Caster Semenya in Strasbourg: Applying the ECHR to the “entire sporting world”?

Semenya v Switzerland (App no. 10934/21)
European Court of Human Rights, Third Section, 11 July 2023

Summary

By a majority of four to three, a Chamber of the European Court of Human Rights has found that Switzerland violated the rights of the athlete Caster Semenya under the European Convention on Human Rights (the “Convention”). It found that the limited supervision exercised by the Swiss Federal Tribunal over the (non-state) Court of Arbitration for Sport (“CAS”) was inadequate to discharge Switzerland’s positive obligations under the Convention to protect individuals within its jurisdiction from discrimination.

The decision has important implications, not only for the position of athletes with differences of sex development (“DSD”), but more generally for the CAS system and the autonomy of international sport, and for the scope of applicability of the Convention and its relationship with international arbitration. World Athletics has said that it will be encouraging the Swiss Government to seek referral of the case to the Grand Chamber, and given the stakes, and the split in the Chamber, such a referral seems likely.

The full judgments are currently only available in French, here, but the Court has published a detailed summary in English here.

The facts

Caster Semenya is a South African double Olympic gold medallist and triple world champion in the women’s 800m. In 2018, she, and Athletics South Africa, brought proceedings before CAS to challenge the World Athletics “DSD Regulations”. These Regulations established new mandatory requirements governing the eligibility of women with certain DSD (including so-called “46 XY DSD”) and levels of endogenous testosterone above 5nmo/L (“Relevant Athletes”) to participate in the female classification in eight specified events (including 400m, 800m and 1500m) at international athletics competitions. Relevant Athletes were required to reduce and maintain the level of testosterone in their blood below 5nmol/L. CAS proceeded on the basis that this could be achieved by taking ordinary doses of oral contraceptives. Ms Semenya had previously undergone hormone treatment under a former set of regulations (which were later suspended by CAS) and was unwilling to do so again.

On 30 April 2019, following a 5-day hearing, including extensive expert evidence, a Panel of CAS (consisting of an Australian retired judge, a Canadian judge and a Swiss lawyer) issued a 632-paragraph Award. The Panel found that the Regulations were prima facie discriminatory, but – by majority – that “such discrimination is a necessary, reasonable and proportionate means of achieving the aim of what is described as the integrity of female athletics and the upholding of the ‘protected class’ of female athletes in certain events”. Celia Rooney of Blackstone Chambers wrote a blog on the CAS decision here.

CAS is based in Switzerland and, like other international arbitral bodies with a Swiss seat, falls under the supervisory jurisdiction of the Swiss Federal Tribunal, the highest court in Switzerland. Ms Semenya challenged the decision of CAS before the Federal Tribunal. Under Swiss law, the permissible grounds of challenge to the substance of an international arbitral award were limited to incompatibility with Swiss public policy (ordre public). In a judgment dated 25 August 2020, the Federal Tribunal rejected Ms Semenya’s challenge. It reviewed and upheld CAS’s assessment of proportionality, albeit without referring directly to the Convention. Ms Semenya then brought an application against Switzerland before the European Court of Human Rights (ECtHR).

The decision of the ECtHR

Jurisdiction

The first issue for consideration was whether the Convention applied at all. Article 1 of the Convention requires contracting states to “secure” the Convention rights “to everyone within their jurisdiction”. Ms Semenya was resident in South Africa. The Swiss government had had nothing to do with either making or implementing the DSD Regulations. Those regulations had been made by World Athletics (formerly IAAF), which was incorporated in Monaco, and would apply worldwide. The substantive law of the CAS arbitration was not Swiss law. The only connection with the Swiss state was that the Swiss Federal Tribunal had reviewed the CAS award. Of course foreign litigants in the courts of contracting states have fair trial rights under Article 6, but to what extent does challenging an arbitral award in the Swiss courts make the Swiss government responsible for securing other human rights that may be involved in the underlying arbitration?

The majority of the ECtHR held that the fact that Ms Semenya had brought proceedings in the Swiss Federal Tribunal did create a sufficient “jurisdictional link” with Switzerland. By complaining to the Swiss court that the CAS award had infringed her Convention rights she had brought herself within the “jurisdiction” of Switzerland for the purposes of Article 1 of the Convention. That was so even though the Swiss Federal Tribunal did not have the power under Swiss law to review the award against the Convention rights directly (but only insofar as the Convention rights reflected Swiss public policy) and had not referred to the Convention in its judgment. The majority held that the ECtHR was therefore entitled to examine whether the review of the Regulations by CAS and the Federal Tribunal complied with the requirements of the Convention.

One argument relied upon by the majority was that sporting arbitration was “forced” arbitration, in the sense that the rules of sports governing bodies preclude recourse to the ordinary courts, so participants in sport have no choice but to arbitrate. The majority was concerned that, if the Court was not willing to entertain cases such as this, it risked cutting off access to the Court for all those involved in professional sport, which it considered would be contrary to the object and purpose of the Convention.

The minority describes the jurisdiction point as probably the most important issue in the case, criticising the majority for expanding the scope of the Court’s jurisdiction “to cover the entire sporting world” and arguing that it was wrong to find that any review of a CAS award by the Federal Tribunal was obliged to apply the Convention in full. This, they argued, would give the Convention a global scope which it was never intended to have.

This is indeed an important issue. The Swiss Government argued explicitly that there was nothing more that it could do without giving its national courts the power to conduct a full merits review of CAS awards, which would be likely to cause CAS to relocate to a territory outside the Council of Europe. That argument did not sway the majority.

Discrimination

Having found that the Court had jurisdiction, the majority went on to consider the substance of Ms Semenya’s complaint of discrimination contrary to Article 14, together with Article 8, of the Convention. Unsurprisingly, the Court found that the DSD Regulations had an effect within the scope of Article 8 so as to bring Article 14 into operation. A person’s sexual characteristics relate to their “private life” and a requirement for Ms Semenya to undergo medical treatment to avoid exclusion from her preferred competition and the exercise of her profession also had a sufficient impact on her personal identity to come within the scope of Article 8.

Also unsurprisingly, the Court held that Ms Semenya had been treated less favourably than other female athletes on the ground of the elevated testosterone level caused by her DSD, and that this treatment was on the ground of her “sexual characteristics” (including her genetic sex characteristics). Less obviously, the majority found that she had also been less favourably treated on the ground of her “sex”. The reasoning for this latter conclusion is not entirely clear (and is criticised by the minority) but the majority appears to have been referring to the Regulation treating intersex women less favourably than those who are not intersex.

Having established these basic elements, the majority then stated that, since the Regulations had neither been made nor applied by the Swiss Government, all that was necessary was to examine whether Switzerland had complied with its positive obligations under Article 14: specifically, whether, and if so to what extent, Switzerland had a positive obligation to protect Ms Semenya from discriminatory treatment arising out of the application of the DSD Regulations.

There is a line of case law under Article 8 which holds that national courts making decisions that interfere with Article 8 rights (e.g. orders for deportation or for the return of abducted children) must give sufficient reasons for their decisions on proportionality to allow the ECtHR to exercise its own supervisory functions, and that a failure to give adequate reasons will in itself lead to the ECtHR finding the interference with Art.8 to be unjustified (e.g. IM v Switzerland (App no. 23887/16)). The majority held that these principles also applied to Article 14, and that the ECtHR therefore had to assess whether there had been sufficient “institutional and procedural guarantees” in the Swiss system for Ms Semenya to make her Article 14 arguments and receive a properly reasoned decision taking account of the ECtHR case law.

The Court disavowed any intention to perform a balancing of the relevant interests for itself. However, it held that a difference in treatment based on sex, sexual characteristics or being intersex required particularly strong justification and the state had a correspondingly narrow margin of appreciation. The majority identified five areas where it found the “institutional and procedural guarantees” to be inadequate.

First, it noted that Ms Semenya had had no choice but to bring proceedings before CAS since the rules of World Athletics precluded recourse to the ordinary courts. It noted that CAS was not obliged to apply the Convention, and that, although it had applied criteria which the Court accepted were “quite similar” to those which the Court would apply under Article 14, it did not expressly refer to that Article or to the Court’s case law. The review jurisdiction of the Federal Tribunal was very limited, and that even if such limited control could be justified in the field of commercial arbitration, it was more problematic in sporting disputes, where individuals can find themselves in dispute with powerful governing bodies. The court could not see why judicial protection should be less for sports professionals than for those in a more conventional line of work.

Second, it referred to “scientific doubts about the justification of the DSD Regulation”. Article 14 placed the burden of establishing justification of a difference in treatment onto the government, and the Court found that that burden had not been discharged. It noted that CAS had expressed serious concerns about aspects of the Regulations which the Federal Tribunal had not tried to dispel. It noted that the Parliamentary Assembly of the Council of Europe and the UN Human Rights Commission had raised concerns about the Regulations. The Court considered that neither CAS nor the Federal Tribunal had conducted an in-depth examination of the justification of the Regulation in the light of the Convention.

Third, the Court observed that hormone treatment had side effects. It found that the Federal Tribunal had not undertaken a sufficient examination of the discrimination arguments or a sufficient balancing exercise. The Tribunal, said the Court, did not properly appreciate the dilemma faced by Ms Semenya (to take hormone treatment or give up her preferred competitions) and it did not place sufficient weight on the significant side effects of hormone treatment and their effect on sporting performance. The court also noted that various interveners had suggested that imposing medical treatment for non-medical reasons was unethical. The Court held that the Federal Tribunal ought to have considered these issues in greater depth.

Fourth, the Court found that the standard of review applied by the Federal Tribunal was inadequate because the content of Swiss public policy (which did not generally preclude discrimination by private persons) did not correspond with the positive obligations imposed on contracting states by Article 14 to take positive measures to protect individuals from discrimination, and to guarantee a real and effective protection against discrimination committed by non-state actors.

Fifth, the Court held that the Federal Tribunal ought to have considered a Thlimmenos discrimination argument to the effect that the Regulations treated intersex athletes in effectively the same way as transgender athletes, when there were arguably good reasons for treating them differently.

In conclusion, the Court found that, in the context of a “forced arbitration” in which CAS, despite producing a very detailed award, did not apply the Convention and expressed considerable doubts about the Regulations, and the Federal Tribunal reviewed the award on only a very limited basis , Ms Semenya did not benefit from sufficient institutional and procedural guarantees to have her complaint of discrimination determined.

Having found a violation of Article 14 together with Article 8, the majority went on to find a violation of Article 13 (effective remedy) for essentially the same reasons, and that there was no need to decide whether there had been violations of Articles 6 or 8. By six votes to one, the complaint of a violation of Article 3 (torture and inhuman or degrading treatment) was found to be manifestly ill-founded.

Comment

One naturally sympathises with the position of Ms Semenya, who on any view has done nothing wrong and on whom the DSD Regulations had a devastating impact. The question whether the DSD Regulations were nevertheless an appropriate way of ensuring sporting fairness raises difficult scientific and philosophical issues going far beyond the scope of this article. But whatever one thinks of the merits of the DSD Regulations, the analytical approach of the majority of the Court appears problematic.

The Court claims to be scrutinising the adequacy of the Federal Tribunal’s assessment of justification, rather than undertaking its own assessment of necessity and proportionality. However, the majority’s assessment of the adequacy of “institutional and procedural guarantees” does appear to enter into the merits of parts of the balancing exercise. Furthermore, in a number of ways, the majority appears to set the Swiss government a virtually impossible task.

First, the majority insists on an assessment of justification expressly by reference to Article 14, with reference to ECtHR case law. It is not clear why the detailed assessment of justification undertaken by CAS (and reviewed by the Federal Tribunal) should be given less weight because it was not labelled as an Article 14 exercise. CAS does appear to have been applying (among other things) the ECHR as part of the law of Monaco, and in any event it is difficult to imagine that express reference to Article 14 would have made any difference to the outcome of its assessment of necessity and proportionality.

Second, the majority does not appear to treat this case as one involving the balancing of rights. CAS had described the case as involving “conflicting rights concerning the rights of female athletes who do, and do not, have DSD”, whereas the majority of the Chamber does not describe the case in this way. If there is going to be a protected “female” category in competitive sport, it is necessary to have rules defining the boundaries of that category, including whether, and on what conditions, it should include people with DSD. Such rules can have a profound impact on rights, and their justification should no doubt be scrutinised carefully. But the majority’s approach treats such rules as presumptively illegitimate, requiring exceptionally strict justification, and apparently with any deficiency in the reasoning or evidence in support of their justification leading by default to a finding of violation of Article 14. It is not obvious that, in determining the justifiable boundaries of the protected category, the Court should place a thumb on the scales in favour of the boundaries being more, rather than less, inclusive.

The effect of this is illustrated by the way the Court deals with the concerns raised by CAS. Having found that the Regulations were necessary and proportionate, CAS went on to express three concerns about their potential operation in practice. The majority of the ECtHR seizes on those concerns as indicating that CAS did not undertake a sufficient examination of justification, but that does not appear to follow (as the minority said, the fact that it expressed those concerns could be seen as demonstrating the care with which CAS had examined the competing arguments, rather than the opposite). One of the concerns (the limited evidence of 46 XY DSD conferring a competitive advantage in 1500m and 1 mile events) is of limited relevance to Ms Semenya’s exclusion from her preferred event of 800m; another (practical difficulties in maintaining testosterone at the prescribed level) was described by CAS as “hypothetical” and “not established on the evidence”, and the third (significant side effects of hormonal treatment) was taken seriously by CAS but found to be insufficient to outweigh the countervailing considerations.

Nor is it at all clear what the majority thought was usefully added to the analysis by the Thlimmenos point (that the Regulations treated athletes with DSD in the same way as transgender athletes, when their circumstances were different). The principle in Thlimmenos is that people in relevantly different circumstances should be treated differently unless there is an objective and reasonable justification for treating them in the same way. But there was never any serious dispute in this case that the Regulations required objective and reasonable justification, so it is something of a mystery why the majority regarded the Federal Tribunal’s failure to address the Thlimmenos point as a serious deficiency in its reasoning.

Wider implications

The present international system of sports dispute resolution is based on arbitration agreements contained in the rules of sports governing bodies, requiring participants to resolve their disputes in specialist sports arbitration rather than the ordinary state courts. CAS is ultimately under the supervision of the Swiss Federal Tribunal but with a very limited scope for review on the merits. Previous attempts to challenge this before the ECtHR have failed: for example, Bakker v Switzerland (App. 7198/07) in which the Court had found inadmissible a Dutch cyclist’s complaints about the Federal Tribunal’s limited power of review of CAS awards and the alleged inadequacy of its reasons. Further, in Platini v Switzerland (App. 526/18) the Court treated Michel Platini as a willing, rather than a forced, participant in the CAS arbitration by which he challenged his ban from football for financial misconduct.

The Court now indicates that this will not do. It appears to be saying that, when supervising the decisions of arbitral bodies which it regards as “forced” rather than genuinely consensual, the Convention requires state courts to be able to undertake their own assessment of the merits of any human rights arguments being advanced (at least where the arbitral body has not undertaken an explicit Convention analysis of its own). They must do so even where the substantive law of the underlying arbitration is not the same as the curial law, and presumably even where the substantive law of the arbitration is that of a country which (unlike Monaco) is not party to the Convention and whose laws may balance competing rights differently from the ECtHR .

This clearly poses a problem for Swiss law, but similar issues would appear to arise in English arbitration law, in the context of a sports arbitration with an English seat where the institutional rules do not provide for a right of appeal to CAS and exclude the right of appeal to the court on a point of law (e.g. an arbitration under Section X of the FA Premier League Handbook). Such decisions can be challenged in the Commercial Court only on the very limited grounds provided for in Arbitration Act 1996 s.67 (lack of substantive jurisdiction) or s.68 (serious irregularity causing substantial injustice, including where “the way in which [the award] was procured” is contrary to public policy (s.68(2)(g)). The 1996 Act does not give the Commercial Court the ability to undertake the kind of review on substantive human rights grounds which the ECtHR appears to require.

Given the extremely wide scope of the Convention (especially Articles 8, 14 and Article 1 of the First Protocol (right to property)) it will not be difficult for dissatisfied participants in sporting arbitrations to argue that their case raises human rights issues, and that they have been “forced” into arbitration against their will (like Ms Semenya, but apparently not like Mr Platini). Such parties might well seek to persuade the Commercial Court that the Human Rights Act 1998 both enables and requires it to exercise a broader power of review than that which appears on the face of the Arbitration Act. For the Court to accept this argument would involve a much bolder step than the Court of Appeal’s acceptance in North Range Shipping Ltd v Seatrans Shipping Corpn [2002] EWCA Civ 405; [2002] 1 W.L.R. 2397 and CGU International Insurance plc v AstraZeneca Insurance Co Ltd [2006] EWCA Civ 1340; [2007] Bus LR 162 that the Human Rights Act gave it a “residual jurisdiction” to interfere with the Commercial Court’s refusal of permission to appeal, despite s.69(8) of the Arbitration Act appearing to exclude any such jurisdiction.

There may also be scope for argument about whether the line which the ECtHR sought to draw between commercial arbitration and “forced” sporting arbitration is sustainable. There may be many contexts in which small players in a particular industry have no practical alternative to signing up to arbitration agreements if they wish to conduct business in a particular field. If reviewing courts are to be required to adopt a different approach in such cases, the implications for commercial arbitration could be extremely far-reaching.

As in most cases before the ECtHR, the Chamber did not hold an oral hearing in this case. The important issues raised by this case would certainly benefit from further argument before the Grand Chamber.