Media reports and interested stakeholders often suggest that certain types of sports bets would significantly increase the risks of match fixing occurring. These concerns also surface in policy discussions at both the national and European level. Frequently calls are made to prohibit the supply of “risky” sports bets as a means to preserve the integrity of sports competitions.

Questions about the appropriateness of imposing such limitations on the regulated sports betting, however, still linger. The lack of access to systematic empirical evidence on betting-related match fixing has so far limited the capacity of academic research to make a proper risk assessment of certain types of sports bets. 

The ASSER International Sports Law Centre has conducted the first-ever study that assesses the integrity risks of certain sports bets on the basis of quantitative empirical evidence. 

We uniquely obtained access to key statistics from Sportradar’s Fraud Detection System (FDS). A five-year dataset of football matches worldwide, which the FDS identified as likely to have been targeted by match fixers, enabled us to observe patterns and correlations with certain types of sports bets. In addition, representative samples of football bets placed with sports betting operator Betfair were collected and analysed. 

The results presented in this report, which challenge several claims about the alleged risks generated by certain types of sports bets, hope to inform policy makers about the cost-effectiveness of imposing limits on the regulated sports betting offer.

Feel free to download the report here: The-Odds-of-Matchfixing-Report2015.pdf (773KB)

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

Sports Law Related Decisions

•  Employment Tribunal – Reserved judgment in the case involving Jess Varnish

Official Documents and Press Releases

• CAS – Bulletin 2018/02
• CAS – Code of sports-related arbitration (effective from 1 January 2019)
• FIFA – Statement on Hakeem al-Araibi
• FIFA – Letter to the Thai authorities concerning Hakeem al-Araibi
• FIFA – FIFA Appeal Committee partially upholds appeal lodged by Kalusha Bwalya
• FIFA – FIFA, UNESCO and the World Food Programme agree innovative partnership
• FIFA – Global Transfer Market Report 2018 - women
• FIFA – Global Transfer Market Report 2018 - men
• FIFA – Intermediaries in International Transfers 2018
• FIFA – Joint public statement on behalf of FIFA, UEFA, AFC, the Premier League, LaLiga and Bundesliga on beoutQ
• FIFA – Normalisation committee appointed for Namibian FA
• Human Rights Watch – Qatar: Partial reforms risk undermining progress
• IBSF – IBSF sanctions Russian bobsleigh athletes and official for anti-doping rule violation with a period of ineligibility of two years
• IOC – New year’s message 2019
• IOC – IOC disappointed at decision of Swiss Federal Tribunal
• IOC – IOC sanctions one athlete for failing anti-doping tests at London 2012
• IOC – Stockholm-Are and Milan-Cortina submit innovative Games plans for the Olympic Winter Games 2026
• Tennis Integrity Unit – Annual Review 2018
• Tennis Integrity Unit – Cristobal Saavedra-Corvalan suspended and fined for failing to cooperate with TIU corruption investigation
• UEFA – Club Licensing Benchmarking Report Financial Year 2017
• UEFA – UEFA report details European football’s journey to profitability
• WADA – New Year message to stakeholders from WADA President and Director General
• WADA – Reminder: WADA is soliciting feedback on the Anti-Doping Charter of Athlete Rights
• WADA – Update on extraction of Moscow Laboratory data and RUSADA compliance status
• WADA – Statement from the WADA Athlete Committee on Russian compliance situation
• WADA – WADA expert team to return to Moscow
• WADA – WADA successfully retrieves data from Moscow Laboratory
• WADA – WADA Executive Committee endorses CRC recommendation to continue applying conditions of RUSADA compliance
• WADA – WADA Compliance Review Committee update

In the news

Doping

• Associated Press Russian court says bobsledder can keep Olympic titles
• BBC Sport Alexandr Zubkov to keep Olympic titles in Russia despite IOC ruling
• Andy Brown WADA’s Intelligence & Investigations department covering 20% of cases
• Sean Ingle Marathon champion Jemima Sumgong has doping ban doubled to eight years
• Sean Ingle Tribunal to hear claims ex-Team Sky doctor Freeman ordered testosterone
• Sean Ingle WADA accussed of being ‘played’ after Russians miss doping data deadline
• Sean Ingle WADA athletes body adds to pressure for new ban on Russia
• Sean Ingle WADA experts set to return to Russia to investigate doping data after IT row
• Sean Ingle WADA retrieves doping data from Moscow but doubts linger over veracity
• Sean Ingle Russia avoids further WADA sanctions despite missing data deadline

Football

• David Conn Europe’s top-tier football clubs reap benefit of FFP with first overall profit
• David Conn Manchester City refuse to give UEFA any comment on FFP allegations
• David Conn Revealed: The ‘dire consequences’ of football’s relationship with gambling
• Helen Davidson Hakeem al-Araibi: Bahrain says refugee footballer’s life is not in danger
• Helen Davidson Call for FIFA’s Salman al-Khalifa to step down if Hakeem al-Araibi is not freed
• Sean Ingle FIFA urges Thailand to release Bahraini footballer Hakeem al-Araibi
• Sean Ingle Real Madrid and Barcelona overtake Manchester United as top earning clubs
• Sean Ingle and Helen Davidson Campaigners say case of Bahraini footballer Hakeem al-Araibi now an ‘emergency’
• Tariq Panja FIFA’s boss wants to remake the game. Europe wants no part of it.
• Tariq Panja Politics looms over empty seats as Saudi Arabia faces Qatar in Asian Cup
• Tariq Panja U.A.E. accuses Qatar of fielding ineligible players at Asian Cup
• Tariq Panja When is a hacker whistle-blower? In Football Leaks case, a Hungarian judge will decide
• Tariq Panja and Kevin Draper Cristiano Ronaldo’s DNA sought by Las Vegas police in rape investigation
• Tariq Panja and Hiroko Tabuchi Japan’s Olympic chief faces corruption charges in France

Other

• Stine Alvad FIFA fails to live up to own human rights standards in #SaveHakeen case, critics say
• Philip Blenkinsop Nike’s Dutch tax status investigated by EU regulators
• Sean Ingle Jess Varnish loses employment tribunal case against British Cycling and UK Sport
• Sean Ingle Jess Varnish: I lost, but my stance has exposed a culture of fear
• Sean Ingle ‘Lives have been transformed’ – the entrepreneur who put £10m into grassroots sport
• Sam Jones Police in Spain break up tennis match-fixing ring involving 28 pros
• Braden Keith FINA relaxes rules, won’t ban athletes for competing in non-FINA events
• Malay Mail CAS dismisses Karim’s appeal against IAAF
• Liam Morgan Japanese Olympic Committee President indicted on corruption charges in France
• Jonathan Taylor Response to open letter from Sebastian Samuelsson

Academic Materials

International Sports Law Journal

• Cem Abanazir E-sport and the EU: The View from the English Bridge Union
• Alexander Brown and Roger Baines The Potential Exploitation of Non-English Speaking Players in UK Professional Football Contracts
• James Brown Genetic Doping: WADA We Do About the Future of ‘Cheating’ in Sport?
• John Didulica Changing the Game: The Legal Framework for the Laws of the Game, Management of Human Performance Data and Related Safety Considerations in Women's Professional Sport
• Matteo Maciel and Adam Walton Can Player Economic Value Rights Be Used as Collateral?

Other

• Jan Exner Sporting Nationality in the Context of European Union

Blog

Law in Sport

• Katherine Apps Can you ‘temporarily step down’ from an employment role? A view on Craig Bellamy’s position
• Kevin Carpenter Podcast on career in sports law and sports integrity
• Angela Collins Gender equality in football – how much does FIFA ‘value’ the women’s game?
• Zoe Dudgeon and Elinor Boote A comprehensive guide for sports bodies on tackling discrimination
• Nick Hawkins and Naomi Latham Top tips for football clubs on navigating complex employment negotiations
• Marc Peltier French law brought into line with the World Anti-Doping Code
• Angelo Rigopoulos A guide to UEFA’s good governance reform
• Toni Roca FIFA’s proposed solidarity mechanism reforms – an effective solution or a lost opportunity?
• Brendan Schwab Podcast on the Hakeem al-Araibi case 

Other

• Jack Anderson Sport scandals of 2018
• Nikki Dryden Why Hakeem al-Araibi’s plight is a test of the Olympic movement itself
• Marina Hyde Inconceivable! Russia yet again leaves Sir Craig Reedie looking the fool
• Marina Hyde Saudi Arabia, sportwashing and golf’s daring sortie into enemy coffers
• Marina Hyde The anti-WADA ‘lynch mob’ is not one Vernon Kay and co would recognise
• Sean Ingle Football must go in hard on Bahrain over the Hakeem al-Araibi affair
• Doug MacQuarrie Another point of view from Doug MacQuarrie, Chair of iNADO
• Sportschau The duped cheat
• Minky Worden Hakeem al-Araibi’s case is a true test of FIFA’s new human rights policy

Upcoming Events

• 8 May – FIFA and Human Rights: Impacts, Policies and Responsibilities, T.M.C. Asser Institute, The Hague, Netherlands
• 22-23 May – Football Law 2019: Player Transfers, Agents, Politics and the Business of Football, London, UK
• 27-28 June – 14^th Sport&EU Annual Conference, Valleta, Malta
• 12-13 September – Understand the Rules of the Game 2019: LawInSport Annual Conference, London, UK
• 24-25 October – Third Annual International Sports Law Conference of the International Sports Law Journal, T.M.C. Asser Institute, The Hague, Netherlands

The Headlines

Human rights and sport  

Caster Semenya

Human rights issues are taking the headlines in the sporting world at present. A short time ago, Caster Semenya’s appeal at the Swiss Federal Tribunal against the CAS decision was dismissed, perhaps raising more questions than answering them. Within the last few days however, the message from the Semenya camp has been that this is not over (see here).  See the contributions from a range of authors at Asser International Sports Law Blog for a comprehensive analysis of the Semenya case(s) to date.

Navid Afkari

As the sporting world heard of the execution of Iranian Wrestler Navid Afkari, a multitude of legal and ethical questions bubbled to the surface. Not least of all and not a new question: what is the responsibility of sport and the governing bodies therein, in the space of human rights?  And, if an athlete is to acquire a high profile through sporting excellence, does that render athletes vulnerable to be made an example of and therefore in need of greater protection than is currently afforded to them? There are differing views on how to proceed. Consider the following from the World Players Association (Navid Afkari: How sport must respond) and that from the IOC (IOC Statement on the execution of wrestler Navid Afkari) which shows no indication through this press releases and other commentary, of undertaking the measures demanded by World Players Association and other socially active organisations. (See also, Benjamin Weinthal - Olympics refuses to discuss Iranian regime’s murder of wrestler).

Yelena Leuchanka

As this is written and relevant to the above, Yelena Leuchanka is behind bars for her participation in protests, resulting in several sporting bodies calling for her immediate release and for reform in the sporting world around how it ought to deal with these issues. As a member of the “Belarus women's national basketball team, a former player at several WNBA clubs in the United States and a two-time Olympian”, Leuchanka has quite the profile and it is alleged that she is being made an example of. (see here)

Uighur Muslims and Beijing Winter Olympics

British Foreign Secretary, Dominic Raab does not rule out Winter Olympics boycott over Uighur Muslims. ‘The foreign secretary said it was his "instinct to separate sport from diplomacy and politics" but that there "comes a point where that might not be possible".’ Though Raab’s comments are fresh, this issue is shaping as a “watch this space” scenario, as other governments might echo a similar sentiment as a result of mounting pressure from human rights activist groups and similar, in lead up to the Winter Games.

Major International Sports Law Decisions

CAS Decisions (September)

• CAS 2017/A/5444 Olga Zaytseva v. International Olympic Committee (IOC)
• CAS 2017/A/5435 Yana Romanova v. International Olympic Committee (IOC)
• CAS 2017/A/5434 Olga Vilukhina v. International Olympic Committee (IOC)
• CAS 2019/A/6483 Wydad Athletic Club v. Confédération Africaine de Football (CAF) & Espérance Sportive de Tunis

Official Documents and Press Releases

CAS

• Decisions rendered by the CAS in the appeal arbitrations between Russian athletes Olga Vilukhina, Yana Romanova and Olga Zaytseva, and the IOC
•  CAS dismisses the appeal of Wydad Athletic Club
• CAS decides that the International Surfing Association shall be the International Federation governing and administrating the sport of Stand-Up Paddleboard at Olympic level
•  CAS finds Ibai Salas Zorrozua guilty of an anti-doping rule violation; imposes four-year period of ineligibility
•  CAS dismisses the appeal filed by the UAE Football Association

FIFA

•  FIFA publishes first-ever manual on third-party influence and ownership
•  Manual on “TPI” and “TPO” in football agreements
• FIFA publishes first reports for Disciplinary & Ethics Committees and on anti-doping activities
• DISCIPLINARY & ETHICS REPORT 2019/20
• ANTI–DOPING REPORT 2019/20
• FIFA publishes its Guide to Submitting a Minor Application
•  PROTECTION OF MINORS Guide to submitting a Minor Application SEPTEMBER 2020 EDITION
• Regulations on the Status and Transfer of Players October 2020 Edition (including COVID-19 temporary amendments)
• Post FIFA Congress press conference
• FIFA President meets US President and US Attorney General
• FIFA COVID-19 Relief Plan helps restart Thai league
• UNODC, FIFA partner to kick out corruption and foster youth development through football
• Normalisation committee appointed for Venezuelan Football Association
• FIFA suspends the Trinidad and Tobago Football Association

FIFPro

• Fake contracts with Turkish clubs

IOC

• IOC Executive Board meeting – Information for the media
• IOC and Tokyo 2020 agree on measures to deliver Games fit for a post-corona world

UEFA

• UEFA allows return of fans at maximum 30% of capacity pending approval of local authorities
• The Executive Committee approved special rules for the group stage of the UEFA Champions League and UEFA Europa League with regard to the organisation of matches in the light of Covid-19.
• 2020/21 UEFA Women’s Champions League, competition regulations revised accordingly and special rules have been introduced, in case of both travel restrictions and positive Covid-19 tests.

WADA

• WADA publishes new Guidelines for Education
• WADA welcomes decision of French court in Diack case
• WADA to boost investigations capabilities with new compliance team
• WADA publishes revised Technical Letter TL22: Ethylmorphine
• WADA issues revised 2021 International Standard for the Protection of Privacy and Personal Information
• WADA publishes redesigned, more athlete-friendly, 2021 Prohibited List
• WADA issues 2021 International Standard for Laboratories
• WADA launches stakeholder consultation regarding 2021 Technical Documents

ITF

• TENNIS GOVERNING BODIES STATEMENT: PLAYER REPRESENTATION

World Athletics

• World Athletics Council extends deadline for RusAF’s reinstatement plan
• World Athletics statement on today's Paris Criminal Court ruling
• World Athletics welcomes Swiss Federal Tribunal decision on its Eligibility Rules for Athletes with Differences of Sex Development (DSD)
•  World Athletics publishes Annual Report

Other Civil Society Organizations/Unions

• World Players responds to WADA’s new rules for substances of abuse: urgent action required
• EU Athletes report - Covid-19 impact on players and their player associations
• Full report - Preliminary Research on the impact of the COVID-19 Pandemic on Players and their Player Associations European Elite Athletes Association
• EU Athletes supports Belarusian athletes and calls for the release of Yelena Leuchanka

In the News

Cricket

• CSA may consider criminal case against Thabang Moroe after damning findings - Cricket South Africa (CSA) has finally released a summary of the Fundudzi Report which revealed serious allegations of mismanagement by former chief executive Thabang Moroe.

Doping

• U.S. Cycling Athlete Jeff Martin Accepts Sanction for Anti-Doping Rule Violation
• U.S. Weightlifting Athlete Morgan Millican Accepts Sanction for Anti-Doping Rule Violation
•  Liam Morgan - Kenyan President troubled by doping cases among country's athletes
• Sean Ingle - Former Team Sky doctor destroyed laptop before handing it to experts, tribunal told

• French Open 2020: Alleged match-fixing investigated in women's doubles match

Academic Materials

International Sports Law Journal

• Shaun Star & Sarah Kelly - A level playing field in anti-doping disputes? The need to scrutinize procedural fairness at first instance hearings
• Cedrick Aghey - Integration of eSports in the structure of Ifs: disruption or continuity?
• Jacob Kornbeck - What can sports governing bodies do to comply with EU antitrust rules while maintaining territorial exclusivity?

Blog

Asser International Sports Law Blog

• SFT rejects Semenya appeal: nothing changes - By Andy Brown
• The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei
• The SFT’s Semenya Decision under European human rights standards: Conflicting considerations and why a recourse could be successful at Strasbourg - By Kevin Gerenni
• Selected procedural issues –and questions– arising out the Caster Semenya Judgment of the Swiss Federal Tribunal - By Despina Mavromati
• Caster Semenya Case Exposes Design Flaws in International Sports Governance - By Roger Pielke Jr.
• Caster Semenya at the SFT – in 10 points - By Jack Anderson
• Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision - By Marjolaine Viret
• New Transnational Sports Law Articles Released on SSRN - Antoine Duval

 Law in Sport

• WADA v. Sun Yang & FINA: Reflections of a Chinese lawyer & lessons for sports in China
• Freedom of speech vs. employment obligations in Germany – the cases of Joshiko Saibou & Jadon Sancho
• Cheating in esports: a review of ESIC’s "coach spectator bug" decision
• How rugby union is responding to Covid-19: a legal update
• Is there trouble on the horizon for algorithms in sport?
• What does The Singapore Convention mean for the future of international sports mediation?

Play the Game

• Athletes’ gestures are protected by international human rights law
• The same clubs dominate Champions League despite the corona pandemic: CL Diversity Index 2020/21
• Athletes should not be gagged in exchange for Olympic dream
• Australian football executives sue FIFA whistleblower

Sport and EU Blog

• The Professional Tennis Players Association: a vehicle for improvement in governance standard

Sport Integrity Initiative

• Six tennis players involved in fixed matches
• Fiji footballers set to appeal doping bans
• Sports Integrity Briefs – 1 October 

SportLegis

• Lack of legal interest worthy of protection in case of a sporting competition that already took place
• A letter of appointment of a sole arbitrator is not a decision that can be appealed directly to the Swiss Federal Tribunal
•  Questions of standing to be sued and alleged violation of procedural public policy
• Partial annulment of a CAS award due to violation of the party’s right to be heard

Podcasts

LawInSport

• Ricky Volante, Chief Executive Officer at the Professional Collegiate League - E95
• #Justice4Navid - How should sport respond? – E94
• Moving from exclusive to inclusive models of sport - Takuya Yamazaki - E93

The Forward Line

• EPISODE 27: TFL TACKLES Broadcast Wars, the Big 10 Conference & Conor McKenna's Retirement
• EPISODE 25: TFL TACKLES the Pink Mercedes, Free the Flag & the Tour of Poland

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.

1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations.

2.     Applicability of the ECHR

An interesting question is how the Court will apply the ECHR to the case at hand. It has two options at its disposal. It can either use the doctrine of positive or negative obligations to resolve the case. The most logical solution would be to favour the positive obligations route. This doctrine allows the Court to hold states accountable in situations involving private parties. It obliges states to intervene in these situations and not to simply sit back and remain passive. In essence, the present case opposes two private parties: Caster Semenya on the one side and World Athletics on the other. The only connection of the case to Switzerland is a judgment by its Federal Tribunal reviewing the award rendered by the CAS. Indeed, unlike most international federations, World Athletics is registered in Monaco and not in Switzerland.

The Court’s case law also appears to favour this option. In Mutu and Pechstein, the Court indirectly stated that Switzerland’s positive obligations were at play (paras 65-67). The problem with this approach is that it makes it difficult to test a set of private regulations directly against the Convention. In its Mutu and Pechstein decision, the Court sidestepped this problem by somewhat ignoring Switzerland’s positive obligations. It simply applied the requirements of Article 6 ECHR directly to the CAS proceedings without worrying about the role of Switzerland and its Federal Tribunal.[1] Mutu and Pechstein suggests that the Court is willing to use the positive obligations doctrine and tweak it where it feels it is necessary to uphold athletes’ Convention rights. It is argued here that the Court’s approach in Semenya will be similar since the case raises several fundamental rights questions which have not been dealt with extensively by previous courts.

3.     Substantive issues

a.      Semenya’s right to private life (Article 8 ECHR)

Another crucial question is whether the Court will be willing to rely on its Article 8 ECHR case law relating to transgender persons. A.P., Garçon and Nicot is of particular importance in this context. This case was about a French law making the recognition of transgender persons’ preferred gender conditional on a sterilisation surgery or treatment. The Court stated that this law presented transgender persons not willing to undergo sterilisation with an “impossible dilemma” (para 132). They had to choose between their physical integrity or the legal recognition of their gender identity. The Court deemed this burden to be unnecessary to guarantee the principle of the inalienability of civil status and the need for consistency and reliability of civil-status records and thus in violation of Article 8 ECHR.

The Regulations create a similar dilemma. Despite having been identified by the South African State and identifying herself as a female, Semenya cannot compete in the female category unless she compromises her right to physical integrity by undergoing testosterone lowering treatment. In addition, noncompliance with the Regulations means that she cannot run the middle-distance events she excels at. It is therefore likely that she must give up her international sports career.[2]

It can be argued that both cases are comparable. While it is true that, unlike the French law, the Regulations aim her sports status and not her legal sex, both rules are not so different when one considers the specificity of her profession. As a famous athlete whose life revolves around sport, a mismatch between her legal sex and “sports” sex has major consequences on her life as a professional athlete and beyond. In these special circumstances, it is difficult to strictly differentiate the legal sex from the “sports” sex. Indeed, she finds herself in the very peculiar situation of suddenly having to explain why, after a lifetime of being female for the purposes of both sex categories, she is still female enough for one but not the other. Another distinction between the Regulations and the French law is that the latter contained a sterilization requirement absent in the former. This distinction can be relativised in two ways. Firstly, both set of rules require the same type of medical treatment: surgery or hormone treatment. Secondly, although the Regulations do not require a permanent physical change, the recommended surgical and hormonal treatment may lead to irreversible changes and ultimately sterility.[3]

b.      Semenya’s right to non discrimination (Article 14 ECHR)

Regarding the potential discriminatory nature of the Regulations in the sense of Article 14 ECHR, Semenya will most likely question why the Regulations only institute a testosterone limit for female athletes. This assertion runs up against the legal hurdle of finding an appropriate comparator. For there to be a discrimination, it must in principle be possible to compare Semenya with a class of persons who are treated more favourably. This task is not made easier by the fact that no intersex case has ever been decided by the Court.[4]

In theory, three comparisons are imaginable[5]: a comparison with male, female, or intersex athletes. The viability of each comparator depends on which definition of sex is used.[6] Sex can be understood from a civil status, gender identity or biological standpoint. It is unclear whether the Court will be convinced by World Athletics’ preference for the biological sex definition. World Athletics used this definition to argue that Semenya is “biologically male” for the purpose of athletics and must therefore be compared to male and not female athletes.[7] If the condition of participation is being “biologically female”, there is no discrimination because Semenya is being treated like all the other athletes who do not fulfil this condition.[8] However, the situation completely changes if the biological sex definition is dropped in favour of the others.

4.     Proportionality of the Regulations

Finally, the Court may have to engage in a delicate balancing act between the different interests at stake. On the one hand, there are the interests of World Athletics. As an international federation, it considers it is in the best position to develop the most appropriate rules for dividing females and males for the purpose of athletics. On the other hand, there are the opposing interests of Semenya and her fellow competitors. It is a classic case of competing rights which happen also to be fundamental goals of sport: inclusion vs fairness.[9] Including intersex athletes in the female category might be unfair towards the other female athletes. Contrary to other physical or genetical traits, high levels of testosterone are viewed by some to give intersex athletes an insurmountable advantage over their female competition. By adopting and defending the Regulations, it is clear that World Athletics shares this view and is sensitive to the fairness argument.

One way of avoiding this balancing of interests exercise is to decide that the Regulations are not fit for purpose. Without getting into scientific arguments, it appears safe to affirm that while most experts agree that testosterone has a positive effect on performance, there is still a lack of consensus on the degree of that effect.[10] Both the CAS and the Swiss Federal Tribunal overcame this uncertainty by giving a lot of weight to the statistical overrepresentation of women with DSDs in elite athletics.[11] A striking example of this overrepresentation is the women’s 800 m final at the 2016 Olympics where Semenya and two other athletes with DSDs occupied all three podium places thanks to the suspension of a previous version of the Regulations.

However, an alternative view is plausible. The capability of the Regulations to achieve their goal of ensuring fairness can be called into question on three fronts.

Firstly, there is a twofold problem relating to the quality of the evidence and the conclusions drawn from it. The quality of the evidence is low because in addition to there only existing few studies on the relationship between testosterone and performance, those that do exist rely on flawed data such as double counting athletes and times.[12] Irrespective of the concerns regarding the quality of the evidence used, the conclusions drawn from it are inconsistent because World Athletics’ choice to establish a testosterone limit for some, but not other athletic events is illogical.[13] According to the evidence, female athletes with high levels of testosterone have a competitive advantage in the following athletic disciplines: 400 m (2,73%), 400 m hurdles (2,78%), 800 m (1,78%), hammer throw (4,53%) and pole vault (2,94%).[14] No performance advantage was shown to exist in other athletic disciplines.[15] The inclusion of the 1500 m and one mile events into the Regulations but not the hammer throw and pole vault runs counter to the evidence and the goal of ensuring a level playing field.

Secondly, there appears to be no satisfying answer as to why there is no equivalent testosterone limit for male athletes despite their testosterone levels differing much more significantly[16].

Thirdly, the choice of using testosterone as the determining factor can be called into question. Given the wide range of physical attributes that are helpful in sport, it is not clear what makes testosterone so different from other physical attributes. Would a mix of physical attributes and parameters like the one used in Paralympics not be fairer and more inclusive?[17]

5.     Conclusion

The Semenya case has the potential to appreciably change international federations’ and Switzerland’s relationship with the ECHR. It is shown above that if the Court wants to apply the ECHR directly to the Regulations, it must bend the doctrine of positive obligations. Until now, the Court has not explained its unconventional use of the doctrine. Two explanations are at the Court’s disposal.[18] They are both premised on the idea that Semenya is in a position of dependence towards World Athletics.

Firstly, it is possible to extend the reasoning behind Mutu and Pechstein according to which the CAS (a private Court) must, in situations involving forced arbitration, offer the same fair trial guarantees as a state court, to all types of sports regulations.[19] Indeed, if one accepts that sports arbitration clauses are compulsory, it becomes very difficult to argue that sports regulations in general are not compulsory since the former are contained in the latter.[20]

Secondly, the Court can treat international federations analogous to state-like entities.[21] The relationship between Semenya and World Athletics is akin to that between regular citizens and a state due to the size, power, and monopolistic position it holds in the sport of athletics.[22] The Semenya case exemplifies this power imbalance well. World Athletics’ monopoly means that it can impose the Regulations upon Semenya. She cannot object to this effectively since giving up her international athletics career is not an option as she would put her livelihood at risk.[23]

In the present case, the first explanation is more fitting because World Athletics’ seat is in Monaco and not in Switzerland. If, as argued here, the Court bends the positive obligations doctrine to properly engage with the arguments raised by Semenya, this would give it the opportunity to explain its unusual approach. But even if the Court does not take this opportunity, its unconventional use of the doctrine of positive obligations would still send a message to international federations and Switzerland that they must take ECHR considerations seriously in spite of the private nature of international sports disputes.

Beyond the question of the applicability of the Convention, the Semenya case has the potential to have far-reaching consequences for the world of sports. This is because of the wide-ranging reach of the Court’s decisions and the fact that World Athletics’ policy on intersex athletes is based on a recommendation made by the International Olympic Committee (IOC). As the supreme governing body of global sports, the IOC’s policy on this matter influences sports regulations at all levels throughout the world.

Finally, the case is infused with highly relevant but difficult scientific, sports and societal issues. The discussions around the definition of sex are particularly sensitive in today’s society. The complexity and sensitive nature of the case as well as the clash between two fundamental goals of sport are all ingredients for an extremely contentious fight which will ultimately come down to the judges’ scorecards. Whilst a split decision is likely, controversy is certain.

[1] Franck Latty, "Le TAS marque des points devant la CEDH" (2018) issue 192 Revue juridique et économique du sport 31, 32.

[2] Unless she competes in disciplines not covered by the Regulations. After contemplating competing in events without testosterone limits, Caster Semenya had to give up trying to qualify for the 2020 Olympics in Tokyo.

[3] Mandates of Special Rapporteurs and the Working Group “Special Procedures Communication to the IAAF” (18 September 2018) OL OTH 62/2018 5.

[4] Although this is due to change soon. See C Delrave “Medical “normalisation” of intersex persons: third-party intervention to the ECTHR in the case of M. v. France” (Strasbourg Observers, 7 April 2021).

[5] See generally Robert Wintemute, "Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes" (1997) vol 60 issue 3 The Modern Law Review 334, 334-336.

[6] Janis Block, Geschlechtergleichheit im Sport – Mit besonderer Berücksichtigung der Diskriminierung von trans- und intersexuellen Sportlerinnen unter den Voschriften des Allgemeinen Gleichbehandlungsgesetzes (Schriften zur Gleichstellung Band 39, Nomos 2014) 328-329.

[7] Mokgadi Caster Semenya v International Association of Athletics Federations [2019] Court of Arbitration for Sport 2018/O/57294 para 295.

[8] The same considerations apply under German law (see endnote 6).

[9] “The battle over trans athletes in American schools heats up – Inclusivity bumps up against fairness” The Economist (London, 5 September 2020).

[10] Mokgadi Caster Semenya v International Association of Athletics Federations paras 473-538.

[11] ibid para 527 and Judgment of DSD Regulations [2020] Swiss Federal Tribunal 4A_248/2019 and 4A_398/2019 para 9.8.3.4.

[12] Roger Pielke Jr, Ross Tucker and Erik Boye, “Scientific Integrity and the IAAF testosterone regulations” (2019) vol 19 issue 1-2 International Sports Law Journal 18, 21-22.

[13] See also Matthieu Maisonneuve, "Tribunal arbitral du sport, Mokgadi Caster Semenya & Athletics South Africa c/ International Association of Athletics Federations (IAAF) c/ Suisse, sentence du 30 avril 2019" (2019) issue 3 Revue de l’Arbitrage 941, 955.

[14] Mokgadi Caster Semenya v International Association of Athletics Federations para 338.

[15] ibid.

[16] The normal range for men is 8-30 nmol/L compared to 0.1-1.8 nmol/L for women. See “What Caster Semenya’s case means for women’s sport” The Economist (London, 8 May 2019).

[17] Maayan Sudai “The testosterone rule – constructing fairness in professional sport” (2017) vol 4 issue 1 Journal of Law and the Biosciences 181, 193.

[18] Maisonneuve (n 13) 964-965.

[19] Björn Hessert, “Cooperation and reporting obligations in sporting investigations” (2020) issue 3-4 International Sports Law Journal 145, 149.

[20] ibid.

[21] Latty (n 1) 32.

[22] French authors speak of the similarity between the "Sporting power" and "State power". See for instance Clémentine Legendre, "La soumission de la Puissance sportive à la Convention européenne des droits de l’homme: réflexions à partir de l’arrêt Mutu et Pechstein" (2020) issue 11 Recueil Dalloz 618.

[23] Hessert (n 20) 149.