The SFT judgment in the case of Caster Semenya against World Athletics
4A_248/2019, Caster Semenya v. World Athletics & Athletics South Africa (ASA), 4A_398/2019, ASA v World Athletics, judgment of 20 August 2020
The highly publicized Caster Semenya judgment issued by the SFT on 25 August 2020 is important because it raises several issues of principle in international arbitration.
In a nutshell, the case related to the adoption by World Athletics, the world-governing body of Athletics based in Monaco, of a set of regulations (the DSD Regulations) that set out the specific conditions regarding eligibility for a specific category of female athletes, namely athletes with “Differences in Sex Development” (DSD), which must be met in order to compete in specific events in the womens’ category of an international competition, or to set a world record in a non-international competition. The conditions involve lowering the blood testosterone level to below 5 nmol/L for an uninterrupted period of at least six months and maintaining such levels low at all times.
Caster Semenya, a South African gold medalist and Olympic Athlete and specialist in middle-distance races (800 to 3’000 meters), fell within the DSD Athlete category and was directly impacted by these regulations. She unsuccessfully challenged the adoption and validity of the DSD Regulations before the CAS. The hearing lasted five days and the panel accepted a very large number of experts, subsequently rendering a 165-page award. In the following motion to set aside the CAS award before the SFT.
In her subsequent motion to set aside the CAS award, the SFT initially granted her request for interim measures, but eventually withdrew such suspensive effect holding that the likelihood of success condition for granting interim measures was not met in the present case.
As a side issue, and since the Athlete’s national federation (ASA) also filed a motion to set aside the CAS award, the SFT discussed the standing of a third party in federal proceedings (interest worthy of protection distinct from the one of the Athlete) and highlighted the difference between this case and the Guerrero motion filed by FIFA in support of the decision rendered by one of its bodies (FIFA Disciplinary Committee). Accordingly, in this case the national federation not only had a direct interest at stake since it would be called to enact the disputed regulations, but had also filed a claim before the CAS (at 4.1.3 f.)
Another interesting issue discussed was the validity of the waiver of the appeal to the SFT enshrined in the DSD Regulations. The SFT swiftly confirmed its Cañas jurisprudence (BGE 133 Ill 235, para. 4) and held that such a waiver is not enforceable against an athlete since it was not the result of a freely expressed consent by the Appellant association and that it is therefore inoperative (at 4.2.3 f.).
At the outset of its analysis, the SFT reiterated its scope of review, which is limited to the legality of the challenged award with respect to the regulations adopted by an international federation with its seat in Monaco (at 5.1.1 f.). The SFT then stressed the finality of the decisions rendered by the CAS and the structural independence of said arbitral institution as confirmed by several landmark judgments, by reiterating the Lazutina judgment and the Pechstein jurisprudence of the European Court of Human Rights (ECHR) (at 5.1.2).
Notwithstanding the highly hierarchical structure of sports federations, the SFT left the question whether the DSD Regulations (as regulations of a private actor) could fall within the scope of the discrimination prohibition open.
Overall, the Athlete unsuccessfully pleaded an undue restriction of the Panel’s power of review under Art. 190 (2) (a) and (d) LDIP and divided her plea of violation of public policy into several parts (at 9). Among other issues, the Athlete submitted that the contested Award was contrary to the principle of prohibition of discrimination and that her fundamental rights had been violated. The SFT reiterated that a party cannot directly invoke the violation of provisions of the ECHR, as it has to show how these violations fall within the scope of public policy under Art. 190 para. 2 (e) LDIP.
Another interesting issue that the SFT touched upon – but eventually left undecided – was the scope of the prohibition of discrimination, traditionally addressed to the State under the Swiss Constitution.
The SFT further confirmed that the CAS Panel had carefully carried out its examination from the point of view of the principle of proportionality (at 22.214.171.124) and concluded that the contested award had not violated the principle of public policy, since it held that the DSD Regulations aimed at ensuring fair sport and this constituted a “perfectly legitimate interest” (at 126.96.36.199). Overall, the SFT examined the various pleas raised, including violation of the Athlete’s personality rights, protection of privacy, and economic freedom, and differentiated from other cases such as the Matuzalem judgment, concluding that the DSD regulations were an appropriate, necessary and proportionate measure to the legitimate aims of sporting fairness.
Caster Semenya’s case is now pending before the ECtHR.
Note: the full Judgment is available in French at the website of the Swiss Federal Tribunal www.bger.ch. The English translations of important international arbitration decisions rendered by the Swiss Federal Tribunal (from French, German and Italian) are available on the website www.swissarbitrationdecisions.com , operated jointly by Dr. Despina Mavromati and Dr. Charles Poncet as a service to the international arbitration community.