In its judgement dated 25 August 2020, the Swiss Federal Tribunal (“SFT”) – the competent body in Switzerland to rule on set-aside applications lodged against arbitral awards made in Switzerland – dismissed Caster Semenya’s challenge of an award rendered by the Court of Arbitration for Sport (“CAS”) 16 months earlier. The CAS had confirmed the legality of World Athletics’ current regulatory framework governing the eligibility of women with certain differences of sex development to participate in the female classification at international middle distance races (400m, 800m and 1500m) (“DSD Regulations”).
Under the DSD Regulations, Caster Semenya and other affected athletes are forced to reduce their levels of testosterone as a condition for their eligibility to compete in international events (such as, e.g., the Olympic Games).
The SFT’s dismissal of Ms. Semenya’s set-aside motion means that the athlete has now exhausted all available judicial remedies against the DSD Regulations in Switzerland.
Background of the Decision
Effective November 2018, World Athletics replaced its previous Hyperandrogenism Regulations (which had been the subject of separate CAS proceedings initiated by the Indian sprinter Dutee Chand) by the DSD Regulations. The DSD Regulations apply to legally female or intersex athletes with male (XY) chromosomes and circulating testosterone in the male range. For women with a DSD to compete at international level in the female classification, they have to lower the level of testosterone in their blood down to below 5 nmol/L (because that is the highest level that a healthy woman with ovaries would have).
Caster Semenya, a two-times Olympic champion over the 800 m distance, sued World Athletics before the CAS in 2018 in an attempt to have the DSD Regulations be declared unlawful because of, inter alia, a discrimination on the basis of natural, physical, genetic or biological traits.
In an elaborate award of 163 pages, the majority of an experienced CAS Panel chaired by former Australian judge Annabelle Bennett, dismissed Ms. Semenya’s claims (the “CAS Award”). The CAS Panel found that the DSD Regulations are in fact discriminatory, but that – on the basis of the evidence submitted by the parties – such discrimination is a necessary, reasonable and proportionate means for achieving the legitimate objective of ensuring fair competition in female athletics in certain events.
Ms. Semenya filed a motion to set aside the CAS Award before the SFT (Art. 190 (2) of the Swiss Federal Private Law Act [“SPILA”]) on 28 May 2019. By a provisional order dated 31 May 2019, the SFT ordered World Athletics to provisionally suspend the application of the DSD Regulations. The suspension was lifted and the DSD Regulations reinstated by a subsequent court order of 29 July 2019. As a result, Ms. Semenya was unable to defend her 800m World Championship title at the World Championships in Doha in September.
On 25 August 2020, the Swiss Federal Tribunal issued its final judgment on the matter.
The Swiss Federal Tribunal’s Decision
The decision of the SFT confirms a number of important legal principles developed by the court in the past.
On a procedural level, the SFT confirmed its jurisprudence developed in the Cañas-decision (SFT 133 III, 235) that an athlete forced to sign an arbitration agreement in favor of CAS cannot validly waive his or her right to seek recourse against the award before the SFT. This is an exception to Article 192 SPILA, which principally allows non-Swiss parties to waive the annulment action. The DSD Regulations contained a respective waiver, which the SFT found to be inapplicable to Ms. Semenya.
In reliance on the most recent judgment of the European Court of Human Rights in the Pechstein/Mutu case, the SFT further explained that forced arbitration clauses are principally valid and binding upon athletes if the chosen arbitration panel offers the same guarantees under Art. 6 ECHR than a state court, in particular those of independence and impartiality. The SFT (once again) confirmed that the CAS is such an independent and impartial tribunal.
The SFT further emphasized the limitations under which its review of arbitral awards operates. In principle, the SFT is fully bound by the facts established by the arbitral tribunal. It is prohibited from establishing new facts, or from replacing the evidentiary assessment of the arbitral tribunal by its own considerations. Similarly, the SFT may not overturn an award simply because of an incorrect application of the law. The substantive law review of an international arbitral award is limited to the award’s compatibility with public policy. An award is incompatible with public policy if it disregards essential and widely recognized values, which – according to prevailing concepts in Switzerland – form the very basis of any legal system. The threshold to find a violation of public policy is extremely high. In CAS’s history of more than 35 years, there has been only one award overturned by the SFT on the basis of a public policy violation (in the Matuzalem-case, SFT Judgment dated 27 March 2012, 4A_558/20111).
In light of the SFT’s limited power of review and the thorough foundation of the CAS Award, particularly on the evidentiary level (where the CAS Panel had heard a very large number of different experts), it does not come as a surprise that the SFT dismissed Ms. Semenya’s challenge. In particular, the SFT accepted the CAS’s primary factual premise that female athletes carrying a DSD enjoy a significant competitive advantage (estimated at between 10 and 12%) over female athletes without a DSD as a result of their increased testosterone levels. It also accepted the legal premise that ensuring fair competition is a legitimate interest. On this basis, the SFT found that the CAS’s reasoning regarding the necessity and proportionality of the DSD Regulations was not unsustainable or unreasonable. It agreed that the DSD Regulation provide for a fair reconciliation of the interests of female athletes with a DSD and female athletes without a DSD. Remarkably, the SFT had some open (and seldom) praise to share about the quality of the CAS Award and the diligence with which it was made in light of the highly complex scientific and legal issues.
In theory, Ms. Semenya could challenge the SFT’s decision before the European Court of Human Rights, arguing that the decision violates fundamental human rights enshrined in the ECHR. Seizing this court would, however, be a long journey with an uncertain result. In light of the compelling scientific evidence on which the CAS relied, and the important private and public interest of fair competition in sports, it remains to be seen whether Ms. Semenya will embark on this journey.