Editor’s note: Tomáš Grell is currently an LL.M. student in Public International Law at Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a part-time intern.

In its press release of 28 February 2017, the International Olympic Committee ('IOC') communicated that, as part of the implementation of Olympic Agenda 2020 ('Agenda 2020'), it is making specific changes to the 2024 Host City Contract with regard to human rights, anti-corruption and sustainable development. On this occasion, IOC President Thomas Bach stated that ''this latest step is another reflection of the IOC's commitment to embedding the fundamental values of Olympism in all aspects of the Olympic Games''. Although the Host City of the 2024 Summer Olympic Games is scheduled to be announced only in September this year, it is now clear that, be it either Los Angeles or Paris (as Budapest has recently withdrawn its bid), it will have to abide by an additional set of human rights obligations.

This two-part blog will take a closer look at the execution of the Olympic Games from a human rights perspective. The first part will address the most serious human rights abuses that reportedly took place in connection with some of the previous editions of the Olympic Games. It will also outline the key characteristics of the Host City Contract ('HCC') as one of the main legal instruments relating to the execution of the Olympic Games. The second part will shed light on the human rights provisions that have been recently added to the 2024 HCC and it will seek to examine how, if at all, these newly-added human rights obligations could be reflected in practice. For the sake of clarity, it should be noted that the present blog will not focus on the provisions concerning anti-corruption that have been introduced to the 2024 HCC together with the abovementioned human rights provisions.

Examples of Olympic Games-related human rights abuses 

The large majority of Olympic Games-related human rights abuses fall into one of the following categories: (i) violations of labour-related rights; (ii) forced evictions; and (iii) repressions of civil rights, in particular the right to freedom of expression and the right to peaceful assembly. In addition, the execution of the Olympic Games can entail negative environmental impacts.

Violations of labour-related rights 

International labour standards are primarily laid down in a number of conventions and other instruments adopted by the International Labour Organization ('ILO'). The ILO identifies four cornerstone principles, namely the right to freedom of association and collective bargaining, the elimination of all forms of forced labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.[1] These principles are also reflected to a certain extent in the Universal Declaration of Human Rights ('UDHR'),[2] the International Covenant on Civil and Political Rights ('ICCPR'),[3] the International Covenant on Economic, Social and Cultural Rights ('ICESCR')[4] and regional human rights treaties, such as the European Convention on Human Rights ('ECHR').[5] Other fundamental labour-related rights include, for instance, the right to rest, leisure, fair wages or safe and healthy working conditions.[6]

Thousands of workers coming from both inside and outside of the Host Country are recruited in the run-up to the Olympic Games to ensure that Olympic venues are built on time. Regrettably, these workers are often subjected to multiple violations of their labour-related rights. A report published by Human Rights Watch ahead of the 2008 Summer Olympic Games in Beijing revealed, inter alia, that internal migrant workers frequently faced delayed payment of their wages and were denied basic services linked to China's household registration system, known as Hukou.[7] Furthermore, the freedom of association of these workers was restricted as they could not join China's only legal trade union body, the state-sponsored All-China Federation of Trade Unions.[8] The 2014 Winter Olympic Games in Sochi received a significant influx of migrant workers coming to Russia mostly from Central Asia. Several reports demonstrated that, in addition to unpaid wages or excessive working hours, migrant workers in Sochi were also prevented from moving to another employer as their work permits or personal identity documents were often withheld.

Forced evictions 

The United Nations Committee on Economic, Social and Cultural Rights ('CESCR') defines the term 'forced eviction' as ''the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection''.[9] The CESCR further specifies that forced evictions might be permissible if the individuals concerned are provided with an adequate compensation for any affected property or, in cases where forced evictions result in the individuals concerned being rendered homeless, an adequate alternative housing, resettlement or access to productive land.[10] Moreover, forced evictions should be carried out in conformity with general principles of reasonableness and proportionality.[11]

Some of the previous editions of the Olympic Games have seen whole communities being removed from their homes to make way for stadiums, accommodation facilities and infrastructure. According to research conducted by the Centre on Housing Rights and Evictions, at least 1.25 million people were displaced prior to the Beijing Games.[12] Thousands of families had been relocated from favelas in Rio de Janeiro before the 2016 Summer Olympic Games were opened. Doubts have been raised whether the affected individuals were provided with an adequate compensation and other guarantees as referred to above.[13]

Repressions of civil rights

Rule 50 (2) of the Olympic Charter stipulates that ''no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas''. Based on this provision, the Host Country may adopt laws and take measures restricting the right to freedom of expression[14] and the right to peaceful assembly.[15] The Chinese government was accused of curtailing the right to freedom of expression of domestic and foreign journalists prior to the Beijing Games. In February 2014, four LGBT-advocates from Russia were detained when they were about to protest against discrimination at the Sochi Games.

Rule 50 (2) of the Olympic Charter also prevents athletes from making political statements in any Olympic sites or venues. At the 1968 Summer Olympic Games in Mexico City, the IOC showed no tolerance for the black power salute, a political demonstration conducted by Afro-American athletes Tommie Smith and John Carlos (gold and bronze medallists in the 200-meter sprint) with the view of supporting their compatriots in the struggle against racial segregation. At the Sochi Games, the IOC did not allow Ukrainian athletes to wear black armbands in commemoration of those who died during the conflict in the country. It is arguable that such examples constitute an unlawful interference with the freedom of expression of athletes competing in the Olympic Games.[16]

Negative environmental impacts

Despite not being generally accepted as a human right per se, the right to a safe and healthy environment might be inferred from other human rights, including, for instance, the right to life or the right to food and water.[17] It should also be noted that environmental concerns are closely intertwined with the concept of sustainable development, as exemplified in the Rio Declaration on Environment and Development which provides that ''environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it''.[18]

The first Olympic Games that were widely criticized for disregarding environmental considerations were the 1992 Winter Olympic Games in Albertville.[19] By contrast, it is widely recognized that the 1994 Winter Olympic Games in Lillehammer were executed in an environmentally-sustainable manner, arguably in response to the Rio Declaration on Environment and Development which was agreed upon only few months after the closing ceremony of the Albertville Games.[20] Insofar as the more recent editions of the Olympic Games are concerned, the Rio Games faced serious difficulties relating to the polluted waters of Guanabara Bay, an Olympic venue for sailing events. In a similar vein, preparations of the upcoming 2018 Winter Olympic Games in Pyeongchang have been marred by allegations of destroying 500-year-old virgin forest to make room for a ski slope.

Introduction to the HCC

The previous section has portrayed some of the most serious human rights abuses associated with the execution of the Olympic Games. These abuses call for an adequate response from the IOC. Before proceeding to analyse whether the human rights provisions recently introduced to the 2024 HCC may constitute an effective remedy, it is essential to take a cursory look at the HCC as one of the main legal instruments linked to the execution of the Olympic Games.

What should be known in the first place

Following the completion of the selection procedure, the HCC is entered into by the IOC on the one hand and the successful Candidate City ('Host City') and the National Olympic Committee of the Host Country ('Host NOC') on the other hand. Within five months after the execution of the HCC, the Host City and the Host NOC shall form the Organising Committee of the Olympic Games ('OCOG'), an entity endowed with legal personality under the laws of the Host Country.[21] The Host City and the Host NOC shall subsequently ensure that, within one month after the OCOG's formation, the OCOG becomes a party to the HCC and adheres to all its terms.[22] Even though the Host Country itself is not a party to the HCC, it plays an important role in fulfilling the obligations contained therein. For instance, the Host Country Authorities are required to take all necessary measures to guarantee the safe and peaceful celebration of the Olympic Games.[23]

As such, the HCC in its current form consists of four separate documents which apply in the following order of precedence: (i) The HCC – Principles; (ii) The HCC – Operational Requirements which provides a detailed description of the main deliverables and other obligations to be performed by the Host City, the Host NOC and the OCOG, including, inter alia, obligations relating to finances, media or the Olympic Torch Relay; (iii) The Games Delivery Plan which outlines the main planning framework, timelines and milestones to be respected by the Host City, the Host NOC and the OCOG; and (iv) The Candidature Commitments which concerns all guarantees and other commitments contained in the Host City's candidature documentation.[24] Since the present blog deals exclusively with the HCC – Principles, all references to the HCC throughout this post should be taken to include the HCC – Principles only.

The HCC is governed by the domestic laws of Switzerland.[25] The parties thereto undertake to submit all their disputes concerning the validity, interpretation or performance of the HCC to the Court of Arbitration for Sport ('CAS'). If, for any reason, the CAS refuses to exercise its jurisdiction in a particular case, the domestic courts in Lausanne shall be competent.[26]

The main purpose of the HCC is to delegate the execution of the Olympic Games from the IOC to other actors, namely the Host City, the Host NOC and the OCOG.[27] As a general rule, these actors shall be jointly and severally liable for all their obligations, guarantees and other commitments under the HCC, whether entered into individually or collectively.[28] The Host City is primarily tasked with delivering the public infrastructure. It may create and grant powers to an Olympic Delivery Authority[29], a public entity that ''combines the functions of a local council, planning authority, transport executive, trading standards office and police service''.[30] The Host NOC is concerned predominantly with sport-related matters, whilst the OCOG is responsible for hiring suppliers and contractors to build Olympic venues, lodging athletes and officials or elaborating reports on a regular basis.[31] This is not to say, however, that the IOC is not involved in the execution of the Olympic Games. Given that the Olympic Games are the exclusive property of the IOC,[32] the IOC provides significant financial and other benefits to its agents, determines the core requirements, exercises supervision and takes measures in case of non-compliance with the HCC.

Core requirements

First and foremost, the Host City, the Host NOC and the OCOG undertake to respect the Olympic Charter and the IOC Code of Ethics. By signing the HCC (or acceding thereto), they also agree to carry out their operations ''in a manner which promotes and enhances the fundamental principles and values of Olympism as well as the development of the Olympic Movement''.[33] Other core requirements laid down in the HCC relate mostly to human rights, anti-corruption, environmental protection and sustainability, security, betting and prevention of manipulation of competitions, intellectual property rights, entry and stay of athletes and Games-related personnel, taxes, media and marketing. The provisions concerning human rights, environmental protection and sustainability will be specifically examined at a later stage.

IOC's supervision of the execution of the Olympic Games

In order to monitor the progress of, and provide guidance to, the OCOG, with respect to the planning, organisation, staging and financing of the Olympic Games, the IOC creates a Coordination Commission with members representing the IOC, the International Federations, the National Olympic Committees, OCOGs from the past, the IOC Athletes' Commission and the International Paralympic Committee, as well as experts designated or approved by the IOC.[34] As part of their mandate, members of the Coordination Commission conduct site inspections and meet with representatives of the OCOG and the Host Country on a regular basis.[35]

Measures in case of non-compliance with the HCC

The most serious measure contemplated by the HCC in the event of non-compliance therewith is its termination by the IOC and subsequent withdrawal of the Olympic Games from the Host City, the Host NOC and the OCOG. Termination of the HCC might be prompted by a failure on the part of the Host City, the Host NOC and/or the OCOG to perform ''any material obligation pursuant to the HCC or under any applicable law''.[36] That being said, the HCC sets out a two-step procedure for its termination and subsequent withdrawal of the Olympic Games. First, the IOC notifies the Host City, the Host NOC and/or the OCOG and calls upon the relevant party to remedy its failure within 60 days of receiving the notification. This time limit is shortened to 30 days if the opening ceremony of the Olympic Games is less than 120 days away.[37] Second, if the relevant party does not respond to its failure in a timely and accurate manner, the HCC shall be terminated and the Olympic Games withdrawn with immediate effect.[38] Apart from termination of the HCC and subsequent withdrawal of the Olympic Games, the IOC may decide, for example, to withhold any grant to be made to the OCOG in accordance with the HCC.[39]

Conclusion

Against the background of the reform proposals embodied in Agenda 2020, the initial failure of the 2024 HCC to incorporate human rights obligations, other than those relating to non-discrimination, was presented as an astonishing omission. Although the IOC has recently surrendered to public pressure and it has finally added human rights obligations to the 2024 HCC, its role does not end here. The second part of this blog will examine whether the insertion of human rights obligations to the 2024 HCC is to be regarded as a turning point in history of the Olympic Games or risks being an empty promise.

[1]    ILO Declaration on Fundamental Principles and Rights at Work; Article 2.

[2]    UDHR; Article 23.

[3]    ICCPR; Articles 8, 22, 26.

[4]    ICESCR; Articles 2, 8.

[5]    ECHR; Articles 4, 11, 14.

[6]    ICESCR; Article 7.

[7]    Human Rights Watch, 'One Year of My Blood: Exploitation of Migrant Construction Workers in Beijing', March 2008, at 22, 39.

[8]    Ibid., at 42.

[9]    CESCR General Comment No. 7; para. 3.

[10]   Ibid., paras. 13, 16.

[11]   Ibid., para. 14.

[12]   Centre on Housing Rights and Evictions, 'Fair Play for Housing Rights: Mega-Events, Olympic Games and Housing Rights', June 2007, at 154.

[13]   R. Gauthier, The International Olympic Committee, Law and Accountability, Routledge, 2017, at 90.

[14]   ICCPR; Article 19 (2), (3).

[15]   Ibid., Article 21.

[16]   F. Faut, 'The Prohibition of Political Statements by Athletes and its Consistency with Article 10 of the European Convention on Human Rights: Speech is Silver, Silence is Gold?', (2014) 14 (3) ISLJ 253.

[17]   A. Boyle, 'Human Rights and Environment: Where Next?', (2012) 23 (3) EJIL 613, at 617.

[18]   Rio Declaration on Environment and Development; Principle 4.

[19]   S. Samuel, W. Stubbs, 'Green Olympics, Green Legacies? An Exploration of the Environmental Legacies of the Olympic Games', (2012) 48 (4) International Review for the Sociology of Sport 485, at 487.

[20]   Ibid.

[21]   2024 Host City Contract – Principles; Article 3.1.

[22]   Ibid., Article 3.3.

[23]   Ibid., Article 17.1.

[24]   Ibid., Article 1.1.

[25]   Ibid., Article 51.1.

[26]   Ibid., Article 51.2.

[27]   Ibid., Article 2.

[28]   Ibid., Article 4.1.

[29]   In practice, an Olympic Delivery Authority might operate under different names.

[30]   M. James, G. Osborn, 'London 2012 and the Impact of the UK's Olympic and Paralympic Legislation: Protecting Commerce or Preserving Culture', (2011) 74 (3) Modern Law Review 410, at 419-420.

[31]   Gauthier (supra note 13) at 65-66.

[32]   Olympic Charter; Rule 7.2.

[33]   2024 Host City Contract – Principles; Article 13.1.

[34]   Ibid., Article 27.1. See also Olympic Charter; Rule 37.

[35]   A. Geeraert, R. Gauthier, 'Out-of-control Olympics: Why the IOC is Unable to Ensure an Environmentally Sustainable Olympic Games', (2017) 19 Journal of Environmental Policy & Planning 10.

[36]   2024 Host City Contract – Principles; Article 38.2. (d).

[37]   Ibid., Article 38.3. (a).

[38]   Ibid., Article 38.3. (b).

[39]   Ibid., Article 36.2. (b).

Call for papers

20 years of the World Anti-Doping Code in Action

International Sports Law Journal Conference 2025

Asser Institute, The Hague

6 and 7 November 2025

The Editors of the International Sports Law Journal (ISLJ), the Asser Institute and the Research Chair on Responsible Sport of the University of Sherbrooke invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 6 and 7 November 2025 at the Asser Institute in The Hague. The ISLJ, published by Springer and T.M.C. Asser Press, is the leading academic publication in the field of international sports law and governance. The conference is a unique occasion to discuss the main legal issues affecting international sports with academics and practitioners from all around the world. 

The 2025 ISLJ Conference will focus on assessing the first 20 years (2004-2024) of operation of the World Anti-Doping Code (WADC) since its entry into force in 2004, while also discussing its future prospects, in light of the new version of the Code due to be adopted at the Busan Conference in December 2025 and the 10th Conference of the Parties to the International Convention against Doping in Sport, to be held in Paris from 20 to 22 October. The aim of the conference will be to take a comprehensive stock of the operation of the private-public transnational regulatory regime which emerged in the wake of the WADC.  This regime is structured around a complex network of national and global institutions engaged in anti-doping work (WADA, NADAs, IFs, accredited laboratories) and guided by an equally complex assemblage of norms located at the global (WADC and the WADA Standards), international (UNESCO Convention against Doping in Sport), regional (Council of Europe Anti-Doping Convention), and national (various national anti-doping legislations) level. This makes for a fascinating and convoluted transnational legal construct in need of being studied, analysed and criticised by scholars. 

Reviewing 20 years of implementation of the WADC warrants a special edition of the ISLJ Conference and of the journal, which invites scholars of all disciplines to reflect on the many questions and issues linked with it. We welcome proposals touching on the following subjects (and more): 

• The governance of the world anti-doping regime
• The public-private nature of this governance
• The transparency of this governance
• The legitimacy of this governance
• The participatory nature of this governance
• The role of scientific experts in this governance

•  The normative content of the WADC and the international standards
• The strict liability principle 
• The privacy rights of athletes under the WADC
• The sanctioning policy under the WADC
• The role of the international standards in implementing the WADC
• The compatibility of the WADC with human rights

• The glocal implementation of the WADC
• The role of local institutions (NADOs/Labs/NOCs) in the implementation of the WADC
• The tension between global (WADA) and local (NADOs/Labs/NOCs) in the implementation of the WADC
• The role of the IFs in the implementation of the WADC
• The role of the ITA in the implementation of the WADC
• The role of judicial bodies (national courts, disciplinary committees of IFs, CAS) and their jurisprudence in the implementation of the WADC 

• The effectiveness of the world anti-doping regime
• The evaluation and evolution of the effectiveness of the world anti-doping regime in preventing doping
• The role of the media in unveiling the ineffectiveness of the world anti-doping regime
• The role of states in hindering the effectiveness of the world anti-doping regime
• The world anti-doping regime as a regime with a variable geometry of effectiveness

•  The future of the world anti-doping regime: Revolution, reform or more of the same?
• Do we need a world anti-doping regime? 
• If we do, should it be reformed? How? 

Abstracts of 300 words and CVs should be sent no later than 1 June 2025 to a.duval@asser.nl. Selected speakers will be informed by 30 June 2025. The selected participants will be expected to submit a draft paper by 15 October 2025. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. The Asser Institute will provide a limited amount of travel and accommodation grants (max. 350€) to early career researchers (doctoral and post-doctoral) in need of financial support. If you wish to be considered for a grant, please indicate it in your submission.  

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

As one may have gathered from the series thus far, the question that comes out of this endeavour for me, is whether redistribution in football would be better divorced from the transfer system?

In my introductory blog I point towards historical, cultural, and of course the legal explanations as to why redistribution was established, and why it might be held onto despite obvious flaws. In my second blog, I point out how the training compensation and solidarity mechanisms work in practice through an African case study, as well as the hindrance caused and the Eurocentricity of the regulations. The key take-away from my third blog on the non-application of training compensation in women’s football might be that training compensation should apply to both men’s and women’s football, or neither. The sweeping generalisation that men’s and women’s football are different as justification for the non-application to the women’s game is not palatable, given inter alia the difference between the richest and poorest clubs in men’s football. Nor is it palatable that the training compensation mechanism is justified in men’s football to incentivise training, yet not in women’s football.

In the fourth blog of this series, I raise concerns that the establishment of the Clearing House prolongs the arrival of a preferable alternative system. The feature of this final blog is to consider alternatives to the current systems. This endeavour is manifestly two-fold; firstly, are there alternatives? Secondly, are they better? 

1. Is training compensation necessary to incentivise training?

It might be the case that this question does not receive adequate attention. Though we are told there exists a need to incentivise training and the system as it stands is justified by this notion, is that truly what the redistributive mechanisms in the current form achieve? Furthermore, for all the flaws in reasoning and hindrance created by the mechanisms, is it really worth it?

During my time as an agent, I have personally never heard from a director or executive of a football club, the words or sentiment that, time - effort - money placed towards their youth football programs is done so solely, predominantly, or at all in anticipation of training compensation or solidarity payments.  Nor have I ever come across the sentiment from within any club, that a club would not care for or abandon its youth programs without the ‘dangling carrot’ of potential compensation. FIFA now refer to the redistributive mechanisms as ‘training rewards’, though one may reasonably struggle to connect these training rewards with a true definition of incentive. It appears more likely to be the case that any desire or expectation to be rewarded or compensated is an after the fact conclusion, when a player progresses professionally and a training club concludes that they are part of the reason for that players’ success. In a macro sense, given how infrequent it is for a training club to develop a professional, this seems to add weight to an argument that compensation does not create the purported incentive, or at least that clubs do not rely on the prospect.  It is because of this that I tend to lean towards the view that the incentivisation to train youth as a justification for redistributive measures may not have aged well. In any event, it would be interesting to test that intuition derived from experience, through a proper social scientific survey of clubs. Systems with such far-reaching implications should be grounded in a proper study of the socio-economic drivers of the training of football players.

On the other hand, the possibility of attracting large and exciting transfer fees is often spoken about within club walls.  For these ‘selling clubs’ with a clear intention to invest in youth and capitalise later in the form of transfer fees, such fees may be seen as compensation of sorts, but more likely as a remuneration for a deliberate though hardly risk-free investment. Moreover, these clubs do not simply abandon their first team and focus on youth and potential transfers exclusively. First team squads are also the beneficiary of strong youth systems and commonly the main reason a club invests in youth. Additionally, clubs can have a strong connection to their communities and see a combined duty and benefit of having strong youth programs. Clubs not only play a role in sustaining the social fabric of the communities to which they are situated, but benefit commercially through the many ways in which fans add value.

If it is true that compensation does not amount to incentivisation, then it is difficult to conclude that it is necessary. However, even if training compensation and the solidarity mechanism are not deemed necessary, a strong case can still be made for redistribution so long as the gap between wealthy and poor clubs remains or grows, and entire continents continue to be nurseries and the source of the muscle drain.

2. Imagining Alternative Redistributive Mechanisms

Proposing an alternative to the existing FIFA systems of redistribution is a difficult task. I have raised the concern of the Eurocentricity of the current regulations, and in proposing something else, one must be mindful that these are global regulations. If one suggests a form of taxation or tariff to redistribute, awareness of the myriad cultural differences on taxation and the multiplicity of enforcement contexts might be important. Also, whilst I have raised the question on whether compensation ought to be divorced from the transfer system, reasons for redistributing at all should be axiomatically better than not having a system of redistribution.

Intent and what is to be achieved needs to be clear. Is the ideal system of redistribution in place to reward ‘something’ or should redistribution be directed more deliberately and where it is needed, acting as welfare of a kind? I have already suggested that compensation does not incentivise clubs, though conversely, might clubs be disincentivised to grow if they only remain the beneficiaries of redistribution insofar as they stay sufficiently small and poor, whatever that threshold might be? Or could a system still incentivise growth, with clubs the beneficiaries of an amount that would not be enough to sustain themselves in full, yet enough to help them to continue to grow and commercialise? Whether greater commercialisation is a desirable change is another worthwhile question.

Despite the difficulties in suggesting an alternative, one can hope that a system of redistribution can be non-discriminative, does not create the hindrance effect to the current extent or encourage risky circumvention of the regulations (see blog 2 for detail), and is able to attain its legitimate aims. I would submit that the current systems do not tick these boxes. In this section, I provide some food for thought regarding potential alternatives, though I must caveat that I am not an economist and have not yet settled on an alternative myself.

a)     Coubertobin Tax

I will begin this section by introducing Andreff’s Coubertobin tax, in the interest of highlighting that others have thought about alternative systems of redistribution and have perhaps proposed alternatives that are arguably better than the current systems. Whilst I hope to present the Coubertobin tax adequately, one will need to read Andreff for the full picture.  Though valuable food for thought, I do not endorse the Coubertobin tax per se, as it has its flaws and remains connected to the transfer system, albeit to a lesser extent.

Inspired by a mix of the economic thought of James Tobin and Pierre de Coubertin, the idea of a Coubertobin tax “is to levy a tax at a 1 % rate on all transfer fees and initial wages agreed on in each labour contract signed by athletes and players from developing countries with foreign partners.”[1]

The objectives are as follows:

1. slightly covering the education and training cost, for his/her home developing country, of any athlete or player transferred abroad;
2. providing a stronger disincentive to transfer an athlete or a player from a developing country, the younger he/she is when the transfer takes place;
3. thus, slowing down the muscle drain from developing countries and toward professional player markets in developed countries; and
4. accruing revenues to a fund for sports development in the home developing country from the tax levied on every athlete or player transfer abroad.[2]

There is little wonder why Andreff desires to redistribute to developing countries. He has done extensive work on the correlation between economic prosperity and sporting success. This list is by no means exhaustive, but for instance, he writes extensively on the muscle drain, where athletes from developing nations move for financial and developmental reasons, which creates a myriad of follow-on issues to the home-country. He identifies the toll poverty takes on a developing country’s domestic leagues and competitions due to the muscle drain and the inability to train professionals to a world class standard. He notes that some athletes defect to other nations early and qualify for the adopted country’s national team. Per Andreff and in summary “the overall context of sport underdevelopment does not provide a strong incentive for talented players to stay in their home country even if a professional championship does exist there.”[3]

Andreff’s proposal is not set in stone and an admirable element to his work on the matter is the consistent offering of caveats that suggest, with more study and/or work, a certain piece of the Coubertobin system may benefit from amendment. Andreff describes his system as “a solution (not a panacea) which is likely to alleviate, along with some of the financial problems of developing countries, the aforementioned problem of the muscle drain.”[4] Most relevant is perhaps the idea that, the younger the player is in question regarding a transfer, the higher the tax (see suggested formulae).[5] This he submits, may put a brake on the muscle drain at such early ages, or result in greater amounts of money moved to developing nations if a club wishes to recruit a player at a significantly young age.

Andreff acknowledges hindrances, though takes a macro view that encompasses protecting minors, as well as strengthening local leagues in developing countries given the talent will remain for longer periods. One can envisage an additional positive result, in having young athletes finish non-football education having stayed at home until a later date.

Though this is my interpretation, I suspect Andreff finds it an easy task to identify the beneficiaries or winners of these transactions and therefore those parties should be the ones who pay the Coubertobin tax, on “the bill for the transfer fee and the first year wage”.[6]

Andreff raises the concern of “bargaining and corruption surrounding the tax collection in developing countries”,[7] though offers a plausible solution. “[T]he collection of the Coubertobin tax should be monitored and supervised by an international organization, either an existing one (UNDP or the World Bank) or an ad hoc one to be created.”[8] This is plausible as it is not so different to the way FIFA intends to outsource the operation of the Clearing House to a suitable and reputable organisation that would be subject to audit (see blog 4).

Andreff admits the tax “would meet with both hindrance and resistance”,[9] it would “not be easy to implement and enforce insofar as it has to be accepted on a worldwide basis”,[10] the system would contain administrative costs that would need sorting and ironing out, and there would need to be a method for disputes and perhaps fines for non-compliance.  Even so, the Coubertobin tax provides much food for thought as it is proposed for all professional sport and not just football. It attempts to address the muscle drain and the taxes proposed may prove less a hindrance than the current FIFA systems.

b)    Abolishment and Free Market Economics

If this was day one of football, there might be a strong argument for a free market approach, with emphasis on club management to make sure intelligent decisions are made to sustain clubs, with wealth the responsibility of the clubs themselves. However, we are not at the beginning of football.  Certain clubs in certain regions are the victims of much more than mismanagement, adding weight to an argument for a need to redistribute equitably.

As it stands, an equitable system or one where redistribution is directed to where it is most needed, is not in place and has not been proposed. Could it be the case, at least in the interim, that the free market is the best and fairest? The current systems appear at least somewhat a case of over-regulation with side effects that were not, or could not have been anticipated, like the hindrance effect and the pressures on vulnerable clubs to waive compensation to name just a couple.  It then seems defensible to abolish systems that do not work in the interim, than to hang on to those flawed systems until a better proposal is put forth. Instead, all efforts could be placed into study and research to remedy the obvious flaws.

Conversely, the free market in modern football would not appear to improve the situation for the kind of club I have identified frequently throughout this series, and although it may eliminate the hindrance effect, destination clubs would have their pick of players and poor clubs would undoubtedly lose all talent. Furthermore, if a system of redistribution was to be created that clearly improved football and the free-market approach had been adopted in the interim, a valid consideration might be the difficulty the relevant bodies would have in re-introducing a system of redistribution, having gone back to the free market for a period.  It is for these reasons that I can not endorse such an approach, however sympathetic I am to abolishment and the idea of alleviating hindrance and promoting free movement.

c)     FIFA Funded Solidarity: A New Model

As he addressed the Confederation of African Football’s (CAF) 42nd ordinary general assembly, FIFA President Gianni Infantino said, “I believe in Africa. I count on Africa, and you can count on me to help you to bring Africa to the top.” However admirable and applaudable are the purported goals of FIFA for Africa, and the sentiment warm, one cannot help but wonder if this African project, relevant to this blog series, could not be expedited by a substantial FIFA based investment. Infantino went on to say, “I want to see at least 50 national teams and 50 clubs from all over the world that can compete for the title of world champions with realistic chances of winning. And why shouldn’t Africa be at the top, with the incredible talent that we see shining every week, mainly in Europe’s top clubs? I am convinced it’s only a matter of commitment, work and engagement by all of us together.”

To answer the President’s question, one cannot see African clubs on top in a global sense, so long as all the best African players play, as the President said, in Europe. Further, we will continue to be less likely to see an African national team win a World Cup, whilst some of the best African players play for other nations to which they moved when they were younger, and whilst African federations are unable to organise like European federations, given they do not have the same resources.  I could of course go on, but one likely gathers my point. 

So, could FIFA make an investment sufficient to prop up Africa as it supposedly desires? Perhaps. How about an amount equal to the frequently referred gap between what is owed and paid when it comes to the redistributive mechanisms of FIFA? Could FIFA at least cover that gap? If one considers the annual financial reports, certainly, and probably further and in a more specific and deliberate fashion. Surely direct, targeted investment is preferable to leaving redistribution to the whim of a club’s good fortune to have registered a player that would go on to be a professional. That is, of course, if that player’s club did not have to waive training compensation to render a transfer possible.

The FIFA Forward Development Programme is described by FIFA as “global football development and the way we share the success of the FIFA World Cup”. It is an encouraging and frankly exciting initiative, and again one must applaud the efforts. Under the Infantino administration, FIFA has pledged more funding in this way than ever before. “On 13 June 2018, the FIFA Congress decided to increase investment in the FIFA Forward Development Programme still further for the next cycle of 2019-2022 with a 20% increase in the annual entitlement for each of the 211 member associations and six confederations.”

Anyone can go to the webpage for the FIFA Forward Programme, roll their cursor over the interactive map and see that FIFA are investing money in places of need. Disappointingly, not overly specific information is provided regarding the exact use of funding, though there are encouraging articles that unpack some of the investments and initiatives and these efforts should be commended (the FIFA Foundation Community Programme is another example of some of the encouraging work being done).  One element that is interesting and appealing within these funding programs, is the toying with an application process to be granted some form of investment. This perhaps shows an increased awareness that money ought to be distributed specifically and deliberately, to address a genuine need. Though not a trial per se, this kind of process could be used as one and may turn out to be preferable to clubs in need, who would for instance prefer to bypass the national association if that relationship is not so sturdy.   

At first glance, the almost even allocation of investment per member association found in Circular no. 1659 - FIFA Forward Development Programme – regulations (FIFA Forward 2.0) may seem equitable, though taking into account that some of the wealthier associations may be the beneficiaries of the systemic exploitation and drain that has featured in this blog series, might render the near even distribution questionable. Whilst “an additional amount of up to USD 1,000,000 is available for member associations with an annual revenue of USD 4 million or less”, one might reasonably wonder if that amount of extra funding to smaller and/or poorer associations is sufficient to affect real change.

Whilst I hope I have made clear that FIFA’s efforts ought to be commended, the overarching theme of this section is to consider if more could be done and if so, might those extra efforts to distribute funds be preferable and able to replace the current systems of redistribution connected to the transfer system. I do not find impressive the self-congratulatory theme of the statement from Alejandro Domínguez, Chairman of the FIFA Finance Committee, of being hundreds of millions of dollars under budget in the 2019 annual report, as well as possessing “sufficient liquidity”. FIFA, a not-for-profit organisation, was delighted to report that “at the 2019 year-end, total assets had increased to USD 4,504 million (four billion, five hundred and four million), chiefly made up of cash and financial assets (82%). Reserves also remained at a very satisfactory level at USD 2,586 million (two billion, five hundred and eighty-six million), clearly above the amount budgeted.”[11]

Proposing FIFA fund more redistribution is not a risk free, nor a concern free proposition, but it does appear the idea could be taken more seriously by the relevant stakeholders. FIFA’s predominate money maker is the FIFA World Cup, which is in a sense, a way of using the produce of the richest clubs in the world, which have in turn benefitted from some of the poorest clubs nursing the players until they are of age. FIFA, filling the frequently mentioned gap from the profits of the World Cup makes as much sense as any proposal. Is this not simply a case of, if more can be done then more should be done? Going off FIFA’s reports, it has the resources.

Within this potential alternative, where FIFA are responsible for raising and redistributing funding that would otherwise supposedly come from the current redistribution systems, is a change to the modality of redistribution. From what is currently intimately connected to training and transfers, this alternative provides for the much-needed decoupling, not only based on the philosophical flaws, but additionally due to the preferable practical implications that divorcing redistribution, training and the transfer market could achieve. In terms of a body or mechanism to implement an alternative like this, how might a Clearing House kind of project unfold, that adopts a specific and deliberate ethos to distributing FIFA funds? To expand, following a substantial process of planning and allocation of adequate resources, the creation of a specific arm dedicated to researching and identifying those areas of football most in need, as well as receiving and vetting applications for funding. Might that or a similar solution be achievable? It could be in-house or outsourced the same way the Clearing House is intended to be, geared to make suggestions, provide expert economic advice and proposals, reporting its findings back to FIFA for an extra layer of approval. Food for thought in any case.

3. Concluding Remarks

There is a core of wealth in football that has benefitted from, been propped up by, and drained the periphery. It is important to ensure the strength and survival of football outside this core of wealth and to actively make sure value is added to the periphery. Football needs to promote this notion and in doing so ask the question, where will the big clubs turn for talent and youth if those reservoirs which they drain are emptied and unable to continue to produce talent? 

If one is convinced that it is not necessary to incentivise training, that the current regulations have significant negative effects, that any system of redistribution should be non-discriminative, provide minimal hindrance to free movement and pursue deliberate legitimate aims, then one is in favour of overhaul. Further then, surely there is an obligation to address what can be in the immediate sense. Namely, to either default to the free market, until a convincing system of redistribution is created, or perhaps preferably, for FIFA to take the reins and fund redistribution to the periphery of football to a greater extent.

[1] Wladimir Andreff (2001). The correlation between economic underdevelopment and sport. European Sport Management Quarterly, 1, p.274.

[2] Wladimir Andreff, “A Coubertobin Tax Against Muscle Drain”, 4th Play the Game Conference: Governance in Sport: The Good, the Bad & the Ugly, Copenhagen, 6-10 November (2005) p.10.

[3] Ibid, p.5.

[4] Ibid, p.9.

[5] Ibid, p.11.

[6] Ibid, p.12.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] FIFA Annual Report 2019 p.124.

Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).

The granting - and subsequent lifting - of the suspensive effect of the DSD Regulations

This was one of the few cases in sports arbitration where the SFT granted an urgent interim relief (mesures superprovisionnelles), by ordering World Athletics to suspend the implementation of the DSD Regulations, only to lift such relief shortly afterwards for lack of prima facie “reasonable chances of success”. The fate of the motion to set aside the CAS Award appeared to be ominous already at that stage. Another relatively recent case where the SFT granted interim relief (only to revoke it later) was the Guerrero case. 

Legal interest of a federation in order to “support” its member athletes

According to the admissibility conditions of the Law on the Federal Tribunal (LTF), the party filing a motion to set aside a CAS award must have a current interest worthy of protection. It is e.g. extremely difficult to meet this condition in a case relating to a competition that already took place. It One must also have a “personal” legal interest worthy of protection (see the SFT judgment in the matter of FIFA v. P. Guerrero & WADA). World Athletics contested the “personal” legal interest of Athletics South Africa but the SFT drew the distinction between this case and one of its previous judgments (the Guerrero case), where FIFA had contested a doping-related sanction imposed by the CAS before the SFT. Other than in the Guerrero case, the Athlete’s national federation (ASA) had not previously rendered a decision on the Athlete; moreover, national federations are directly concerned by the DSD Regulations to the extent that they need to actively collaborate with their international federation for their effective implementation (Semenya Judgment, at 4.1.3) This means that, in similar cases in the future, member federations have also standing to challenge the validity of such regulations.

Waivers to appeal to the SFT against CAS awards are invalid, full stop.

The waiver to bring the case before the CAS included in the disputed DSD Regulations was, obviously, invalid to the extent that it was not the “fruit of an explicit consent” by the Athlete. The latter had thus the right to contest the CAS Award before the SFT and this federal jurisprudence has remained unaltered since the groundbreaking Cañas SFT judgment (see the Semenya Judgment at 4.2.4).

The CAS independence revisited – even though not questioned by the parties

Unlike other athletes, Caster Semenya did not attack the CAS Award suggesting the lack of independence or impartiality of the CAS—either as an arbitral institution or as the subjective independence of its arbitrators (see the Semenya Judgment at 5.1.2). The SFT still deemed important to repeat its jurisprudence on the institutional independence and the specialized character of the CAS, to which the parties brought their dispute (see the Semenya Judgment including all references to SFT and ECtHR case law at 5.1.2).

The meaning - and limits - of the SFT leitmotiv “facts established by the CAS Panel are binding upon the SFT”

This is the reason most often invoked by the SFT when declaring inadmissible a particular grievance raised by the parties as a “criticism of appellatory nature” (see also “faits constatés dans la sentence” in the Semenya Judgment at 5.2.2). It is well-known that, unlike the de novo review by the CAS under Article R57 CAS Code, the SFT will not review the facts as they were established by the CAS Panel – save for the most exceptional circumstances (see the Semenya Judgment at 5.2.3 f.).

In the particular circumstances of this case, the facts binding on the SFT did not prevent the latter from reviewing the legality of the DSD Regulations. The SFT could however only consider the facts as they were established in the CAS award and not in the parties’ version of facts, to the extent that these versions deviated from the CAS factual findings (see the Semenya Judgment at 6). As such, the starting point for such analysis (and obviously one of key importance) was the Panel’s factual finding that athletes subject to the DSD Regulations enjoy an “overwhelming” advantage over other female athletes that are not subject to such regulations (see the Semenya Judgment -“avantage insurmontable”- at 9.6.2, at 9.8.2 and 11.1).

Swiss law not applicable in the case at hand

With the international federation based in Monaco (an exception to the rule that international federations are based in Switzerland), the CAS Panel proceeded to the interpretation of the DSD Regulations based on the IAAF Constitution and Rules, the Olympic Charter, and Monegasque law. As such, it held that Swiss law was not applicable to the merits and the SFT confirmed such finding (See the Semenya Judgment at 5.1.1). This, however, does not seem to have any influence on the SFT’s findings to the extent that the latter is not an appellate court and should not evaluate the application of Swiss–or any other—law applied in the specific case (see the Semenya Judgment at 9.1).

Violation of the constitution of the panel for unduly limiting its (full) scope of review

The Athlete raised a—rather unusual—ground for annulment (particularly based on the ground of irregular composition of the tribunal) because the panel had allegedly refused to amend or complement the DSD Regulations, thereby unduly limiting its scope of review. The SFT dismissed the plea holding that the full power of review of the panel related to the control of the proportionality of the DSD Regulations and not their amendment. The SFT dismissed the plea as unfounded, even though it implicitly considered that this plea does not even fall within the scope of irregular composition of the arbitral tribunal under Article 190 (2) (a) PILA but could – at most – constitute a violation of the parties’ right to be heard (see the Semenya Judgment -with further references- at 7).

Violation of substantive public policy – the three pleas invoked by the Athlete

Caster Semenya’s request for annulment of the CAS Award due to a violation of substantive public policy was divided into three pleas: the violation of the principle of prohibition of discrimination, the violation of personality rights of the Athlete and the violation of the Athlete’s human dignity. In this respect, the two conflicting groups were the athletes subject to the DSD Regulations against the athletes who were not subject to the DSD Regulations.

Horizontal Application of the Prohibition of discrimination ?

The prohibition of discrimination as foreseen in Art. 8 (2) of the Swiss Constitution applies to the relation between individuals and the State and has no “horizontal” effect. Sports associations are considered “private” parties notwithstanding their size and thus discrimination resulting from such private parties does not form part of the essential values that form public policy. The “private” character of sports associations has long been an obstacle for athletes when invoking violations of their constitutional guarantees and was also mentioned in this judgment (at 9.4).

Notwithstanding its insistence on the “private” character of sports associations, the SFT does seem to hesitantly develop its jurisprudence. Similar to the principles of interpretation under Swiss law, where the SFT has held that statutes of large federations must be interpreted in accordance with the principles of interpretation of a (states’) legal acts (see e.g. the Kuwait Motorsport SFT Judgment), the SFT acknowledged in the Semenya case that the relationship between an athlete and a large (international) sports association bears similarities to the relationship between an individual and a state (see the Semenya Judgment, at 9.4).

In any event, this interesting debate will have to wait for another judgment since the SFT eventually found that there was no violation of the prohibition of the principle of discrimination by following the argumentation of the CAS Panel, whereby a discriminatory measure can still be allowed if justified by a legitimate objective (in casu the principle of equality of chances). In the case at hand, the SFT relied on the assessment made by the CAS Panel which, after hearing all the arguments raised by the parties, resulted in a reasonable outcome (or at least to a “not unreasonable” outcome) (see the Semenya Judgment, at 9.4 and at 9.8.3.3).

Breach of personality rights and the difference from the Matuzalem judgment

On the breach of personality rights plea, the SFT reiterated its limited scope within the public policy grievance, which requires a clear and severe violations of a fundamental right. Again, the DSD Regulations were not found to fall within the (narrow) scope of Art. 27 Swiss CO, neither from the viewpoint of physical integrity nor from the viewpoint of economic freedom (see the Semenya Judgment, at 10.1).

Other than in the Matuzalem case (the first – and only SFT judgment that annulled a CAS award for violation of substantive public policy so far), the athlete would still be capable of participating in the specified competitions after complying with the conditions set out in the DSD Regulations; moreover, there was no imminent risk of their economic existence as was in the Matuzalem case, whereas the measure was found to be able to achieve the desired goal, were necessary and proportionate (see the Semenya Judgment at 10.5).

Violation of human dignity

The SFT seemed to endorse the CAS Panel’s findings in this respect, and concluded that the impossibility to participate in specific competitions would not amount to a violation of the athlete’s human dignity.

Should the SFT broaden the scope of public policy for sports arbitration? The SFT still says “no”

The scope of substantive public policy according to well-established jurisprudence of the SFT is extremely narrow and such limited review is compatible with the ECtHR (see the Semenya Judgment with references to the Platini Judgment at 5.2.5; see also the Semenya Judgment at 9.8.3.3). The SFT, once again, refused to broaden the scope of the public policy as a ground for annulment of CAS awards. This reminds us of a somewhat different yet analogous attempt of the parties in the SFT Judgment 4A_312/2017. The SFT had reiterated its position that there should be no different notion of public policy tailored to sports arbitration.[2]

Closing remarks: The Athlete’s requests for relief and the inherent limits of arbitration in similar cases

It is interesting to note that the Athlete did not appeal to the CAS against a decision finding her ineligible to compete based on the concrete application of the DSD Regulations. She rather filed a claim with the CAS attacking the legality of the DSD Regulations– for all the reasons mentioned in the CAS award and the SFT judgment.

This resulted in the CAS Panel finding – and the SFT confirming - that the DSD Regulations could not be invalidated as such but left the door open for future challenges: the DSD Regulations may prove disproportionate in their application, if e.g. it should prove impossible to apply them, in case of a specific athlete subject to the DSD Regulations where their application proves impossible or disproportionate (see the Semenya Judgment, at 9.8.3.5).

The Athlete would thus – theoretically – be able to file a new case with the CAS, once the DSD Regulations were implemented and following a potential decision on ineligibility. This shows the difficulty in directly challenging a set of regulations in cases where the hearing authority considers that it is rather their application in a concrete case that may give rise to a specific violation of athletes’ rights. The CAS panel, as an arbitral tribunal, is inherently limited by the scope of the appeal, which in the present case was Caster Semenya’s claim to have the DSD Regulations declared invalid as such.

[1] For an insightful overview of the facts behind the judgment and the findings of the SFT, see Marjolaine Viret, Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision – in the Asser International Sports Law Blog of 9 September 2020.

Editor's note: Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne

1.     Caster Semenya appealed to the Swiss Federal Court (SFT) arguing that World Athletics’ regulations violated human rights principles relating to gender discrimination and human dignity. The Swiss Federal Tribunal (as at CAS) held that World Athletics’ regulations may prima facie breach such human rights principles but were “necessary, reasonable and proportionate” to maintain fairness in women's athletics;

2.     Although in part addressed at the SFT, expect further legal argument on this in the domestic courts of South Africa or at the ECtHR, and in the following ways:

• Necessity - is the athletic advantage that Caster Semenya has of such a scientifically-measurable extent that it is necessary for World Athletics to intervene in such an invasive manner? In a broader ethical sense, is the incidence of what the World Athletics’ regulations call “difference of sex development” of such prevalence in the general population, and specifically in middle-distance athletics, that, by way of the principle of “sporting beneficence”, intervention is justified. Or, in contrast, is the incidence of DSD not at a level which justifies a departure from the ethical principle of primum non nocere – first, do no harm?

• Reasonableness - if World Athletics’ regulations are necessary, is the manner of implementation reasonable and in line with the principle of human and bodily integrity? In answering such a question, the focus must be on the fact that in order to continue to compete in her favourite events (such as the 800 metres) Caster Semenya will have to lower her testosterone level through medication;

• Proportionate - if World Athletics’ regulations are necessary and reasonable is the manner of implementation proportionate? In answering such a question, the focus must be on whether the regulations disproportionately discriminate against a certain, limited group of athletes in a certain, limited number of events and in a certain, limited manner.

3.     Overall, in assessing whether the qualification of a human right (e.g. freedom of expression) can be justified, the usual issue for a court is that that human right is competing against or in conflict with another human right or issue of public importance (in the instance of free expression, that competing issue might be one of public order or health, for example). The fundamental issue in the Caster Semenya proceedings seems to be whether the qualification of anti-discrimination principles can be justified, not on grounds such as, in the absence of such regulation, other athletes might be endangered in competing against Caster Semenya; but rather and simply that without intervention, it is unfair, in the sporting sense, on other athletes to compete against Caster Semenya. Is a purely sporting right (a level playing field) sufficient of itself to justify a derogation from a fundamental principle of human rights or is that derogation something that can reasonably be reserved to a sporting body on the grounds of fair competition for all?

4.     In sum, both CAS and now the SFT, have said that World Athletics has justified the deviation from human rights law because (a) it is necessary, as premised on a scientifically measurable, sporting disadvantage and (b) the resulting regulations have been drafted/implemented in a reasonable/proportionate manner.

5.     A key legal issue in the future is how the CAS’s award and the SFT’s judgment can be reconciled with the opinion of the United Nations High Commissioner for Human Rights in a report presented recently to the 44th session of the Human Rights Council (15 June to 3 July 2020) on the “Intersection of race and gender discrimination in sport”. In that report, the UN High Commissioner for Human Rights elaborated on relevant international human rights norms and standards and the corresponding obligations of States and the responsibilities of sporting bodies towards women and girl athletes. In doing so, the report identified possible gaps in the protection of the human rights of women and girls in sports and including the manner in which sport resolves disputes with a significant human rights element to them.

6.     At paragraph 53 of the report, the UN High Commission for Human Rights concluded pertinently:

“In addition, regulations regarding female eligibility to compete in sport raise concerns about the ability of all athletes to enjoy their rights. Private sports bodies and their rules and regulations dominate the current global and corporatized structure of sport governance. Concerns have been raised in this context indicating that women and girl athletes may face serious obstacles to accessing effective remedies and seeking full redress for violations of their human rights. In accordance with their obligations under international human rights law, States should ensure that non-State actors, including sport governing bodies, respect human rights in their own regulatory regimes and are accountable for breaches.”

7.     It is also of note that prior to the SFT judgment and with implied reference to the Semenya award at CAS, the UN High Commissioner for Human Rights noted the following two points (at paragraph 47). First, the process under Swiss law of appealing a CAS award to the SFT includes an appeal premised on public policy ground of prohibition from discriminatory measures -  A. v. Z., FIFA and X., Case No. 4A_304/2013, judgment of 3 March 2014, sect. 5.1. Second, the Commissioner noted that:

“Other national courts may also refuse to recognize and enforce an arbitral award if doing so would be contrary to the public policy of that State, which may include certain fundamental human rights.”

8.     In this, the UN High Commissioner relied on article V (2) (b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Commission did admit however that such a decision by a state (e.g., if South Africa refused to recognised the CAS award in the Semenya case) would be “jurisdictionally limited, as it would not be capable of suspending the regulations of a sport governing body [World Athletics] worldwide.”

9.     With regard to World Athletics’ regulations, World Athletics itself appear to recognise the dynamic, living nature of the research and policy objectives that underpin the regulations. It follows that where new evidence is presented (on, for example, the scientific foundations of the regulations or their manner of implementation or impact on athletes) the necessity, reasonable and proportionality of the regulations can and ought to be reassessed.

10.  Finally, the proceedings as whole might suggest that where an analogous human rights related case arises again (and not just in athletics) an athlete may resile from having it resolved at CAS, arguing, in the language of human rights law, that CAS does not provide an “effective remedy”.  But the focus on CAS is somewhat misplaced. CAS’s jurisdiction is founded in, granted to it by and largely constricted to the interpretation of the regulations of the referring sports body – in this case World Athletics. Although of little consolation to the athlete herself, the key legal lesson from the Caster Semenya proceedings – which appear far from over -  may be that the campaign to embed human rights principles in the regulations of sports bodies must continue apace and where sport bodies agree to comply with such principles, human rights norms should permeate not just their regulatory activities but should also enable athletes to rely on any and all aspects of human rights law up to and including seeking effective remedy at CAS.  

The Asser International Sports Law Centre in collaboration with Dr Marjolaine Viret is launching a new series of zoom webinars on transnational sports law: Zoom In. The first discussion (4 December at 16.00) will zoom in on the recent arbitral award delivered by the Court of Arbitration for Sport (CAS) in the Blake Leeper v. International Association of Athletics Federations (IAAF) case.

In this decision, reminiscent of the famous Pistorius award rendered a decade ago, the CAS panel ruled on the validity of an IAAF rule that places the burden on a disabled athlete to prove that a mechanical aid used to compete in IAAF-sanctioned competitions does not give them an overall competitive advantage. While siding with the athlete, Blake Leeper, on the burden of proof, the CAS panel did conclude that Leeper’s prosthesis provided him an undue advantage over other athletes and hence that the IAAF could bar him from competing in its events.

To reflect on the key aspects of the decision and its implications, we have invited scholars with different disciplinary backgrounds to join the zoom discussion. 

Confirmed guests

• Prof. Christophe Lazaro (UC Louvain)
• Prof. Wolfgang Potthast (University of Cologne)

 Moderators

• Dr Antoine Duval (Asser Institute)
• Dr Marjolaine Viret
  

The webinar is freely available, but registration here is necessary.

I have just released on SSRN four of my most recent articles on Lex Sportiva/Transnational Sports Law. The articles are available open access in their final draft forms, the final published version might differ slightly depending on the feedback of the editors. If you wish to cite those articles I (obviously) recommend using the published version.

I hope they will trigger your attention and I look forward to any feedback you may have!

Antoine

• Transnational Sports Law: The Living Lex Sportiva - Forthcoming in P. Zumbansen (ed.), ’Oxford Handbook of Transnational Law’, Oxford University Press (2020).
  

Abstract: This chapter focuses on the emergence of a transnational sports law, also known as lex sportiva, ruling international sports. In the transnational law literature, the lex sportiva is often referred to as a key example or case study, but rarely studied in practice. Yet, it constitutes an important playground for transnational legal research and practice, and this chapter aims to show why. The focus of the chapter will first be on the rules of the lex sportiva. Law, even in its transnational form, is still very much connected to written rules against which a specific behaviour or action is measured as legal or illegal. As will be shown, this is also true of the lex sportiva, which is structured around an ensemble of rules produced through a variety of law-making procedures located within different institutions. The second section of this chapter will aim to look beyond the lex sportiva in books to narrate the lex sportiva in action. It asks, what are the institutional mechanisms used to concretize the lex sportiva in a particular context? The aim will be to go beyond the rules in order to identify the processes and institutions making the lex sportiva in its daily practice. Finally, the enmeshment of the lex sportiva with state-based laws and institutions is highlighted. While the lex sportiva is often presented as an autonomous transnational legal construct detached from territorialized legal and political contexts, it is shown that in practice it operates in intimate connection with them. Hence, its transnational operation is much less characterized by full autonomy than assemblage.

• Seamstress of Transnational Law: How the Court of Arbitration for Sport Weaves the Lex Sportiva - Forthcoming in N. Krisch (ed.) ‘Entangled Legalities’, Cambridge University Press (2020).

Abstract: This chapter aims to show that the work of the Court of Arbitration for Sport (‘CAS’), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports governing bodies (‘SGBs’), govern international sports. It is argued that, instead of purity and autonomy, the CAS’ judicial practice is best characterised by assemblage and hybridity. This argument will be supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights (‘ECHR’), within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterising contemporary legal practice.

• Time to Go Public? The Need for Transparency at the Court of Arbitration for Sport - A. Duval & A. Rigozzi (eds), Yearbook of International Sports Arbitration 2017, T.M.C. Asser Press, Springer (2019).

Abstract: Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6(1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.

• Offside? Challenging the Transnational Legality of Israeli Football Activities in the Occupied Palestinian Territories - A.Duval & E. Kassoti (eds.), ‘The Legality of Economic Activities in Occupied Territories: International, EU Law and Business and Human Rights Perspectives’, Routledge (2020).

Abstract: In 1998 the FIFA welcomed the Palestinian Football Association as part of its members - allegedly, as an attempt by then FIFA President, the Brazilian João Havelange, to showcase football as an instrument of peace between Israeli and Palestinians. Ironically, almost 20 years after Palestine’s anointment into the FIFA family, instead of peace it is the conflict between Israeli and Palestinians that moved to FIFA. In recent years the Palestinian Football Association (PFA) and the Israeli Football Association (IFA) have been at loggerheads inside FIFA over the fate - I will refer to it as the transnational legality – of five (and then six) football clubs affiliated to the IFA which are physically located in the Israeli settlements in the Occupied Palestinian Territories (OPT). This chapter chronicles the legal intricacies of this conflict, which will serve as a backdrop to discuss arguments raised regarding the legality of business activities of corporations connected to the Israeli settlements. Indeed, as will be shown in the first part of this chapter, the discussion on the legality of economic activities in the OPT has recently taken a business and human rights turn involving systematic targeting of corporations by activists. Interestingly, we will see that this business and human rights turn also played a role in the conflict between the IFA and the PFA. This case study is therefore an opportunity to examine how the strategy of naming and shaming private corporations, and in our case not-for-profit associations, for their direct or indirect business involvement in the settlements has fared. It is also an occasion to critically assess the strength of the human rights ‘punch’ added to the lex sportiva, by the UNGPs.

On 23 October 2020, a panel of the Court of Arbitration for Sport (‘CAS’) rendered an award in the matter opposing Mr Blake Leeper (‘Mr Leeper’ or ‘the Athlete’) to the International Association of Athletics Federation (‘IAAF’).[1] The CAS panel was asked to make a ruling on the validity of the IAAF rule that places on a disabled athlete the burden to prove that a mechanical aid used to compete in IAAF-sanctioned competitions does not give such athlete an overall competitive advantage.

The award is remarkable in that it declared the shift of the burden of proof on the athlete invalid, and reworded the rule so that the burden is shifted back on the IAAF to show the existence of a competitive advantage. Thus, while the IAAF won its case against Blake Leeper as the panel found that the sport governing body had discharged its burden in casu, the outcome can be viewed as a victory for disabled athletes looking to participate in IAAF-sanctioned events. It remains to be seen how this victory will play out in practice. Beyond the immediate issue at stake, the case further presents an illustration of how – all things equal – assigning the burden of proof can be decisive for the real-life impact of a policy involving complex scientific matters, as much as the actual legal prerequisites of the underlying rules.

This article focuses on some key aspects of the award that relate to proof issues in the context of assessing competitive advantage. Specifically, the article seeks to provide some food for thought regarding burden and degree of proof of an overall advantage, the contours of the test of ‘overall advantage’ designed by the CAS panel and its possible bearing in practice, and potential impact of the ruling on other areas of sports regulations such as anti-doping.

The award also analyses broader questions regarding the prohibition of discrimination in the regulation of sports, as well as the interplay with international human rights instruments such as the European Convention on Human Rights (‘ECHR’), which are not explored in depth here.

1. Some background: from Pistorius to Leeper

In 2008 already, a CAS panel was asked to look into the requirements for participation of disabled athletes using mechanical aids in IAAF-sanctioned events. Oskar Pistorius, a bilateral amputee and track runner using a carbon fibre prosthesis, claimed the right to compete in IAAF track events along ‘able-bodied’ athletes. The IAAF refused his participation, relying on a newly introduced rule prohibiting use of technical devices that give an athlete an advantage over other competitors, more specifically:

“Use of any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device” (IAAF Competition Rule 144.2(e), at the time).[2]

As a result, Oskar Pistorius brought the matter before CAS. Though the rule contained no explicit allocation of the burden of proof, it was common ground among the parties that the burden of proof was on the IAAF to prove the existence of an ‘advantage’.[3] As regards the standard of proof, the CAS panel determined that it would apply the ‘balance of probabilities’ standard, since it did not regard the issue as a disciplinary one that would mandate a higher standard, such as ‘comfortable satisfaction’.[4] Though Pistorius underwent a series of performance tests supervised by the Sports University in Cologne, Germany, the CAS panel deemed the scientific evidence produced inconclusive. Specifically, to the panel, the evidence did not allow for a sufficiently robust conclusion that Pistorius enjoyed an overall net advantage over able-bodied competitors. Thus, Pistorius should not be prevented from competing at IAAF-sanctioned events.

Shortly after the Pistorius award, the IAAF amended its Competition Rules with a view to having the burden of proof shifted to the athlete claiming the right to compete with mechanical aids. Since then, the rule – in its version still applicable in the Leeper matter (the rule is enshrined today in the World Athletics Technical Rules, Rule 6.3.4) – has provided that receiving assistance during an event is not allowed, including:

“The use of any mechanical aid, unless the athlete can establish on the balance of probabilities that the use of an aid would not provide him with an overall competitive advantage over an athlete not using such aid” (Rule 144.3(d); emphasis added).

That shift of burden quickly showed very tangible effects. In 2016, Markus Rehm, a German long jumper and single-leg amputee, using the same type of prosthesis, set out on an attempt to achieve qualification for the Rio Olympic Games. Studies were again conducted at the Sports University in Cologne that had already produced the expert report for Oskar Pistorius. The research conclusions were that it was impossible to tell with certainty whether the prosthesis conferred Markus Rehm an overall advantage in long jump. However, due to the regulatory amendment, this inconclusiveness now weighed against the athlete. After an IAAF June 2016 meeting in which no vote was finally declared on the issue, IAAF President Sebastian Coe commented: “Rehm still has to prove that the prosthetic doesn’t give him an unfair advantage and he has not been able to show that”.

To the best of the author’s knowledge, Markus Rehm never took formal legal action against the sports authorities and finally renounced seeking a selection to the Rio Olympic Games. The discussion announced in Summer 2016 with the IAAF never appears to have produced outcomes either, so that the new version of the rules and its effects had not been subject to the scrutiny of a judicial body so far.

More than ten years after Oskar Pistorius obtained the right to compete under the former IAAF rules, Blake Leeper – a bilateral amputee track runner specialising in the 400m - applied in July 2019 to the IAAF for a ruling that the prothesis he uses in pursuit of his qualification for the 2020 Olympic Games is allowable under IAAF Rule 144.3(d).[5] In February 2019, after various exchanges between the parties and upon Mr Leeper submitting the results of various tests, the IAAF denied his application.[6] Mr Leeper appealed the IAAF decision to the CAS.

2.     The reasoning of the CAS panel in the Blake Leeper award

In its analysis of Blake Leeper’s case, the CAS panel proceeded in three steps:

• i.) determining the proper construction of IAAF Rule 144.3(d);
• ii.) assessing validity and lawfulness of the provision that imposes the burden on the athlete to establish absence of an overall competitive advantage; and
• iii.) considering the findings on the previous points, deciding whether Mr Leeper should in casu be entitled to compete at IAAF-sanctioned events using his prosthesis.[7]

In short, after defining an appropriate ‘test’ for presence (or absence) of an overall competitive advantage, the CAS panel found that it was not admissible for the rule to place on the athlete the burden to establish the factual prerequisites for such test. The CAS panel then reworded the rule by ‘deleting’ the parts related to the burden of proof, thus in effect shifting back the burden to the IAAF as per the former version of the rule applicable in the Pistorius matter. Nevertheless, considering the evidence on the record, the CAS panel found that in the particular matter the IAAF had met such burden, so that Mr Leeper could not be allowed to compete at IAAF-sanctioned events with his current prostheses.

The main legal issue at stake in the award was the validity of a provision that places the burden on the athlete to establish an absence of overall advantage achieved through the use of a mechanical aid.

The award contains some noteworthy reasoning regarding the parties’ respective burden of proof with respect to the general validity of rules enshrined in sports regulations. The CAS panel proceeded along the lines adopted in previous cases in which a discrimination was invoked: referring explicitly to the proceedings involving Dutee Chand and Semenya Caster,[8] the panel described the analysis as a two-step one:

• i.) “the party seeking to challenge an allegedly discriminatory regulation bears the burden of the establishing that the rule discriminates on the basis of a protected ground”;
• ii.) if so: “the burden of proof shifted to the IAAF to establish that the regulation was necessary, reasonable and proportionate”.[9]

Regarding the rule at stake, the panel found that, while “neutral on its face (in the sense that it applies to all athletes equally and irrespective of any disability), the practical effect of the Rules is likely to be significantly greater for disabled athletes than able-bodied athletes.”[10] Thus, the rule was characterised as “indirectly discriminatory”,[11] so that the panel proceeded to assess whether the IAAF had demonstrated that the provision on the burden of proof pursues a legitimate objective and is proportionate. Turning to this central issue, the CAS panels analysed the following elements:

In a first step, the CAS panel supported the argument whereby

“an international sports governing body such as the IAAF is legitimately entitled to take the view that fairness requires that the outcome of competitive athletics should be determined by natural physical talent, training and effort, and that athletes should not  be able to use artificial technology during competitions in a way that provides them with an overall advantage over athletes who are not using such technology. The Panel considers that this is particularly so where (as here) the mechanical aid is one that most athletes would not, in practice, be able to utilise” (emphasis added).[12]

On the other hand, the panel declared itself mindful that disabled athlete such as Blake Leeper would be “unable to participate at all in IAAF-sanctioned events in circumstances that would enable their results to be ranked alongside their fellow able-bodied competitors. A rule which was specifically designed to prevent disabled athletes from competing in IAAF-sanctioned events could not be said to pursue a legitimate interest” (emphasis in the award).

While deploring that the IAAF seemed to have given little weight to facilitating participation of disabled athletes (“it is apparent to the Panel that the rights and legitimate interests of disabled athletes were, at best, a secondary consideration in the IAAF’s regulatory decision-making”),[13] the arbitrators declared themselves nevertheless satisfied on balance that the rule was intended to pursue the legitimate objective of ensuring the fairness and integrity of competitive athletics.

On the issue of proportionality, the panel started by acknowledging that there is a potential at least that prosthetic aid could enable disabled athletes to run faster than if they had fully intact biological legs. The panel then reviewed the arguments specifically put forward by the IAAF:

• i.) The first principled argument was that an exception to the ‘normal’ eligibility requirements justifies placing a burden on athletes to establish “granting the exception sought will not undermine the objectives on which that rules is based”.[14] The CAS panel refused the analogy claimed by the IAAF to the ‘precautionary principle’, but accepted that there was a valid analogy to some extent to the TUE regime, with the reservation that TUE regulations were not designed specifically with disabled athletes in mind, and thus there was nothing to suggest that the TUE regulations have any disparate impact upon disabled athletes;
• ii.) The second argument, of a practical nature, was that athletes are in a better position to provide the evidence regarding any advantages and disadvantages they derive from the use of the mechanical aid. The panel did not consider this argument “a particularly persuasive reason”,[15] given that the IAAF could obtain at least evidence regarding performance in competitive races, and an athlete who would refuse without justification to give data to the IAAF could see adverse inferences drawn against him or her.

The panel continued that there were, on the other hand, a number of factors pleading against the burden of proof provision being a proportionate solution; most notably, the “onerous practical burden” that the rule imposes upon disabled athletes:

“Such an individual is required, in effect, to prove a negative: namely, that they derive no overall competitive advantage from having prosthetic rather than biological limbs. As the materials presented by the parties in this appeal amply demonstrates, the factual and scientific enquiries necessarily entailed by that requirement are multifaceted and complex”.[16]

In addition, the CAS panel emphasised that the IAAF failed to provide for a “clear, accessible and structured process that must be followed” by the disabled athletes to obtain a determination on their participation.[17] Finally, the panel considered that “when dealing with a rule that has a substantial disparate impact on disabled athletes, it is neither necessary nor proportionate for any doubt to be resolved against the disabled athlete”.[18]

Based on the reasons stated above, the panel concluded that the rule was to be declared unlawful and invalid with respect to its allocation of the burden of proof. As a result, the CAS panel declared the part-provision of the rule related to the burden of proof to be “deemed deleted”,[19] rewording the rule as unauthorised assistance including

“The use of any mechanical aid, unless [text deleted] on the balance of probabilities [text deleted] the use of an aid would not provide them with an overall competitive advantage over an athlete not using such an aid”.[20]

While this article does not further elaborate on the discrimination question, it is noteworthy that back in 2008, the panel in the Oskar Pistorius matter dismissed the athlete’s argument of unlawful discrimination after a summary assessment, based on the fact that: “disability laws only require that an athlete such as Mr Pistorius be permitted to compete on the same footing as others”, adding that the issue before the panel was precisely to decide whether the athlete was competing on an equal basis using his prostheses.[21] The panel in Pistorius thus focused almost entirely on whether Pistorius, in casu, met the requirements set up by the rule in place, without questioning the rule itself. The fact that a legal submission which could be dismissed in a few paragraphs as barely relevant in 2008 was considered worthy of an in-depth discussion spanning several pages in 2020 does point to a heightened awareness of issues of discrimination and willingness of CAS panels to deal with these issues, which represents an encouraging signal for the sports community and advocates of human rights in sports.

3.     Defining the proper test for an ‘overall advantage’

The panel spent considerable time on the interpretation of IAAF Rule 144.3, pondering on the appropriate test for evaluating an overall performance advantage, especially ‘who’ and ‘what’ to use as a comparator for the athlete’s performance. The panel considered that this determination must be guided by the “overarching object and purpose of the Rule, and by the need to ensure that the Rule is not interpreted in a way that gives rise to consequences which are absurd or unworkable”.[22]

The panel thus stressed that it would lead to absurd results to use as a comparator either only the very best abled-bodied athletes in the world, or the disabled athlete himself without his mechanical aids. It would be equally unworkable, according to the panel, to look at the likely performance of a different (real or hypothetical) able-bodied athlete, “unless there was a principled, objective and consistent basis for determining the identity/attributes of that able-bodied comparator”.[23]

Having considered and rejected other constructions, the CAS panel concluded that

“The only logical, principled and workable construction of the Rule is one that, in the case of disabled athletes who use a mechanical aid to overcome a disability, requires a comparison to be undertaken between the athlete’s likely athletic performance when using the mechanical aid and their likely athletic performance had they not had the disability which necessitates the use of that aid”.[24]

“A disabled athlete who uses a mechanical aid which does no more than offset the disadvantage caused by their disability cannot be said to have an “overall competitive advantage” over a non-disabled athlete who is not using such an aid”.[25]

The test thus differs from the one conducted by the CAS panel in the Pistorius matter, that sought to identify whether the device gave Oskar Pistorius an advantage “over other athlete not using the device”.[26] In the case of Pistorius, actual comparative tests had been performed by Cologne using a control group of able-bodied athletes, and in fact the wording of the rule at the time explicitly referred to comparison to “another athlete not using such a device” (emphasis added, see Section 2 above). These selection of this control group was not assessed in detail in the Pistorius award, possibly because the panel found that the scientific experts had not been asked by the IAAF to assess the relevant question, i.e. whether the athlete enjoyed an ‘overall net advantage’ – including all advantage and disadvantages – over able-bodied athletes.

Though possibly the most ‘pragmatic’ interpretation of the rule and one adapted to the specificities of the case, the construction chosen by the panel in the Leeper award creates a standard for mechanical aids that is very focused on the situation of disabled athletes, and which will have to be further exemplified and circumscribed in future. The panel did insist that there is an “obvious desirability of a rule that is specifically tailored to the use of prosthetic aids by athletes”,[27] and criticized the IAAF’s choice “to shoehorn such athletes into a wider rule concerned with the use of mechanical aids in general”.[28] In a press release following the award, the IAAF (newly, World Athletics) took note of the panel’s findings and announced that it will work on reviewing its rules.

In fact, a redrafting would be desirable just from a perspective of legal predictability and regulatory technique. The rule as reworded through deletion by the CAS panel remains unsatisfactory in its design: the rule sets positive prerequisites (‘use of a mechanical aid’), and a negative prerequisite (‘unless no overall competitive advantage exists’). Negative prerequisites of this kind are generally interpreted as signifying an exception to the general rule, meaning that the burden of proof is on the party seeking to claim the benefit of such exception.[29] A good illustration is the way CAS panels have placed the burden on the athlete to show ‘compelling justification’ for refusing to submit to testing in anti-doping matters, even in the absence of an explicit attribution of burden of proof, simply based on the rule’s structure.[30] Redrafting the rule in such manner that its construction positively shows that the burden is on the sports governing body to show the presence of an overall advantage would almost inevitably suppose a separate rule to be created for mechanical aid used by disabled athletes.

Another difficulty is that the test as designed by the CAS panel results in a comparison that is in essence hypothetical – if not metaphysical –, and may thus prove difficult to translate into scientific terms amenable to testing: unlike studies that can actually measure performance against other ‘real’ competitors, there is no straightforward empirical way to compare an athlete with his fictional able-bodied ‘self’. In fact, in the case of Blake Leeper, the analysis conducted proved a largely non-empirical one and was facilitated by the panel choosing a single criterion (i.e. running height) that required no empirical assessment of performance on the track (see Section 5 below).

Beyond the technical issues above, it is hard to imagine how the test proposed by the CAS panel could find application to other instances of mechanical aids. ‘Disadvantages’ that originate in natural physical traits are commonplace among athletes (some may be at a natural disadvantage due to their smaller-than-average size, due to their body proportions, due to their muscle fibres or cardiovascular characteristics, etc.). It would seem unimaginable that mechanical aids be in future declared admissible as long as they just compensate such physical ‘disadvantage’ that an athlete would have compared to an average opponent.

The CAS panel in the Pistorius matter had insisted that “disability laws only require that an athlete such as Mr Pistorius be permitted to compete on the same footing as others”.[31] One may wonder whether the panel in Leeper did not implicitly go a step beyond that objective: insofar as it defines the same (fictional) athlete himself, without the disadvantage derived from his disability, as the upper benchmark to limit performance enhancement through mechanical aid, the panel’s reasoning amounts to creating a right to compensate for natural disadvantages that able-bodied athletes do not enjoy.

This position presupposes in addition the existence of a difference of nature between a normal ‘below average’ athlete on the one hand, and an athlete with a disability or other physical condition, on the other hand. In this respect also, the scope of the panel’s ruling would have to be better defined. In particular, the panel never went into the category of the ‘disabled athlete’ who should benefit from the right to offset their disadvantage in comparison to their hypothetical able-bodied self. Should only athletes who fulfil the conditions of an ‘Eligible Impairment’ for purposes of participation in Paralympic sports – including Paralympic Athletics – be authorised to compensate their disadvantage? Should certain other, non-eligible impairments and medical conditions also qualify, and according to what criteria? There will inevitably be value judgements involved in distinguishing between a disadvantage that represents a genuine disability creating a right to compensation, versus a disadvantage that results merely in a sub-standard physical ability that is part of an individual’s characteristics and which simply makes the athlete ill-suited for (specific) sports.

4.     Expectations on the scientific evidence to assess the overall advantage

Various arguments discussed by the panel demonstrate sympathy for disabled athletes, including recognition of the insurmountable hurdle that a burden of proof on scientific issues may constitute for such athletes. The panel took the view that an athlete could not be reasonably expected to carry such a heavy burden. These expressions of sympathy could be of relevance for cases in other areas of sports regulations, highlighted in Section 6 below.

Predictably, in all but the exceptional case, the outcome of studies would result in an inconclusive state of evidence. In this constellation, the burden of proof becomes the main – if not the sole – determinant of the outcome: it decides which party carries the risk of scientific uncertainty. In certain situations, what is formally a rebuttable presumption may thus turn de facto into an irrebuttable one.[32]

As mentioned (see Section 2 above), in both the case of Oskar Pistorius and Markus Rehm, studies of the athlete’s performances did not allow for a clear-cut conclusion. The two cases were fairly similar in terms of scientific assessment. The difference was a purely legal one, namely: under the new version of the rule enacted by the IAAF and applied to Markus Rehm, an inconclusive state of scientific evidence had to lead to decide against the athlete’s participation.[33]

In the matter of Blake Leeper, the panel reversed the effects of the amendment made by the IAAF after the Pistorius award: this means that disabled athlete are now admitted to participate in IAAF-sanctioned events with mechanical aids, in all but the exceptional situation in which the scientific evidence could clearly show an overall advantage.

The perhaps most surprising element of the case is that the Leeper matter turned out to be one of these ‘exceptional’ cases, and the manner in which the CAS panel reached its conclusion. When applying the test to Blake Leeper, the evidentiary burden on the IAAF indeed appeared much lighter than what the panel described as the enquiries that athletes would have to conduct in order to even stand a chance of discharging their burden.

When weighing in on the heaviness of the burden for athletes, the CAS panel had stressed that assessing whether a mechanical aid confers an overall competitive advantage would suppose “obtaining, analysing and presenting […] complex scientific data”, which “is likely to be challenging, expensive and time consuming”.[34]

The arbitrators listed a number of enquiries that such a determination would entail:

“it will typically be necessary to obtain, analyse and present detailed and highly technical scientific evidence concerning metrics such as the biomechanics, acceleration, maximum velocity, sprint endurance, curve-running, running economy and aerobic capacity (and, potentially, other metrics too). It will also be necessary to establish (insofar as this is scientifically possible) how each of those metrics would differ if the individual in question had biological legs rather than prosthetic limbs, and how those actual and hypothetical metrics compare to the other able-bodied athletes who compete in the same event”.[35]

Admittedly, the assessment was facilitated by the fact that Blake Leeper had actually undergone a series of tests as part of his seeking to discharge his burden of proof, so that the IAAF had the benefit of the resulting data. The arbitrators themselves noted that it would be rather unusual for a party to be able to discharge a burden of proof without having proactively submitted any scientific evidence of their own.[36]  Upon closer scrutiny, however, the results of these tests do not even appear to have been decisive for the panel’s ruling. Ultimately, the assessment was reduced to one single question, with two sub-questions: i.) does Mr Leeper run ‘unnaturally tall’ on his prosthesis, and ii.) does this give him any performance advantage?

The first question was resolved through the so-called MASH (‘Maximum Allowable Standing Height’) rule: a formula applied in Paralympic competitions which allows for an estimation of the maximum height that a Paralympic runner is allowed to run at on his prostheses in the context of Paralympic sports.[37] Blake Leeper’s prostheses placed him well above (i.e. by 15cm) the MASH height so determined. The panel treated this as indication that Leeper runs at a height substantially taller “than his height if he had intact biological legs, with a generous margin of appreciation for the diverse shapes and sizes of the human body”.[38] The second question was equally resolved by general biomechanical considerations: the panel found that the empirical evidence produced by the athlete was inconclusive on this point, and the panel was willing to follow the IAAF’s experts that “there is a direct relationship between leg length and running speed”.[39]

Thus, using two simple mathematical formulas and without truly exploiting the results of the tests conducted on Leeper, the panel was able to conclude that:

“by virtue of the fact that he uses RSPs that enable him to run at a height that is several inches taller than his maximum possible height if he had intact biological legs, Mr Leeper is able to run the 400m event in a time that is several seconds faster than the fastest time he would have been able to achieve with intact biological legs”.[40]

In effect, the CAS panel was thus able to bypass almost entirely the findings of the studies conducted by and on the athlete – after brushing aside the peer-reviewed study on the record – to focus exclusively on the opinion of the IAAF experts rooted in the general biomechanics of running. It is unlikely that a CAS panel would easily be able to reproduce that straightforward a benchmark in future cases with different disabilities. Also, it could prove important to monitor in practice what expectations panels will put on the IAAF in individual cases, and what expectations it will place on athletes in terms of duty to cooperate to the evidentiary process, to ensure that the allocation of the burden of proof will not be undermined by its application in practice.

5.     Impact of the award beyond mechanical aid

A shift in the burden of proof is a common tool used in sports regulations for issues that require complex scientific proof: for example, when a CAS panel in the Veerpalu v. FIS matter determined that it was upon the anti-doping organisation to establish the validity of its analytical methods and decision limits used, the prompt reaction in the review process of the World Anti-Doping Code (‘WADA Code’) ongoing at the time was to introduce a provision shifting that burden to the athlete (Article 3.2.1 WADA Code).[41] Other well-known reversals of this kind in anti-doping matters include establishing a departure from applicable testing or analytical procedures (Article 3.2.2/3.2.3 WADA Code), or the presumption resulting from the report of an adverse analytical finding, which requires the athlete to adduce evidence regarding the manner in which a prohibited substance came to enter his or her body in order to establish absence of or low fault. [42]

The parallels are even more striking with the WADA system for obtaining Therapeutic Use Exemptions (‘TUE’). The WADA International Standard for Therapeutic Use Exemptions (‘ISTUE’) provide that athletes have to establish the requirements for obtaining a TUE, by a balance of probabilities, one of these requirements being:

“The Therapeutic Use of the Prohibited Substance or Prohibited Method is highly unlikely to produce any additional enhancement of performance beyond what might be anticipated by a return to the Athlete’s normal state of health following the treatment of the acute or chronic medical condition” (ISTUE 4.1(b)).

In the Leeper matter, the panel accepted that there was a “certain analogy to be drawn” with TUE regulations. However, the panel appeared to consider that there was nevertheless a material difference between the situation of disabled athlete using mechanical aids and athlete requiring a TUE:

“the regulations governing TUEs were not specifically enacted with disabled athletes in mind. Unlike the Rule under consideration here, there is nothing to suggest that the TUE regulations have any disparate impact upon disabled athletes”.[43]

Assuming there was an intent on part of the panel to practice distinguishing here, the rationale for such distinguishing remains obscure. It suggests that athletes suffering from permanent health conditions would be somehow less worthy of legal protection than disabled athletes, or better harmed with financial and expert resources. Whether disabled athletes are affected specifically by the TUE regulations, or other athletes with acute or chronic health conditions, does not seem to bear any relevance for the impact of such a regulation on the affected athletes, and hence, for the proportionality of the burden of proof.

On the contrary, the principled and practical rationale that led the panel to find a lack of realistic prospects for athletes to discharge that burden would apply equally in TUE cases. As highlighted in connection with the case ISSF v. WADA,[44] which concerned a young shooter who proved unable to establish that the medically necessary beta-blockers did not enhance her performances, this aspect of the TUE requirements raises considerable issues. First, it equally supposes proof of a negative, which ought to lead at least to the recognition of a situation of ‘evidence necessity’ (Beweisnotstand), similar to the one applied by the CAS panel in the WADA & UCI v Contador & RFEC matter, to ease the burden on the athlete. Second, establishing performance enhancement associated with use of a substance is an onerous and often impracticable task, and a burden that WADA itself refuses to carry, since the WADA Code claims that performance enhancing effects cannot be challenged in court. It has been repeatedly emphasised in WADA circles that proving performance enhancement would prove unethical and impractical in many cases.

Specifically, this extract from the Leeper award essentially describes the situation in which many athletes will find themselves when faced with anti-doping proceedings:

“many, if not most, disabled athletes in that position will not have immediate access to experts with the requisite expertise or to appropriate testing and research facilities that enable such data to be gathered for analysis. […] there is a significant risk that the financial cost of obtaining the relevant data and expert analysis will be prohibitive for many disabled athletes, and therefore they will be unable to attempt to meet the burden imposed by the Rule […]”.[45]

For many athletes, challenging the validity of an analytical method or decision limit, showing entitlement to a TUE, or even just demonstrating how a substance ended up in their sample in order to establish their absence of fault, will plainly never be a realistic option. As the panel stressed in the Leeper case, in certain situations both fairness and access to evidence could be adequately accounted for, on a case-by-case basis, by drawing adverse inferences against an athlete who would refuse to cooperate with anti-doping organisations without legitimate justification.

6. A Never Ending Story

The outcome of Blake Leeper’s battle, and the relative ease with which the CAS panel reached its decision considering the difficulty of its task, must be viewed as rooted in the circumstances of the case: a clear-cut case of an athlete with a disability (bilateral amputee), a fictional able-bodied counterpart that was relatively easy to imagine conceptually (the same individual with biological legs), and - probably also - an athlete who had chosen mechanical aids that made him taller than he would ever have been with biological limbs. One may wonder how the same assessment would concretise in other contexts and how broadly this case law would be transposable to other cases of mechanical aid, even involving other categories of disabled athletes. The award made thus be programmed to remain an outlier.

The panel was able to come up with a simple operational criterion, i.e. comparing the height of the athlete when on his prosthesis to his maximum natural height, and applying a proportionality relationship whereby the height at which the athlete runs conditions the length of his stride and thus his speed. In fact, to put it somewhat provocatively, following through on the solution used by the panel would render athletic competitions meaningless, as it would be sufficient to measure each athlete’s legs to predict the outcome of a race.

In a broader perspective, the ruling in the Blake Leeper matter no doubt represents a step toward inclusiveness of athletics and sports competitions in general. The CAS panel was adamant that sports governing bodies must not adopt rules that discriminate – directly or indirectly – against athletes with a disability, or at least not without very robust justification. The CAS panel also pulled the brakes on what has become common practice when sports governing bodies stumble on issues that may be affected by irreducible uncertainty in science, or that would require significant evidentiary efforts: transferring these efforts onto the athletes by attempting to shift the burden of proof in their rules. The paradox is that the arbitrators then appeared very generous in assessing in casu the scientific justification adduced by the IAAF to support its decision, in a way that did not correlate with the heaviness of the evidentiary burden from which the panel had just resolved to save the athlete.

Perhaps most importantly, the series of cases from Pistorius to Leeper highlights that the burden of proof is a policy choice first of all, if not exclusively. In situations that are characterized by scientific complexity and evidentiary conundrums, the burden of proof determines the outcome of individual cases as effectively as if the parties were confronted with an irrebuttable presumption or legal fiction. The burden of proof can thus be said to reflect the “institutional default” behind the regulator’s or (here) the arbitrators’ value framework.[46] This makes it all the more important that the administration of such burden of proof in practice is not dealt with too lightly by panels in individual matters.

In this regard, the series also forces us to recognise that there is no way a level playing field can be defined through science, or at least not through science alone. The outcome reached by the panel in Leeper is based on a moral choice of what a ‘fair’ competition should look like and on ideals of inclusiveness and non-discrimination. The IAAF and the panel in Leeper invoked repeatedly in the award as the rule’s legitimate aim that the outcomes of competitions be determined by “competitors’ natural talent, training and effort”, as opposed to aids that confer an “artificial” competitive advantage.[47] However, the solution reached by the CAS arbitrators cannot be reconciled with the legitimate aim they relied on, unless one considers that the disabled athlete’s ‘natural’ state is his hypothetical self without the disability. Unless one treats disability as unnatural, any mechanical aid used by a disabled athlete to allow him to complete a 400m is necessarily ‘artificial’ to use the language of the CAS. Here again, the panel’s reasoning – though based at first sight on the MASH formula and objective biomechanical principles – is in reality deeply entwined with what the panel envisioned as a ‘normal’ – perhaps rather than ‘natural’ – human body, thus arguably a normative rather than biological standard.

This means that it would be unreasonable to place all expectations on science to resolve the societal dilemmas that inclusiveness in sport creates. Instead, we are bound to continue to feel our way forward through all conflicting interests and values at stake, continuously renegotiating their respective importance. In fact, in its press release acknowledging the CAS award, the IAAF mentioned newly framed claims by Blake Leeper’s legal team that the MASH rule relies on ‘racist’ foundations. The IAAF stressed – almost preemptively – that there is no basis in evidence to challenge the rule, and certainly not to assume that the 15cm disparity in height could be due to “racial differences in body dimensions”. The new CAS precedent just established may thus prove vulnerable to challenges based on other discrimination grounds, which are likely to trigger equally intractable scientific questions.

As the panel in the case of Oskar Pistorius concluded, noting that the IAAF would have to assess each athlete’s situation in the future on a case-by-case basis: “However, if it does create an additional burden, it must be viewed as just one of the challenges of 21^st Century life”.[48] Apparently, the challenge has only just started.

[1] CAS 2020/A/6807, Leeper v. IAAF, 23 October 2020. The IAAF has been renamed World Athletics. However, since the award still uses the term ‘IAAF’, this article will also do so for convenience.

[2] CAS 2008/A/1480, Pistorius v IAAF, 16 May 2008, p. 3.

[3] CAS award Pistorius, para. 38.

[4] CAS award Pistorius, para. 39.

[5] CAS award Leeper, para. 5.

[6] CAS award Leeper, para. 6.

[7] CAS award Leeper, para. 291.

[8] In fact, this is not entirely accurate since in the Dutee Chand matter, the panel considered the burden of proof was on the athlete when it comes to the scientific validity of the regulation, and the athlete did not object to this burden. For an analysis, Viret M & Wisnosky E (2016), Comment of CAS 2014/A/3759, Chand v. AFI & IAAF, 24 July 2015, in (Duval & Rigozzi (eds.)), Yearbook of International Sports Arbitration, The Hague, 235-274.

[9] CAS award Leeper, para. 315.

[10] CAS award Leeper, para. 318.

[11] CAS award Leeper, para. 319.

[12] CAS award Leeper, para. 325.

[13] CAS award Leeper, para. 330.

[14] CAS award Leeper, para. 340.

[15] CAS award Leeper, para. 342.

[16] CAS award Leeper, para. 344.

[17] CAS award Leeper, para. 350.

[18] CAS award Leeper, para. 356.

[19] CAS award Leeper, para. 361.

[20] CAS award Leeper, para. 361.

[21] CAS award Pistorius, para. 29.

[22] CAS award Leeper, para. 306.

[23] CAS award Leeper, para. 309.

[24] CAS award Leeper, para. 88.

[25] CAS award Leeper, para. 310.

[26] CAS award Pistorius, para. 47.

[27] CAS award Leeper, para. 300.

[28] CAS award Leeper, para. 331.

[29] Viret M (2016), Evidence in Anti-Doping at the Intersection of Science and Law, The Hague, p. 78.

[30] CAS 2019/A/6148, WADA v. Sun Yang & FINA, para. 336.

[31] CAS award Pistorius, para. 29.

[32] Viret M (2016), Evidence in Anti-Doping at the Intersection of Science and Law, The Hague, p. 662.

[33] For a similar analysis, see Pielke R (2016), The Edge, Berkeley, pp 262-263.

[34] CAS award Leeper, para. 345.

[35] CAS award Leeper, para. 344.

[36] CAS award Leeper, para. 365.

[37] See for a discussion CAS award Leeper, para. 67 et seq.

[38] CAS award Leeper, para. 379.

[39] CAS award Leeper, para. 389.

[40] CAS award Leeper, para. 390.

[41] Viret M & Wisnosky E (2016), The Validity of Analytical Science in Anti-Doping – A Scientific and Legal Challenge, in (Duval & Rigozzi (eds.)), Yearbook of International Sports Arbitration, The Hague, 39-72, p. 50.

[42] Viret M (2016), Evidence in Anti-Doping at the Intersection of Science and Law, The Hague, p. 662.

[43] CAS award Leeper, para. 341.

[44] Rigozzi A/ Viret M/ Wisnosky E, The ISSF v. WADA CAS Award: Another Therapeutic Use Exemption Request for Beta Blockers Shot Down

[45] CAS award Leeper, para. 347.

[46] Pielke R, The Blade Runner and the Burden of Proof.

[47] CAS award Leeper, para. 332.

[48] CAS award Pistorius, para. 56.