In a landmark decision, the Grand Chamber of the European Court of Human Rights (ECtHR) has delivered its final ruling that South African athlete Caster Semenya’s right to a fair hearing was violated by the Swiss judicial system. 

In doing so, the ECtHR determined that the national court, the Federal Supreme Court of Switzerland (FSC), should have taken, but failed to take, a "particularly rigorous" approach to Semenya's challenge to a decision of the Court of Arbitration for Sport (CAS). The ECtHR said a heightened level of rigour was necessary when hearing an appeal from an athlete in dispute with their sport’s governing body where the athlete’s fundamental civil rights were at stake. 

The case is of relevance here in England because the ECtHR has jurisdiction over England and Wales and could, therefore, reach an equivalent decision in respect of appeals heard by the English court in respect of similar arbitrations seated here.

Background

Caster Semenya is a two-time Olympic and three-time world champion in the women’s 800m. She has a naturally occurring difference of sex development (DSD) that results in higher levels of endogenous testosterone. 

In 2018, World Athletics (formerly the IAAF) introduced eligibility regulations requiring female athletes with certain DSDs to lower their testosterone levels — typically through medication — if they wished to compete in the female category in certain events (the DSD Regulations). 

Semenya challenged the legality of the DSD Regulations in arbitration proceedings before the CAS, which is seated in Lausanne, Switzerland. This was the legal route of challenge prescribed by World Athletics. The CAS accepted that the DSD Regulations were prima facie discriminatory, but concluded that the discrimination was a necessary, reasonable, and proportionate means of achieving the legitimate aim of ensuring fair competition in women’s sport. 

Semenya appealed this decision to the FSC - Swiss law providing that appeals in Swiss-seated arbitrations lie only to the FSC. In this respect, Swiss law provides an exhaustive list of grounds on which an international arbitral award may be challenged in court; the only ground available to Semenya was that the award was incompatible with public policy. The FSC found, however, that the award was not incompatible with public policy and dismissed the appeal. 

Semenya therefore brought a claim before the ECtHR against Switzerland. Semenya argued that Switzerland had violated her right to a fair hearing (Article 6), her right to respect for private life (Article 8) taken together with her right to be free from discrimination (Article 14) and her right to an effective remedy (Article 13). The lower Chamber of the ECtHR held that Semenya had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively. 

On 9 October 2023, the case was referred to the Grand Chamber of the ECtHR at the request of Switzerland.

The Grand Chamber decision 

The Grand Chamber upheld Switzerland’s preliminary objection that the application did not fall within Switzerland’s territorial jurisdiction, due to the absence of a sufficient link between it and Semenya. It would not, therefore, consider the questions relating to the violation of Article 8, 13 or 14 of the Convention. 

However, the Grand Chamber excepted Article 6 from this general principle of territoriality because it relates to a procedural right - the right to a fair trial. It provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Grand Chamber found that Semenya’s appeal to the FSC created a jurisdictional link with Switzerland that entailed an obligation on Switzerland to ensure respect for her Article 6 rights in the FSC proceedings. 

In considering whether Semenya’s Article 6 rights had been violated, the Grand Chamber reasoned that specific regard must be had to the fact that sports arbitration occurs within the context of the structural imbalance which often characterises the relationship between sportspersons and their governing bodies. Sport governing bodies exercise powers in the field of international sports competition which are akin to regulation-making powers; in particular, they determine who can compete and under what conditions. This “vertical structure” can be distinguished from the horizontal relationship between parties to a typical contractual relationship. 

The Grand Chamber found that the specific characteristics of the arbitration to which Semenya had been subject had required an in-depth judicial review commensurate with the seriousness of the personal rights at issue. The review of Semenya’s case by the FSC had not satisfied the requirement of “particular rigour” called for in the circumstances of the case, and had adopted an overly restrictive interpretation of the notion of public policy. The Grand Chamber therefore concluded in a 15-2 ruling that Switzerland had violated Semenya’s Article 6 rights. 

Comment

This judgement is expected to set an important precedent for athlete rights globally. The Swiss judicial system will need to quickly adapt to this novel concept of a "particularly rigorous review” in arbitral appeals in which fundamental individual rights are at stake in the context of vertical structures, such as here an athlete’s right to a fair hearing in a dispute against her sport’s governing body. There may also be broader consequences for international arbitration.

The meaning of “particular rigour”

The Grand Chamber made it clear that, in cases involving athletes’ human rights, the Swiss courts cannot treat CAS awards as if they were commercial arbitration decisions. Sports people do not elect for arbitration in the usual sense, it is imposed on them by their respective sports’ governing bodies. When an athlete’s fundamental rights are at stake, the scrutiny on appeal must therefore be deeper, more searching, and more attuned to the real-world impact on the individual. This requirement for “particular rigour” arises precisely because of the structural imbalance between athletes and the powerful sporting bodies that regulate their participation. 

It is notable that the Grand Chamber deemed the level of scrutiny from the FSC insufficient despite the apparent length and detail of its decision, which ran to 70 pages, including 38 pages of legal reasoning. The ECtHR did not provide clear guidance on exactly what would suffice. 

It is probable, however, that a holistic and context-sensitive approach is required. The Grand Chamber said that the FSC had failed to act sufficiently on the doubts expressed by the CAS on a number of points it had left open in its award. For example, when assessing whether the DSD Regulations were proportionate, the CAS expressed serious concern about the potential difficulty for athletes to maintain their testosterone levels consistently below the maximum permitted, but ultimately concluded that this ground was speculative. The Grand Chamber said this point was decisive for the outcome of the dispute before the CAS, yet the FSC largely failed to address it. The FSC’s limited review of this key aspect of the case, notwithstanding the CAS’s ambiguous reasoning, fell short of the intensity of review demanded. 

Interplay with commercial arbitrations

The UK Government submitted observations to the Grand Chamber as a third-party intervener. It contended that requiring supervising courts in commercial cases to apply the approach required would have serious adverse consequences for the effectiveness of commercial arbitration, and for the attractiveness as arbitral venues of states which are party to the Convention. Therefore, the UK Government invited the Grand Chamber to clarify that the approach was confined to “mandatory” arbitration, and that commercial arbitration to which contracting parties had freely agreed is unaffected. 

Although the ECtHR did not expressly limit the application of its decision in this way, the judgement clearly recognised the specific imbalance of power at play in Semenya’s case and thereby distinguished it from typical commercial arbitration (vertical vs horizontal, or mandatory vs voluntary), at least implicitly. It was also of central importance that Semenya’s appeal raised questions of her fundamental rights, such as the prohibition on discrimination and the right to human dignity.

As a matter of principle, there is a risk that this requirement for a particularly rigorous examination of an appeal be translated to other appeals against or challenges to arbitral awards. This risk is increased by the simple fact that there is no mandatory/voluntary distinction under the New York Convention. 

That said, the risk at present seems to us to be small, at least in so far as commercial arbitration is concerned. Where companies on an equal footing voluntarily submit to having their disputes determined by way of commercial arbitration, it is justifiable (and desirable) for any review of the final award to be very limited. Such limitation is typically by reference to incompatibility of the award with public policy and nothing more (which was indeed the approach taken by the FSC here).