Sport Arbitration and Human Rights: An Overview of the Semenya Judgement Before the European Court of Human Rights

Sports contracts between sport governing bodies (SGBs), such as FIFA and the International Olympic Committee (IOC), and athletes typically contain, or refer to, an arbitration clause that provides for resolution of disputes initially at a tribunal established by the SGB in question. These contracts start off locally, with the athlete’s registration in a club and the club’s incorporation in a national sport federation (NSF), and end up becoming transnational with the incorporation of NSFs into SGBs. Its award may be appealed to the Court of Arbitration for Sport (CAS) or CAS may hear the dispute at first instance. The award produced by CAS is final, and just like other arbitral awards, can only be challenged in set aside (annulment) proceedings before the Swiss Federal Supreme Court, which serves as competent court for arbitral proceedings in Switzerland, where the CAS is located. This arbitral route was applied in the Semenya case, albeit the buck did not stop with the Swiss Court. The Swiss Court’s narrow conception of public policy, which effectively came down to whether the applicant was or was not offered access to remedies (among others), meant that the only recourse for the applicant was the European Court of Human Rights (ECtHR). The ECtHR relied on its extensive caselaw whereby arbitration is not immune from fundamental human rights guarantees and that the pursuit of sporting fairness by SGBs and CAS did not entail a violation of the right of access to justice. In short, this is a serious blow to the so-called lex sportiva, which suggests that because of the regulatory autonomy enjoyed by SGBs, their internal instruments (namely rules, regulations and institutional instruments adopted by the organs of SGBs) are not subject to external judicial review.