Discover and read the best of Twitter Threads about #Semenya

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I really enjoyed talking to Noah about the #CAS.

It’s not the first time I’m coming out publicly to challenge the status quo at the CAS (see…) and I’d like to explain a bit why.

[Thread] 👇👇👇

#Sportslaw #Arbitration #Transparency #Independence
1. #CAS is a crucial player in sports governance, it whitewashes legally speaking the decisions of international SGBs. Once a CAS award confirmed a decision of an SGB, the latter gains in authority and becomes extremely difficult to challenge elsewhere (see #Pechstein odyssey).
2. #CAS is not an arbitral tribunal, I repeat #CAS is not an arbitral tribunal! As I have argued elsewhere (…), CAS jurisdiction in appeal cases cannot be grounded on consent, it needs post-consensual foundations (such as the famous ‘level playing field’).
Read 21 tweets
Let me share a few thoughts on the latest #Semenya development - her appeal rejected by the Swiss Supreme court, World Athletics policy supported (pretty strongly too). We are planning a short pod on this tomorrow too, but here are a few thoughts… (1/…)
First, we’ve spoken a lot about transgender athletes recently. That has many elements to it. This has even more, and it’s really an unsolvable situation. It’s been present for nearly 100 years in sport, some horrendous attempts to manage it, and no clean solution in sight (2/…)
This decision establishes, for now, the policy that requires athletes with hyperandrogenism to lower T in order to compete. But not any hyperandrogenism, and not just any events. It covers only that caused by a selection of DSDs, where a person is 46XY, with testes, and thus (3/
Read 28 tweets
My thread on the interim decision of the Swiss Federal Tribunal in the @caster800m case.

Full decision in French at…

It highlights key features of the #LexSportiva & the ‘complicity’ of Swiss law in sheltering it from review.

#Sportslaw #CAS
1. The #SFT reminds us that its control of #CAS awards is narrow. Hence, it orders interim measures only if it is ‘very likely’ that an appellant will prevail.

This is because Swiss law is traditionally favourable to international arbitration.

#Sportslaw #Arbitration #Semenya
2. This is extremely problematic because #CAS arbitration unlike international arbitration is in general not based in consent (see ECtHR in #Pechstein) and should not enjoy the same quasi-immunity from state control.

#Sportslaw #Arbitration #Semenya
Read 7 tweets
At the request of my new [South-African, obviously] colleague @MPlagis, I swallowed the 163 pages of the #Semenya award yesterday.

It wasn’t the most pleasant literary experience of my life, but at least I learned what a judicial ‘hot tub’ is.

Here is a book review:

1. In short, what is interesting in the award is actually also what the #CAS forgot to mentioned in its press release, the core of #IAAF’s winning case turns on the concepts of ‘biological males’ & ‘sports sex’.

#Semenya #Autonomy #Sportslaw
2. But let me start by regretting that the #CAS hearing was not public because @caster800m’s testimony (see paras 73-87) recalling what she went through since 2009 would have deserved a global audience.

#Sportslaw #Semenya
Read 16 tweets
Here is the full (redacted) #semenya decision. All 632 points:… In my mind, building up to the case, I had “framed” it as an issue of biological principle vs actual evidence for advantage. A vs B. The decision is framed a similar way in many respects (1/…)
As you go through it, you’ll see one side (IAAF) arguing heavily for biological principles of testosterone & performance, theory for men vs women, protection of women’s sport. It’s difficult to reject these. They are solid, and bring the debate to a men vs women platform.
But you also see the other side (Semenya/ASA) arguing that the issue should be framed as “Women with DSD vs women without”. This in turn invites questions of “Where is the evidence? Can the advantage be quantified? How large is it?”. This was the mandate set by CAS in 2015 (3/)
Read 16 tweets
To clarify (since there is confusion): Semenya is at the appeals process in Swiss Federal court. Today’s ruling is that the IAAF DSD Regs requiring her to lower T must be suspended until a final decision on her appeal. The IAAF have until 25 June to argue against this “delay”
What does this mean? Final decision by this court is expected to take 6 months. So one scenario is that the IAAF can’t convince the court to overrun the “delay”, so all DSD athletes can continue to run, unmedicated, until December. Then the final decision will decide the future
Another is that the IAAF does win their “mini appeal” against the stay, and then the policy would go into effect from June 25. Then the actual appeal continues in the background for 6 months. This is the “on, off, on, off, on” scenario, pending a final decision by the Swiss court
Read 5 tweets

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