Thread by @Ant1Duval

My thread on the interim decision of the Swiss Federal Tribunal in the @caster800m case.

Full decision in French at bger.ch/ext/eurospider…

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

3. Assimilating #CAS arbitration to standard international arbitration is the trick used by the #SFT to refuse to check CAS awards, despite being ‘bienveillant’ when assessing the validity of the consent to arbitrate.

#Sportslaw #Arbitration #Semenya #DoubleStandard

4. To deny that #Semenya is likely to prevail, the #SFT uses 3 arguments:
a. The ban on discrimination does not apply to private rules
b. The #CAS has found that the discrimination is proportionate
c. The ECHR is not directly applicable to arbitration

#Sportslaw

5. This highlights a core issue in global sports governance. In this space, private actors regulate (i.e. they act as public authorities), but they are (at least in Switzerland) immune from the type of duties imposed on public regulators (human rights etc.)

#Sportslaw #Semenya

6. The #Semenya decision runs counter the ECtHR ruling in #Pechstein recognising that CAS arbitration should comply with the requirements of the ECHR. It shows again how important it is for the #EU & @BVerfG to exercise much stricter control over #CAS & SGBs.

#Sportslaw #TheEnd