFT in the Gundel case: "[t]here appears to be no viable alternative to this institution, which can resolve international sports-related disputes quickly and inexpensively."20

Footnotes

1.The full 163-page award was published, in redacted form for confidentiality reasons, on 18 June 2019.

CAS also produced an Executive Summary of the award on 1 May 2019.

2.See Article R27 of the Code (as defined below).

3.For more detail on its history see the CAS website

4.CAS 92/A/63 Gundel v Fei, a CAS decision concerning horse-doping in which a jockey named Elmar Gundel was disqualified, and the SFT's Judgment in Gundel (ATF 119 II 271). See also CAS 2002/A/370 Lazutina v IOC and CAS 2002/A/371 Danilova v IOC, two CAS decisions disqualifying Russian cross-country skiers Larissa Lazutina and Olga Danilova from the Winter Olympics, and the SFT's Judgment in Lazutina (ATF 129 III 445).

5.The latest version of which came into force on January 1, 2019.

6.See S6 of the Code.

7.See SS4 and 5 of the Code.

8.See S8(2) of the Code.

9.See S14 of the Code.

10.Ibid.

11.Similar procedures have become common place amongst arbitral institutions worldwide in recent years. See, e.g., LCIA Arbitration Rules 2014, Article 9; ICC Arbitration Rules 2017, Articles 28-30; HKIAC International Arbitration Rules 2018 Articles 23, 42 and Schedule 4.

12.See R65 of the Code

13.See press release of the SFT dated 30 July 2019.

14.Ms Dutee Chand v Athletics Federation of India and The International Association of Athletics Federations, CAS 2014/A/3759, para. 547.

15.RFC Seraing v Fédération Internationale de Football Association (FIFA), CAS 2016/A/4490 (available in French). See also the decision of the SFT which rejected an appeal by RFC Seraing and Doyen Sports (available in French).

16.See 18th Chamber of the Brussels Court of Appeal of August 29, 2018 (2018/6348) (available in French).

17.The appeal was brought jointly with Adrian Mutu, a professional football player who had his contract with Chelsea Football Club terminated in 2004 when traces of cocaine were found in a blood sample and also sought to appeal the resulting CAS decision on similar grounds.

18.Pechstein / Mutu v. Switzerland, October 2, 2018 (40575/10 et 67474/10) (available in French).

19.The Bundesgerichtshof 's decision was later upheld by the German Federal Tribunal in 2016, and the sanctions against Pechstein confirmed.

20.SFT's Judgment in Gundel (ATF 119 II 271) (English translation from CAS's website).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions