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I know next to nothing about sports arbitration (I was involved in one case involving a Paralympian). But the short summary of the decision in the Semenya case is interesting and not at all clear cut
(short thread) tas-cas.org/fileadmin/user…
(short thread) tas-cas.org/fileadmin/user…
> Court of Arbitration expressed "serious concerns" about application of the Athletes with Differences of Sex Development (DSD) Regulations.
> They concluded the DSD regs were discriminatory but that discrimination could be justified (standard test for indirect discrimination)
> They concluded the DSD regs were discriminatory but that discrimination could be justified (standard test for indirect discrimination)
> Indirect discrimination is where a policy doesn't on its face discriminate against a particular group (e.g. women with naturally high testosterone?) but it's effect is do do so
> Indirect discrimination in UK law at least can be justified if it's proportionate
> Indirect discrimination in UK law at least can be justified if it's proportionate
> Panel were not unanimous, Semenya lost by a majority
> The Panel felt constrained by the "strict framework of the arbitration which required (in this case at least) for the DSD regulations to be found "invalid""
> i.e. sounds like they felt they couldn't rule just on her case
> The Panel felt constrained by the "strict framework of the arbitration which required (in this case at least) for the DSD regulations to be found "invalid""
> i.e. sounds like they felt they couldn't rule just on her case
> But it sounds like they made a lot of noises about the DSD regs *maybe in the near future* becoming invalid because of discrimination
> Those are the kind of noises judges (especially if they can't reach unanimity) sometimes make to signal to an appeal court to overturn them
> Those are the kind of noises judges (especially if they can't reach unanimity) sometimes make to signal to an appeal court to overturn them
> The decision can be appealed to the Swiss Federal Tribunal.
> I don't know anything about the SFT but if its a state Court then Semenya's case may end up in the European Court of Human Rights which Switzerland is subject to
> I don't know anything about the SFT but if its a state Court then Semenya's case may end up in the European Court of Human Rights which Switzerland is subject to
> Case sounds eminently appealable though narrow remit of CAS may continue to be a problem.
> Ultimately the limits of arbitration is contractual, i.e. they depend on what the terms of the arbitration agreement between the governing body and athletes says
> Ultimately the limits of arbitration is contractual, i.e. they depend on what the terms of the arbitration agreement between the governing body and athletes says
> Discrimination could also be on grounds of race or nationality if for example people of a particular race or nationality tend to have higher (or lower) natural testosterone levels
> Apologies for my ignorance, I think the Swiss Federal Tribunal is the Swiss Federal Supreme Court - which being a federal court is (indirectly) subject to the European Court of Human Rights.
> So if Semenya loses in the SFT then she can take her case to Strasbourg
> So if Semenya loses in the SFT then she can take her case to Strasbourg
