The document discusses the Court of Arbitration for Sport (CAS) ruling in the case of Semenya v IAAF regarding IAAF regulations that required female athletes with differences in sex development (DSD) and high natural testosterone levels to medically lower their testosterone in order to compete in certain track events. The CAS panel found that while the regulations discriminated against DSD athletes, the discrimination was necessary, reasonable, and proportionate to protect fair competition for other female athletes. However, the panel questioned why a similar standard regarding physical traits like height was not applied. It also noted the regulations may not apply equally at less elite competition levels.

1. SPORTS LAW: Law
and Strategy in the
Globalized Sports
Industry
INTERNATIONAL HUMAN RIGHTS

2. Review & Takeaway
• Sherman 2 bars monopolization
• Attainment of monopoly power: no reasonable substitutes
• Wilful maintenance or acquisition of power, in contrast with “superior skill, foresight,
and industry”
• EU Art 102 bars abuse of dominant position
• Improper attainment or maintenance of power
• Use of power to gain unfair advantage
• Assumes competition is a good thing and monopoly is not
• Sports monopolization
• Illegal expansion when not simply meeting new demand
• Hoarding of players
• Predatory spending
• Organizing all clubs to conspire to align with dominant league

3. Review & Takeaway II
• Monopolization/Abuse and NGBs
• Regulatory power gives NGBs dominance
• Antitrust issues arise when conflict alleged between role as regulator and
NGB commercial activities
• Formula One divested from regulatory board to separate commercial company
• Greek motorcycle NGB required to approve competitions based on “objective”
standards
• Indian cricket authority found to improperly favor own competition
• Courts have ruled for players in sanctioning cases, but real competition
issue is predation: NGBs willing to harm own national teams in order to
maintain their unrivaled power
[CONTINUE WITH SLIDE 19]

4. Human Rights as an External Constraint on
Sporting Entities
• Sporting entities must resolve an accommodate many competing
interests
• Those aggrieved often have no marketplace or other alternatives but
to accept decision of sporting bodies
• Human Rights claim is an argument for a privileged claim
• Internal argument to sporting entity
• PR concern
• Risk of statutory intervention
• Legal challenge based on applicable law

5. What are “human rights” that constrain
sporting entities?
• Most of what we consider ‘human rights’ are claims against
governments, that are not applicable to sporting entities
• Sagen v Vancouver Organizing Committee [2009]:
• BC trial judges rejects claim that IOC’s decision to have men’s but not women’s ski
jumping violated sex equality provisions of Canadian Charter
• This is private decision of IOC and VANOC, not government decision
• Many claims base on human rights documents that are not legally
enforceable, but may be strategically persuasive
• Could be based on statutory claims

6. Principal influence: interpretation of broad
clauses in internal documents
• “Soft law”: courts interpret general principles to promote human rights,
absent clear language in documents to the contrary
• Chase: common law equity won’t enforce peonage
• Messersmith: (see next time) literal language in contract construed to avoid a
perpetual option contract
• Squizzato v FINA: general concept of proportionality applies to WADA Code
• Court of Arbitration for Sport (CAS) follows Swiss law, which also requires
proportionality
• Proportionality review
• Examine entity’s objectives
• Analyze means chosen to achieve objectives
• Conclude whether means are proportionate to end

7. Semenya: Procedural setting
• IAAF rules excludes Mokgadi Caster Semenya (MCS) from further
participation in specific Athletics (track) events unless she takes drugs
to lower testosterone
• MCS and Athletics South Africa challenge rule before CAS
• IAAF rules bar athletes from bringing legal claims in court
• CAS resolves all legal claims they can bring

8. Semenya: Sources of Law
• Substantive claims
• Rules are arbitrary
• Rules are discriminatory and disproportionate
• What are the sources of law that support the claim that rules that are
arbitrary, or discrimination and disproportionate, are unlawful?
• What does the panel mean [s205] when it demurs in determining whether the
regulations are contrary to the domestic law of different national
jurisdictions?

9. Semenya: IAAF Objectives
• Reg 1.1 (a)(i): avoid discouraging athletes to invest in excellence by
having unfair competition conditions that deny athletes a fair
opportunity to succeed
• Reg 1.1 (c): sport should be as inclusive as possible, with conditions
“only to the extent necessary to ensure fair and meaningful
competition”
• Reg 1.1(e): essential to respect and preserve dignity and privacy of
athletes with differences in sex development (DSD)

10. Semenya: IAAF’s chosen means to achieve
objectives
• Separate competitions based on age
• Separate competitions for sex: a “protected class” of “female”
athletes
• Otherwise, women would be denied the right to compete and succeed
• IAAF notes can’t just rely on national law to categorize sex
• Strict confidentiality rules
• Specific eligibility requirements for certain international events
• Must reduce testosterone level to below 5nmol/L8 for six months
• Doesn’t apply elsewhere, except re world records

11. Key reasoning of Semenya decision
• CAS majority acknowledges problem that two categories works to
exclude men from competing against women, but doesn’t work for
those not w/i “discrete binary categories” [s195]
• Tribunal accepts collision of conundrums: incompatible competing
rights
• What are the conflicting rights?
• Note IAAF characterizes dispute as between women athletes and “biologically
male athletes with female gender identities” [s196]
• Key conclusion is that ok to exclude intersex athletes if rational and
fair

12. Chand prior decision
• Separate male and female categories are appropriate and justified
• Categories must be based on objective criteria
• Exclusion only if “necessary” to avoid subverting the basis for having a
female category and a level playing field
• IAAF must prove that “performance advantage was of a comparable
significance, if not identical magnitude, to that enjoyed by male
athletes” and advantage caused by testosterone

13. Semenya holding
• CAS holds that IAAF regulation is unlawful if it constitutes discrimination, as
that concept is understood generally
• CAS holds that IAAF regulation is unlawful discrimination if:
• It constitutes differential treatment on the basis of sex or innate biological
characteristics
• Is not necessary, reasonable, and proportionate
• CAS holds that the regulation differentially treats DSD athletes on the basis
of sex
• CAS rejects challenge based on argument that IAAF’s procedures were
inconsistent with criteria for sound regulatory policy making
• CAS holds that regulation is necessary to protect female athletes without
DSD from unfair competition from female athletes with DSD
• CAS holds that regulation is proportionate, having regard for side effects

14. Conclusion of Semenya panel
• IAAF argues that DSD women with 5-ARD condition are biologically
indistinguishable from males without DSD
• Panel rejects label of “biological males” in favor of focus on whether “magnitude of
advantage is capable of subverting fair competition” [s201]
• Rejects claim of inadmissibility of scientific studies based on examination of
blood provided for doping purposes
• Finds preponderance of evidence supports claims that DSD athletes have
high levels of testosterone in male range, and this results in “significantly
enhanced sports performance” [s203]
• Emphasizes huge disproportion of female athletes with 5-ARD among elite athletes
• Did panel find IAAF met burden of proof required by Chand?

15. Further questions
• Key purpose [s.205] to protect “individuals” from having to compete
against other “individuals” who “possess certain physical traits that
create such a significant performance advantage that fair competition
between the two groups is not possible.”
• If this really is IAAF’s purpose, then why not offer separate competitions re
height/weight, as in wrestling or boxing? Why is it unfair for Francine
Nyonsaba to have to run the 800m against Caster Semenya, but ok to deprive
women who are under 5’5” to compete in the hurdles?
• Are there different considerations involved in less elite competitions,
such as college or high school athletics?