In <span class="news-text_italic-underline">Semenya v Switzerland (Application no 10934/21)</span>, the Grand Chamber of the European Court of Human Rights (“<span class="news-text_medium">ECtHR</span>”) ruled that Switzerland violated Article 6(1) of the European Convention on Human Rights (“<span class="news-text_medium">ECHR</span>”) by failing to provide a fair hearing to former Olympic champion Caster Semenya. The court determined that Switzerland’s Supreme Court had not conducted a "particularly rigorous examination" or "in-depth judicial review" of the Court of Arbitration for Sport (“<span class="news-text_medium">CAS</span>”) award, which upheld Semenya’s exclusion from international women’s athletics competitions due to her naturally elevated testosterone levels.
The dispute arose after Semenya challenged the eligibility requirements imposed by World Athletics (formerly the IAAF) for female athletes with differences of sex development (“<span class="news-text_medium">DSDs</span>”). These regulations required Semenya to medically suppress her testosterone levels in order to compete. After the arbitration proceedings, the CAS ruled against her, upholding the regulations. Semenya then sought to set aside the CAS award in Switzerland, arguing that it violated public policy, specifically her fundamental rights under the ECHR.
The Swiss Supreme Court dismissed her appeal, finding no violation of substantive public policy in the CAS decision. Semenya filed an application with the ECtHR, alleging violations of her rights under Articles 6 (right to a fair trial), 8 (right to private life), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the ECHR.
The ECtHR’s Third Section Chamber initially upheld Semenya’s claims, finding that Switzerland had failed to uphold her right to be free from discrimination and to have an effective remedy, particularly with regard to her private life and dignity. However, the Swiss government requested a referral to the Grand Chamber, which upheld Switzerland's preliminary objection in part, but ultimately found that Switzerland had violated Semenya’s right to a fair trial under Article 6.
The Grand Chamber explained that the Swiss Supreme Court’s review of the set-aside application did not meet the required standard. It emphasised that where an athlete is subject to compulsory arbitration under CAS, particularly when fundamental rights like bodily integrity are at stake, the reviewing court must conduct a "particularly rigorous examination" of the arbitration award. This is especially important when the dispute concerns the athlete’s personal rights, such as the right to compete and the proportionality of the regulatory measures imposed.
The Grand Chamber noted that while Swiss law limits the review of arbitral awards to issues of public policy, the Swiss Supreme Court did not adequately examine whether the CAS award was proportionate and compatible with Semenya’s fundamental rights. The court’s failure to conduct this in-depth review was found to constitute a violation of Article 6(1) of the ECHR.
While the decision is specific to the unique circumstances of the case, it raises important questions about the relationship between sports arbitration and fundamental human rights, particularly for athletes subjected to mandatory arbitration. The ruling may have broader implications for how public policy and human rights are considered in the context of arbitral awards, especially in disputes involving professional athletes.
In a partially dissenting opinion, Judges Eicke and Kucsko-Stadlmayer raised concerns about the potential for this judgment to be extended to other forms of arbitration and the challenge to arbitral awards in more general terms, suggesting that such a "particularly rigorous examination" should remain limited to cases involving compulsory arbitration between athletes and sports governing bodies.
This ruling is a significant step in ensuring that athletes’ fundamental rights are not overlooked in arbitration processes, particularly when the arbitration is imposed by sports federations with significant regulatory powers.
