Who Is Responsible for Ensuring Human Rights in Global Sport?

In Semenya v. Switzerland, the European Court of Human Rights (ECtHR, the Court) has weighed in on the issue of sex testing in sport. The decision comes after a series of legal proceedings in Switzerland, initiated by athletes affected by global rules governing ‘female eligibility’ in the sex-segregated sport of track and field. While these athletes, along with various advocacy organizations, have consistently asserted that such rules violate international human rights norms, the ECtHR’s decision offers the first judicial assessment of the rules’ compliance with international human rights law, particularly as codified in the European Convention on Human Rights (ECHR, the Convention). The Court’s decision, finding violations of the Convention based on Switzerland’s failure to provide sufficient institutional and procedural safeguards to an athlete affected by female eligibility rules, offers some (partial) answers to the question of who is responsible for ensuring human rights in global sport. I discuss these implications, focusing on the role of the judicial authorities most likely to hear complaints of human rights abuses in international sport, as well as the role of other expert entities in connection with these judicial processes. In the transnational realm of sport, responsibility is shared in unique ways, brought to light in the ECtHR’s recent decision.

Background

In 2014, Indian athlete Dutee Chand refused to comply with regulations issued by World Athletics—the global governing body for track and field, headquartered in Monaco—which required her to lower the naturally-occurring level of testosterone in her body in order to compete. Chand successfully challenged the validity of the regulations before the Court of Arbitration for Sport (CAS)—an international arbitral tribunal located in Switzerland. With its regulations suspended, World Athletics proceeded to issue new regulations applicable only to athletes with certain innate ‘differences of sex development’ (DSD Regulations). This led to a second challenge before the CAS, brought in 2018 by South African athlete Caster Semenya. The CAS upheld the regulations, as did Switzerland’s highest court—the Swiss Federal Court (SFC)—on appeal. As I previously explained, neither the CAS nor the SFC evaluated the DSD Regulations against the requisites of human rights law. The ECtHR’s judgment in Semenya v. Switzerland confirms that this approach—sidestepping international human rights law in sport disputes—is no longer tenable.

Judicial Responsibility for Human Rights in International Sport

Since Switzerland played no part in the adoption of the DSD Regulations, the ECtHR focused its examination on whether the review of those Regulations carried out by the CAS and the SFC satisfy the requirements of the ECHR. In a 4-3 majority decision, the Court held that it did not: Semenya “was not afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively” (para. 201), resulting in a violation of the prohibition of discrimination (Article 14), taken together with the right to respect for private life (Article 8), as well as a violation of the right to an effective remedy (Article 13).

The Court—without conducting its own full assessment of whether the DSD Regulations violate the Convention, but suggesting they likely do—makes clear that certain judicial authorities must take greater responsibility for ensuring human rights in sport. In other words, the existing system of sport dispute settlement—forced arbitration before the CAS followed by an appeal to the SFC on very limited grounds—is inadequate; neither of these judicial bodies engaged in a sufficiently thorough examination of Semenya’s human rights claims.

The Court of Arbitration for Sport

The ECtHR notes that the CAS, in its initial consideration of Semenya’s complaint, did not refer to the Convention or the relevant case law of the Court, relying instead on the non-discrimination provisions contained in the World Athletics Constitution and the Olympic Charter. While noting that the CAS, as a ‘non-state’ entity, is not directly bound by human rights treaties (para. 173), the Court does find that this avoidance of human rights law contributed to the lack of institutional and procedural safeguards afforded in Switzerland. More specifically, the Court found that the CAS—in upholding the DSD Regulations despite its concerns about their scientific validity and harmful effects—had not thoroughly analysed, in light of the ECHR, whether the Regulations were justified (paras. 181-184). Some change in the CAS approach to human rights claims would therefore seem to be required.

Most obviously, perhaps, the CAS could consider international human rights norms incorporated into the relevant domestic law. For example, in Semenya v. World Athletics, the regulations at issue designated Monegasque law to apply subsidiarily in disputes before the CAS. The CAS therefore could have considered the guarantees of the ECHR as incorporated into Monegasque law. This approach raises a number of questions, though. For instance, if no domestic law is specified as applicable, the CAS may lack a clear basis for applying human rights law. Similarly, if the specified domestic law belongs to a state that is not party to the ECHR, the CAS could consider another incorporated human rights treaty, but perhaps not to the satisfaction of the ECtHR. Both these issues might be partially resolved if sport governing bodies incorporate into their rules, as FIFA has done, a commitment to respect all internationally recognized human rights, however, questions remain as to which treaty and case law should be followed. In any case, CAS arbitrators come from all the around the world and often do not have expertise in human rights law. And the CAS as a whole has no practice of considering the full expanse of human rights guarantees, case law, and soft law that has developed beyond the sport-specific context. The SFC will have to fill in the gaps.

The Swiss Federal Court

The ECtHR’s critique of the lack of institutional and procedural safeguards afforded to Semenya centres mainly on the SFC’s consideration of her appeal, which was limited to assessing whether the CAS decision was incompatible with Swiss ‘public policy’ (i.e., the most fundamental values that should form the basis of any legal order). The ECtHR found such a limited review problematic in the context of sport, where individual athletes often face very powerful sport governing bodies. It risked athletes being afforded lesser legal protection than people practising more conventional professions (paras. 177-178). Indeed, the SFC’s very narrow interpretation of public policy led it to affirm the CAS decision without engaging in its own examination of the issues in dispute (para. 185). A proper examination would require taking responsibility for protecting individuals from discrimination by private-law entities and then thoroughly examining the complaint and engaging in detailed weighing of the relevant interests at stake. None of this was done because such a review does not fall within the SFC’s narrow notion of public policy (paras. 186, 194).

The upshot of this finding by the Court, as Judge Pavli suggests in his concurring opinion (para. 13), is that the SFC must interpret the notion of public policy more broadly to include the human rights guarantees enshrined in the ECHR. The SFC insisted in its decision that the provisions of the ECHR and the Swiss Constitution could not be directly invoked to challenge the CAS decision, although the underlying principles of these instruments could be considered when defining public policy. Whether by considering such underlying principles or the provisions themselves, the SFC will have to reverse its restrictive precedent in the context of appeals of CAS decisions, to allow for the full consideration of human rights claims in accordance with the case law of the ECtHR.

Such consideration must involve an in-depth weighing of the interests at stake. The ECtHR emphasizes in particular that the SFC failed to take into account the serious concerns expressed by the CAS about the practical application and scientific validity of the DSD Regulations (para. 183) and proceeded from the flawed assumption that Semenya had a real choice, when, in fact, either choice—taking testosterone suppressants or renouncing her profession—would necessarily lead to the waiving of her rights. To meet the requirements of the ECHR, the SFC should have addressed this dilemma and engaged more deeply with the arguments about the significant side effects of oral contraceptives and the administration of medical treatment against one’s will, which constitutes a serious breach of personal liberty and dignity and is contrary to international medical ethical standards (paras. 187-190). In light of these high stakes for Semenya, a much more thorough institutional and procedural review was required (para. 201).

The European Court of Human Rights

The Court’s powerful, but somewhat restrained, conclusion—that the application of the DSD Regulations to Semenya cannot be considered an objective and proportionate measure due to a lack of effective domestic remedies—reflects the Court’s attempt to fulfill its supervisory jurisdiction while allowing states to enjoy an appropriate margin of appreciation in securing the rights and freedoms enshrined in the ECHR. The Court makes clear that this margin of appreciation is narrow in cases where a difference in treatment is based on a person’s sexual characteristics or where a particularly important facet of a person’s existence or identity is at stake (para. 169). The Court, therefore, plays an important role, not to resolve all the dilemmas related to ‘non-binarity’ in the sports context or to define a universally acceptable approach, as Judge Pavli explains in his concurring opinion, but rather to determine whether the ‘solutions’ implemented in this regard respect the fundamental rights and freedoms of athletes (para. 9).

Judge Pavli takes the explicit position that the DSD Regulations, as ‘the source’ of the discrimination experienced by Semenya, are incompatible with the ECHR (para. 24). Judge Serghides, in his partly concurring opinion, goes even further, finding violations of a ‘material nature’ of Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private life), arising from the DSD Regulations (paras. 2-4). The majority, however, does not find it necessary to decide these questions, opting instead for a more reserved position, focusing on procedural rather than substantive compliance with the ECHR. Still, as summarised above, the majority decision makes numerous statements about what was substantively required in the assessment of Semenya’s complaints, which will certainly be relevant to the CAS and the SFC’s assessment of human rights complaints by athletes going forward.

The Role of Human Rights Experts in Sport Dispute Resolution

One thing that is substantively required, following the decision of the ECtHR, is in-depth engagement with the views of relevant experts—in gender and sport, medical ethics, human rights, and the intersection of these topics. The Court cites a number of such experts in its judgment, relying particularly on reports by the Parliamentary Assembly of the Council of Europe (PACE) and the Office of UN High Commissioner for Human Rights (OHCHR), as well as the amicus brief submitted by the Global Health Justice Partnership (GHJP) and the World Medical Association (WMA). Thorough consideration of the concerns raised by such organizations should have formed part of the analysis of Semenya’s complaints in Switzerland (paras. 183, 189). The ECtHR also accepted third-party interventions from a wide range of other organizations—governmental and non-governmental, domestic and international, academic and advocational—that have repeatedly expressed human rights concerns about the DSD Regulations (e.g., here, here and here). Anything less than in-depth consideration of such expert views no longer seems to be an option for the CAS and the SFC.

The same goes for sport governing bodies. As I previously argued, World Athletics cannot credibly rely on the decision of the CAS as confirmation of its respect for human rights in enacting and enforcing the DSD Regulations. The ECtHR’s recent judgment affirms this view and extends it to the subsequent decision of the SFC. While not directly invalidating the DSD Regulations, the ECtHR’s decision indicates that such regulations must be subjected to much more rigorous legal scrutiny. Precisely how this will be achieved will depend not only on any further consideration of the case by the Grand Chamber but on how the key judicial bodies and other transnational actors discussed above (re)orient themselves in response.