Mission (im)Possible: Resurrecting the Principle of Fairness of Sport Competitions at the Grand Chamber of the ECtHR

[Faraz Shahlaei is an Adjunct Professor of law at Loyola Law School, Los Angeles]

Introduction

The intersection of human rights and sports has reached a crucial point with the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) taking over the Caster Semenya case. The case alleges human rights violations on several grounds due to DSD (Differences of Sexual Development) regulations adopted by World Athletics (WA), the governing body of the sport of athletics, which banned female athletes with higher testosterone levels from participating in women’s competitions in sports. Many other sports governing bodies (SGBs) have similar regulations in place.

Among the legal complexities in this dispute, one pivotal substantive question is whether SGBs’ claim over creating a level playing field, or in other words, the principle of fairness of sports competitions (FSC), can override human rights norms or validly restrict them. SGBs implement different measures, such as DSD regulations, to ensure FSC. Such measures may adversely affect human rights (as outlined by the Special Rapporteurs, the UN High Commissioner for Human Rights, Human Rights Watch and my article in Asser International Sports Law Blog), and balancing them against human rights standards is necessary (Semenya v Switzerland, paras 200-202). 

This question is perhaps one of the issues that the Semenya dispute largely boils down to. It was the main dividing line between the award of the Court of Arbitration for Sport (CAS) and the ECtHR’s Third Chamber judgment (TC), and similarly, between the majority’s opinion of the TC and the joint dissenting opinion. However, as will be discussed in the subsequent sections, prior proceedings have failed to strike an appropriate balance between the competing considerations outlined above. This analysis aims to explore a potential equilibrium between the aforementioned factors by introducing a human rights aspect to debates over FSC. A human rights justification for FSC is a crucial consideration and one that has been notably absent in all prior proceedings. Neither the SGB nor the State of Switzerland have framed the FSC as a measure that can safeguard human rights, even in the recent hearing before the Grand Chamber of the ECtHR.

Moreover, such analysis is necessary because DSD regulations are just one of the human rights complications stemming from FSC. In another example, athletes with disabilities who use prosthetics for competition have also been barred from participating in mainstream sporting events alongside able-bodied athletes, based on similar concerns over FSC; a measure potentially in conflict with Article 30(5) of the CRPD.

The Divide

In the Semenya case, CAS categorically disregarded human rights concerns in favor of FSC. Despite efforts by many human rights experts and even the UN Special Rapporteurs to flag serious human rights concerns, the panel found such concerns not “useful” in “resolving the specific legal issues that the Panel must decide” (CAS award, para. 554); the Swiss Federal Court found no public policy violations upholding the CAS award and the majority of the TC found sex discrimination so reprehensible that they didn’t even bother discussing FSC (paras 186, 201). Thus, as things stand now, FSC can be pronounced dead according to the majority of TC.

CAS’s one-sided analysis disregarding legitimate human rights concerns followed by the confirmation of the Swiss Federal Court, and failure of the majority of the TC to address FSC, leaves a critical gap with important unanswered questions for both human rights and sports. It remains to be seen whether the GC closes this gap by addressing the nuanced nature of the conflict. Be that as it may, this gap eventually found a central place in the joint dissenting opinion of the TC judgment, as will be discussed below.

Therefore, the compatibility of FSC with human rights is arguably a key question requiring attention, in particular, realizing that the FSC can be a measure aimed at protecting human rights itself.

Fairness of Sports Competitions (FSC)

The point of departure is to see what FSC is. Ensuring fair competition and a level playing field is the lifeblood of competitive sports, which guarantees the unpredictability and uncertainty of the outcome and makes competition meaningful. Otherwise, sport will lose a huge part of its intrinsic value and appeal.

FSC is the main driving force in the regulation and organization of many sports disciplines. Such measures encompass a wide range, including prohibiting doping, regulating technological advancements that boost athletic performance (such as banning full-body swimsuits, Vaporfly Nike shoes, specific running prosthetics for double amputee runners), employing technologies like Goal-line technology and Video Assistant Referee in football, using video challenge system in volleyball, implementing electronic touching sensors in Taekwondo, establishing a complicated classification system in Paralympics and all in a broader spectrum of generally classifying sports into age, weight, and ultimately, sex categories. In certain sports, rules for men’s and women’s competitions may vary. For example, the volleyball net is 2.43m high for men and 2.24m high for women or the metal ball in hammer throw is 7.26kg for men and 4kg for women.

Such policies are aimed at grouping participants with relatively similar athletic performance levels together, ensuring that competitions are meaningful and engaging and to ensures that the winner is determined solely by athletic abilities, without any external factors influencing the outcome.

FSC and its Relevance to Human Rights

As the global sports industry continues to expand, sport has turned into a type of work. Athletes are workers; those whose labor is the backbone of sports and whose income is tied to their athletic performance. This should be viewed in the context of the CESCR’s emphasis on the evolution of the concept of work and workers over time (GC 23, para. 4). Therefore, the competition stage is the athlete’s workplace and should be subject to the all-encompassing protections afforded by human rights (GC 23, paras 4-5).

Article 7 of the ICESCR protects just and favorable conditions of work. In particular, the Covenant emphasizes the significance of equal opportunity for promotion in work based on competence (Article 7(c)). Therefore, human rights law instructs both public and private actors to ensure a fair workplace where promotions are based on merit and fair competition.

The above human rights framework also puts a huge emphasis on equality of opportunities between men and women, which also extends to fair remuneration for men and women and equal pay for equal amount of work (GC 23, paras 9, 11, 15, 16) (another important debate with particular relevance to sports). The Committee has clarified that the criteria of competence “should also include an assessment of individual circumstances, as well as the different roles and experiences of men and women, in order to ensure equal opportunities for all” (GC 23, para. 31). 

Considering FSC in this context suggests it follows the legitimate aim of realization of other human rights. This alignment with the human rights standards may also justify having sex categories and protected competitions for women.

In fact, the dissenting judges of the TC began their dissent on the merits by highlighting the importance of placing competitors on equal footing, recognizing it as “undoubtedly a legitimate aim”, and found it surprising that the majority completely neglected FSC. The dissenting judges found that FSC pursues a legitimate aim and criticized the majority’s approach for failing to recognize its importance. They emphasized the significance of measures to ensure FSC and argued that limitations based on physical characteristics, similar to restrictions based on technical characteristics and disparities in equipment, can also be justified as they “undeniably” serve a legitimate purpose.

Accordingly, FSC can be considered a restriction fulfilling a legitimate aim. However, a valid restriction of human rights first and foremost should be lawful, and second, should employ means that are proportionate to its aim. I argue that these two grounds are where the DSD regulations, in their current form, fall short of human rights standards.

The Demise of DSD Regulations

Illegal foundations of DSD regulations

Within the human rights framework, any interference with human rights should conform to established legal standards. The applicable “law” in the human rights context extends beyond merely statutory instruments enacted through parliamentary processes. Private rules and regulations can also potentially satisfy the criteria to be considered “law”, provided they meet certain conditions. Any norm to be characterized as law should be formulated with adequate precision to enable individuals to regulate their conduct accordingly (HRC GC 34, para. 25, 34; Pakhtusov v. Russia, paras 22-26).

A key issue raised is whether the DSD regulations can be considered a form of “law” that justifies intervention, given the purported weak scientific foundation underlying these regulations calling into question the athletic advantage conferred to DSD athletes and also the practical challenges of achieving compliance even after undergoing hormone treatment (Semenya v. Switzerland, paras 179-184). The tenuous basis for the regulations casts doubt on whether they possess the requisite precision to enable individuals to appropriately regulate their conduct. This, in turn, calls into question whether these regulations can be considered “law” that would authorize such an intervention into athletes’ rights.

If DSD regulations, or other similar regulations aiming to achieve FSC, are grounded in science, the scientific basis of such regulations should be unequivocally established to validate the norm as lawful. In this context, a thorough understanding of the science behind testosterone and the biological distinctions between sexes is essential for the restriction to be considered lawful. Otherwise, any restriction based on contested scientific evidence, relying on guesswork is invalid. Such imprecise measures may be subject to broad interpretation by those in charge of their enforcement, raising concerns about arbitrary enforcement practices (Sanchez v. France, para. 125).

Disproportionality of the measures

DSD regulations require athletes with higher testosterone levels to undergo hormonal treatments. This requirement in some circumstances has resulted in athletes even undergoing surgery to remove internal organs. Such requirements infringe upon the right to health and privacy of individuals by having serious health consequences and also interfering with the physical and psychological integrity of individuals without their free consent.

While the CAS panel acknowledged the “significant” side effects associated with hormonal treatments, it failed to provide a comprehensive human rights analysis that could justify subjecting athletes to such grave physical interventions impacting their bodies (CAS award, paras 590-599) The human body is the most intimate aspect of private life (Y.F. v. Turkey, para. 33) and even minor compulsory medical interventions constitute violations of certain rights (Solomakhin v. Ukraine, para. 33). 

Arguably, FSC fails to provide a “strong justification” for encroaching on the right to physical and psychological integrity, considering the serious consequences of unnecessary hormonal treatment or surgery on natural bodies. Such health concerns would overshadow the ideals of FSC and render DSD regulations a disproportionate means of achieving their objectives.

Conclusion

FSC is necessary and reasonable for ensuring the legitimate aim of providing just and favorable working conditions for athletes. However, if it relies on a disputed scientific foundation, or involves the adoption of harmful or unethical practices, then it cannot be regarded as a lawful and proportionate restriction to human rights.

It remains to be seen whether the GC of the ECtHR will directly engage in balancing the imperative of FSC against human rights considerations in its forthcoming judgment. Be that as it may, the Court’s analysis and delineation of the boundaries between these two important interests will hold significant implications for the future governance of sports and the rights of athletes.