This is a follow-up contribution to my previous blog on human rights implications of the Olympic Games published last week. Together with highlighting some of the most serious Olympic Games-related human rights abuses, the first part has outlined the key elements of the Host City Contract ('HCC') as one of the main legal instruments regulating the execution of the Olympic Games. It has also indicated that, in February 2017, the International Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights obligations. Without questioning the potential significance of inserting human rights obligations to the 2024 HCC, this second part will refer to a number of outstanding issues requiring clarification in order to ensure that these newly-added human rights obligations are translated from paper to actual practice.

Implementation of Agenda 2020 into the HCC 

In December 2014, the IOC Session unanimously approved Olympic Agenda 2020 ('Agenda 2020'), a set of 40 recommendations intended to protect the uniqueness of the Games and strengthen Olympic values in society. Agenda 2020 makes five specific recommendations with respect to the HCC which should have been taken into account as of the 2022 HCC concluded between the IOC on the one hand and the City of Beijing and the Chinese Olympic Committee on the other hand.[1]

Most importantly, Agenda 2020 encourages the IOC to include in the HCC clauses reflecting the prohibition of discrimination as well as the protection of environmental and labour-related rights.[2] Fundamental Principle 6 of the Olympic Charter, now also reflected in Article 13.2. (a) of the 2024 HCC, reads as follows: ''The enjoyment of the rights and freedoms set forth in this Olympic Charter shall be secured without discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status.'' Non-discrimination on the basis of sexual orientation had been absent from the Olympic Charter prior to Agenda 2020. As far as environmental and labour-related matters are concerned, the Host City, the Host National Olympic Committee ('Host NOC') and the Organising Committee of the Olympic Games ('OCOG') are obliged under the 2024 HCC to ''ensure that their activities in relation to the organisation of the Olympic Games comply with any international agreements, laws and regulations applicable in the Host Country, with regard to planning, construction, protection of the environment, health and safety, labour and working conditions and cultural heritage''.[3] For the first time, the 2024 HCC also makes a specific reference to the United Nations' Sustainable Development Goals.[4]

In addition to promoting non-discrimination, environmental protection and labour-related rights, Agenda 2020 also fosters transparency by demanding the IOC to: (i) make the HCC public; (ii) disclose details of the IOC's financial contribution to the OCOG; and (iii) provide the HCC at the outset of a bidding procedure.[5] Moreover, Agenda 2020 suggests that entities other than the Host City and the Host NOC may become signatories to the HCC in line with the local context.[6]

What exactly has been added to the 2024 HCC?

As indicated above, the prohibition of discrimination,[7] and to a certain extent also the protection of labour-related rights,[8] appeared for the first time in the 2022 HCC, reflecting the recommendations laid down in Agenda 2020.[9] Moving to the 2024 HCC, the core human rights provision inserted therein demands that the Host City, the Host NOC and the OCOG in their activities related to the execution of the Games ''protect and respect human rights and ensure any violation of human rights is remedied in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognized human rights standards and principles, including the United Nations Guiding Principles on Business and Human Rights, applicable in the Host Country''.[10] Of particular importance is the explicit reference to the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles'), a non-binding legal framework intended to minimize adverse human rights impacts triggered by business activities. The UN Guiding Principles are based on three pillars, namely (i) the State duty to protect human rights; (ii) the corporate responsibility to respect human rights; and (iii) access to remedy.

The following sections will address some of the issues that remain outstanding even after the insertion of human rights obligations to the 2024 HCC.

No direct involvement of the Host Country

First and foremost, the Host Country itself is not directly obliged to protect and respect human rights under the 2024 HCC. Instead, the provision discussed above imposes human rights obligations on the Host City, the Host NOC and the OCOG. It is critical to note that the relevant provision requires the Host City, the Host NOC and the OCOG not only to respect, but also to protect human rights, suggesting that these entities shall take positive actions to facilitate the enjoyment of human rights. This begs the question whether the Host City, the Host NOC and the OCOG have the political, legal and financial capacity to effectively take such positive actions.

For instance, the Host City and the OCOG would be expected to include human rights obligations in their contracts with suppliers of public infrastructure and sporting facilities. However, even if they do so under the threat of contract's termination and further sanctions, it may not suffice to prevent Olympic Games-related human rights abuses from occurring. Unlike the Host Country Authorities, the Host City, the Host NOC and the OCOG do not possess the necessary powers to monitor and adjudicate the human rights compliance of their sub-contractors. Furthermore, much of the infrastructure build-up might be conducted by the Host Country directly and would therefore evade the scope of application of the HCC.

Who determines when human rights obligations are violated? 

In practice, human rights obligations arising out of a contractual relationship are not easy to deal with, because it might be rather difficult to decide whether they have been observed or not. For this reason, it is essential to entrust an independent body with competence to decide whether the Host City, the Host NOC or the OCOG have complied with their human rights obligations under the HCC. Unfortunately, the 2024 HCC in its current form does not stipulate who is responsible for adopting a decision determining that the Host City, the Host NOC and the OCOG are in breach of their human rights obligations. 

It follows that the IOC itself (via the Coordination or Legal Affairs Commission) may take on this inquisitorial and quasi-judicial role. However, this would lead a very interested party to monitor and adjudicate the human rights compliance of the Host City, the Host NOC and the OCOG. The potential for a conflict of interests is evident, as the IOC could face negative financial and other consequences if it decides to withdraw the Games from the Host City, the Host NOC and the OCOG. In this configuration, the incentives will therefore be strongly opposed to finding for a lack of compliance.

Instead, we could imagine a separate, truly independent body consisting of NGO members, athletes' representatives, union representatives, CAS arbitrators and independent experts (such as academics or judges at the European Court of Human Rights). This body could have an investigative and an adjudicative chamber (not unlike the FIFA Independent Ethics Committee), ensuring a separation between monitoring and adjudicating. Should the Host City, the Host NOC or the OCOG consider sanctions imposed under such a mechanism arbitrary, they might still activate the CAS arbitration clause[11] and challenge the validity of these sanctions before the CAS.

Will the sanctions contemplated by the HCC be effective? 

As explained in the first part of this blog, the most severe sanction contemplated by the HCC in the event of non-compliance is the withdrawal of the Games from the Host City, the Host NOC and the OCOG with prior notice.[12] It should be emphasized, however, that a removal of the Games would result in both financial and reputational harm being incurred by the IOC.[13] Therefore, it is arguable whether the IOC would in practice be ready to withdraw the Games. In fact, the IOC has withdrawn the Games so far only due to the outbreak of the First and Second World War, when the Games were cancelled altogether.[14] Being aware of the IOC's unwillingness to withdraw the Games, the Host City, the Host NOC and the OCOG may not perceive the threat of losing the Games as credible. Consequently, these entities may not feel obliged to adhere to their human rights obligations under the HCC.

With regard to other enforcement measures, the IOC is entitled, inter alia, to retain all amounts held in the General Retention Fund[15] or withhold any payment due, or grant to be made to the OCOG pursuant to the HCC.[16] By not providing the relevant financial contribution to the OCOG, the IOC would risk delays in construction and other preparatory works – something the IOC certainly wants to avoid. Eventually, these sanctions might prove to be as inefficient as the threat of losing the Games, given that the IOC may turn a blind eye to violations of the HCC in order to safeguard its financial and other interests. Besides financial considerations, the IOC's reluctance to impose sanctions on the Host City, the Host NOC and the OCOG follows from the fact that the IOC would thereby implicitly acknowledge its mistaken decision to award the Games to a particular Host City in the first place.

Conclusion

This blog has identified three specific concerns potentially relativizing the impact of the human rights obligations recently added to the 2024 HCC. First, the Host City, the Host NOC and the OCOG as the formal addresses of these obligations may not have the capacity to ensure the human rights compliance of their sub-contractors. Second, the 2024 HCC in its current form lacks clarity as to when the Host City, the Host NOC and the OCOG are in breach of their human rights obligations and who is responsible for adopting a decision to that effect. Third, being aware of the IOC's unwillingness to withdraw the Games due to financial and other interests involved, it is likely that the Host City, the Host NOC and the OCOG might refuse to abide by their human rights obligations under the HCC. This is not to say, however, that introducing human rights requirements is not an important step forward, but as always with this type of decisions the devil will be in the implementation.

[1]    The 2022 HCC was executed in Kuala Lumpur on 31 July 2015.

[2]    Agenda 2020; Recommendation 1.5.

[3]    2024 Host City Contract – Principles; Article 15.2. (b).

[4]    Ibid., Article 15.1.

[5]    Agenda 2020; Recommendations 1.6., 1.7., 1.10.

[6]    Ibid., Recommendation 1.9.

[7]    2022 Host City Contract; Preamble (L.).

[8]    Ibid., Article 21.

[9]    Agenda 2020; Recommendation 1.5.

[10]   2024 Host City Contract – Principles; Article 13.2. (b).

[11]   Ibid., Article 51.2.

[12]   Ibid., Articles 38.2., 38.3.

[13]   R. Gauthier, The International Olympic Committee, Law and Accountability, Routledge, 2017, at 144-145.

[14]   Ibid., at 144.

[15]   According to Article 8.2. (d) of the 2024 HCC, the General Retention Fund represents a percentage (5 %) of ''any sums of money or equivalent value-in-kind payable to the OCOG in relation to the International Programme''. It is maintained and controlled by the IOC.

[16]   2024 Host City Contract – Principles; Article 36.2. (a), (b).

Editor's note
Piotr is an intern at the ASSER International Sports Law Centre.

Introduction

On 24 July the Court of Arbitration for Sport (CAS) issued its decision in the proceedings brought by the Indian athlete Ms. Dutee Chand against the Athletics Federation of India (AFI) and the International Association of Athletics Federations (IAAF) in which she challenged the validity of the IAAF Regulations Governing Eligibility of Female with Hyperandrogenism to Compete in Women’s Competition (Regulations). The Regulations were established in 2011 as a response to the controversies surrounding South African athlete Caster Semenya (see e.g. here, here, and here), and for the purpose of safeguarding fairness in sport by prohibiting women with hyperandrogenism, i.e. those with excessive levels of endogenous (naturally occurring) testosterone, from competing in women athletics competitions. Owing to the subject-matter that the Regulations cover, the case before the CAS generated complex legal, scientific and ethical questions. The following case note thus aims at explaining how the Panel addressed the issues raised by the Indian athlete. It follows a previous blog we published in December 2014 that analysed the arguments raised in favour of Ms. Chand.

The Facts

Since 2012 Ms. Chand has been a resident at the National Institute of Sports, a training facility operated by the Sports Authority of India (SAI).[1] In 2013 the Indian Ministry of Youth Affairs and Sport introduced the Standard Operative Procedure which became binding on the SAI.[2] The purpose of the measure was to establish rules governing investigations, diagnosis and assessment of eligibility to compete of female athletes with hyperandrogenism.[3] According to Ms. Chand, in mid-2014 she was asked by the Director of the AFI to undergo a doping test.[4] During a meeting with Dr. Mendiratta, the Chairperson of the AFI’s Medical Commission, the athlete was informed that she needed to undertake a routine medical examination.[5] She was then subjected to an ultrasound scan instead of a blood test.[6] While denying that the medical examination had anything to do with gender determination or hypernadrogenism testing, Dr Mendiratta admitted that a number of athletes expressed their concerns regarding Ms. Chand’s appearance, and questioned whether she should be permitted to compete in female athletics competitions.[7] After additional tests at the SAI’s training camp, Ms. Chand was notified that she would neither be allowed to compete in the World Junior Championships, nor would she be eligible for selection for the Commonwealth Games due to high levels of testosterone detected in her body.[8] The information subsequently reached the media, thus compromising the confidentiality of the athlete’s case.[9] At the end of August 2014 Ms. Chand received a letter from the AFI informing her that she has been provisionally suspended from participating in any athletics events with immediate effect.[10] On 26 September 2014 the athlete filed an appeal against the decision asking the CAS to declare the Regulations invalid and void, and to set aside the AFI’s decision.[11] Even though the decision to suspend Ms. Chand was taken by the AFI, both the IAAF and the AFI agreed to the submission of the dispute to the jurisdiction of the CAS[13] which then addressed the following issues:

I.      Do the Regulations discriminate against certain female athletes on the basis of a natural physical characteristic and/or sex?

II.    Should the Regulations be declared invalid on the basis that there is insufficient scientific evidence to uphold them?

III.  Should the Regulations be regarded as disproportionate?

IV.  Are the Regulations invalid because they are a form of unauthorised anti-doping sanction?[14]

Decision of the CAS

As a preliminary point the CAS addressed the issue of the burden and the standard of proof. Concerning the former, the parties agreed that the onus of proof as to the validity of the Regulations lies with Ms. Chand, and that in case the instrument is found to be prima facie discriminatory the burden will shift to the IAAF to establish that the Regulations are justified and proportionate.[15] If the IAAF was to succeed in establishing that the measure is justified and proportionate it was then for the athlete to disprove the grounds for the justification.[16] Ms. Chand also accepted that she bears the burden of proof as to the scientific basis for the Regulations and the issue of its validity.[17] Moreover, referring to the decision in Pistorius[18], the Panel indicated that the balance of probabilities was to be the appropriate standard of proof.[19] However, the Panel indicated that the ‘standard to justify discrimination of a fundamental right, which includes the right to compete as recognised in the Hyperandrogenism Regulations, should be to a level higher than that of the balance of probabilities’.[20]

Subsequently, and in connection to the issue of discrimination, the parties and the CAS agreed that the Regulations place restrictions on the eligibility of certain female athletes to compete on the basis of a natural physical characteristic.[21] Moreover, the instrument required female athletes to undergo testing for levels of endogenous testosterone, an obligation that does not apply to male athletes. Therefore, the Regulations were regarded by the CAS as prima facie discriminatory.[22] Consequently, it was for the IAAF to prove that the measures were necessary, reasonable, and proportionate for the purpose of establishing a level playing field for female athletes (the third issue).[23]

On the question regarding the scientific basis for the Regulations the parties agreed that lean body mass (LBM) contributes to increased sports performance, however, disagreed on the question of the effect of testosterone in generating LBM.[24] The Panel thus deemed it necessary to firstly look at the issue of the relationship between testosterone and athletic performance, and secondly, the difference between endogenous and exogenous testosterone. Concerning the former, the athlete’s expert tried to convince the Panel that on the basis of a study by Healy et al, which compared 24 variables between elite male and female athletes such as hormone levels and body fat,[25] no correlation between testosterone levels and LBM can be established.[26] It was further argued, without support in clinical or scientific data however, that the difference in LBM ratios in males and females should not be attributed solely to testosterone, but also to sociological and biological factors including the growth hormone.[27] It was also submitted, again as a mere hypothesis, that if testosterone was the key determinant of athletic performance, men with low testosterone should not be capable of successfully competing in sporting events.[28] In their response the IAAF’s experts criticized the above-mentioned study pointing at its methodological limitations (failure to use state-of-the-art methods for measuring testosterone),[29] the fact that the samples were not taken for medical purposes,[30] the timing of the blood samples (those were taken after competitions when testosterone levels in men are likely to be decreased),[31] and the lack of a discussion on the correlation between testosterone and LBM.[32] In this regard the Panel noted that, contrary to the athlete’s experts, the IAAF’s experts, relying on inter alia the Harper study, specifically addressed the relationship between testosterone and LBM. The IAAF’s experts thus established evidence for testosterone being the key factor underlying the difference in male and female athletes’ performance.[33] Moreover, the Panel agreed with the IAAF’s experts that ‘outliers’, i.e. athletes with abnormal levels of testosterone, should not be taken into account for the purpose of establishing the average testosterone levels of male and female athletes.[34] Consequently, the CAS decided that by failing to sufficiently address the issue of the relationship between testosterone and LBM, Ms. Chand did not present a case that testosterone is not a material factor in determining athletic performance.[35]

The relevance of the second sub-issue was due to the fact that the athlete and her experts agreed that exogenous testosterone has performance enhancing effects.[36] Also here the Panel was faced with contradicting evidence and testimonies. Ms. Chand’s experts indicated that the 2005 Sader study established that exogenous and endogenous testosterone may have opposite effects.[37] Furthermore, on the basis of the research done by Crewthler et al it was argued that both ‘types’ of testosterone do not necessarily lead to the same results in terms of muscle growth enhancement.[38] The IAAF’s experts did not accept these arguments. They described the Sader study as flawed in terms of the methodology used (e.g. lack of specification as to whether the subjects themselves were hyperandrogenic),[39] and submitted that the research done by Crewthler et al has not only been misrepresented since it focused on examining the short-term effects of exogenous and endogenous testosterone, but also that its findings were inconclusive.[40] Furthermore, the IAAF referred to the Cardinale and Stone study which examined both the testosterone levels and jumping abilities of female volleyball players and sprinters, and where the correlation between endogenous testosterone and performance has been established.[41] The counter argument by the athlete’s experts that the difference between sprinters and volleyball players may be due to the different nature of the two sports was considered by the Panel as a speculation and a hypothesis which cannot trump the established data and was thus rejected.[42] As a result, the CAS ruled that, based on the current scientific knowledge, it is not possible to conclude with certainty whether a difference between exogenous and endogenous testosterone exists.[43] Hence, as the burden of proof was on the athlete, she failed to prove the existence of such a difference which in turn led the CAS to conclude that there is a scientific basis for the use of testosterone as the determining factor under the Regulations.[44]

On the issue of proportionality the CAS underlined that it was of the view that endogenous testosterone is a key biological indicator of the difference between males and females.[45] It also noted that there are two categories of competitions, namely male and female, and that they cover all athletes wishing to compete.[46] However, the CAS also pointed out that it is contrary to the fundamental principles of Olympism to prevent some women from competing as a consequence of the natural and unaltered state of their body.[47] As a consequence, the Regulations could stand only if the IAAF could prove that the measures were necessary and proportionate for achieving the goal of safeguarding fair competition. And since the Regulations were based on a premise that women with hyperandrogenism enjoy a significant performance advantage, the degree of the advantage became the key issue in assessing the proportionality of the measure.[48] Here, the CAS relied on expert testimonies in order to assess both the quantitative and qualitative effects of high levels of testosterone on female athletes. Concerning the former, the CAS concluded that there is currently no evidence as to the exact effect of hyperandrogenism on female athletes’ performance.[49] Regarding the latter, the Panel found that medical examinations of female athletes are similarly not capable of providing sufficient data to illustrate what degree of competitive advantage results from endogenous testosterone over the level of 10 nmol/L that has been accepted as the threshold for the purpose of the Regulations.[50] Hence, the CAS was not able to conclude that hyperandrogenic female athletes enjoy a substantial competitive advantage.[51]  Excluding them from competing unless they agree to take medication or undergo a treatment cannot be regarded as a necessary and proportionate means of safeguarding fairness.

Lastly, the CAS rejected the athlete’s contention that the Regulations constitute an impermissible doping sanction. The Panel indicated that anti-doping sanctions seek only to punish the use of external substances by athletes and endogenous testosterone cannot be regarded as such.[52] Moreover, the CAS indicated that the Regulations provide for eligibility rules, and thus, have not been established to regulate prohibited conduct and to impose sanctions for violations, and do not involve any reprimand or censure.[53] Also, athletes banned on the basis of hyperandrogenism can resume competing as soon as they comply with the eligibility criteria.[54] Finally, the Panel noted that the Regulations do not purport to modify, supplement, or expand the WADA’s list of prohibited substances.[55] Consequently, the athletes last ground of appeal was rejected by the CAS.

Conclusion

The Dutee Chand affair has not quite reached the global climax experienced at the time of the Pistorius award in 2008. Yet, similar complex scientific facts and assessments are at play in evaluating whether high levels of endogenous testosterone provide such a competitive advantage to a women that she should be deprived of her fundamental right to compete in sporting competitions. The complexity of the matter is reflected in the length of the award (161 pages). In that regard the Pistorius decision was much shorter (14 pages). The arbitrators decided to comprehensively reflect the current state of scientific knowledge and debate over the role of high endogenous testosterone in providing a competitive edge to female athletes. This is a commendable feat of transparent decision-making by a Court and enables commentators and scientist to critically engage with the assessment made. On the scientific side of the case, the CAS arbitrators sided with IAAF. They recognise that high endogenous testosterone might provide a competitive advantage to Ms. Chand. Yet, and this is the important final twist in the decision, this does not imply that anything goes to deprive these athletes of their right to compete. Indeed, this right to compete is deemed so fundamental (obviously in line with what sport is in the end about) that a drastic restriction to it, as the one imposed on Ms. Dutee Chand, can only be justified if it is absolutely necessary and proportionate. In other words, the right to compete trumps policy decisions of international federations when these decisions are not sufficiently grounded in supporting reasons and facts. This is where the burden of proof shifts back onto the IAAF: is a high endogenous testosterone level susceptible to give an athlete such a competitive advantage that the fairness of the races be jeopardised? The IAAF has two years to demonstrate this assertion, in the meantime it will have to tolerate Ms. Chand in its competitions and we will get the opportunity to see whether or not she will outrageously dominate the world’s best runners.

[1] CAS 2014/A/3759 Dutee Chand v Athletics Federation of India and the International Association of Athletics Federations (Dutee Chand), para 8

[2] Ibidem, para 9

[3] Ibidem

[4] Ibidem, para 11

[5] Ibidem

[6] Ibidem

[7] Ibidem, para 12

[8] Ibidem, paras 15-16

[9] Ibidem, paras 17-20

[10] Ibidem, para 27

[11] Ibidem, para 75

[12] Ibidem, paras 106, 114, 358

[13] Ibidem, paras 424, 428-430, 436

[14] Ibidem, para 32

[15] Ibidem, para 441

[16] Ibidem, para 445

[17] Ibidem, paras 442-443

[18] CAS 2008/A/1480 Oscar Pistorius v the International Association of Athletics Federations

[19] Dutee Chand, paras 446-447

[20] Ibidem, para 443

[21] Ibidem, paras 448-450

[22] Ibidem, para 448

[23] Ibidem, para 449

[24] Ibidem, para 454

[25] Ibidem, para 137

[26] Ibidem, para 455

[27] Ibidem, paras 156, 460-461

[28] Ibidem, para 465

[29] Ibidem, para 456

[30] Ibidem, paras 151, 461

[31] Ibidem, para 456

[32] Ibidem

[33] Ibidem, paras 459, 462, 469

[34] Ibidem, para 467-468, 494

[35] Ibidem, paras 498-499

[36] Ibidem, para 490

[37] Ibidem, para 475

[38] Ibidem, para 478

[39] Ibidem, para 476

[40] Ibidem, para 478

[41] Ibidem, para 480

[42] Ibidem, para 481

[43] Ibidem, paras 479, 488

[44] Ibidem, paras 488, 498-499

[45] Ibidem, para 511

[46] Ibidem, para 512

[47] Ibidem, para 513

[48] Ibidem, para 517

[49] Ibidem, para 521

[50] Ibidem, para 530

[51] Ibidem, paras 524, 527, 532, 534-535

[52] Ibidem, para 543

[53] Ibidem, para 544

[54] Ibidem

[55] Ibidem, para 545