A/HRC/44/26
of most international federations provide for the internal resolution of disputes, with appeals
permitted exclusively to the Court of Arbitration for Sport. Therefore, if national federations
and their athletes, among others, wish to be recognized participants in their respective sport,
they must generally agree to forego recourse to national courts in favour of private arbitration
before that Court. Such mandatory arbitration shields the global sports system from
regulation by national legal systems, which is where human rights are typically protected. 87
44.
Instead, the primary default rules applied in appeals to the Court of Arbitration for
Sport are the relevant sport regulations.88 Neither these regulations nor the statutes of sport
governing bodies include human rights norms and standards as binding sources of law for
adjudication. While the Olympic Charter and the statutes of many international federations
contain a commitment to non-discrimination,89 most do not contain a broader commitment to
respecting the full range of human rights of athletes. 90
45.
As a result, consideration of human rights norms and standards in the resolution of
sport disputes is limited. In Caster Semenya’s case, the panel of the Court of Arbitration for
Sport acknowledged that the regulations violated domestic and international human rights
laws. It also noted the amicus curiae submission from United Nations Special Rapporteurs
to that effect, as well as expert opinion evidence indicating the likelihood that the regulations
would be found to breach the national laws of several specific jurisdictions. The panel
accepted that there were important rights to equality and freedom from discrimination,
including in sport, and that those rights found reflection in an array of domestic and
international human rights instruments. The expert opinions could not, however, help to
resolve what it viewed as a case of “conflicting rights” (between female athletes with and
without certain variations in sex characteristics), which required “careful analysis of
questions of necessity, reasonableness and proportionality”. The panel noted the regulations
could be unenforceable in or contrary to the domestic law of different national jurisdictions,
but considered it would be ultimately for the courts in those jurisdictions to make such
determinations.
46.
Nonetheless, IAAF asserts that the Court of Arbitration for Sport “is competent to rule
on all legal claims, including human rights claims”, and that therefore its decision in the
Semenya case “should be respected and enforced by the national courts”.91 For this reason,
IAAF maintains that it “would defend any claim that was made in any national or
international forum … (including if necessary on jurisdictional grounds)”. 92 This type of
position, combined with the limited and inconsistent application of international human
rights norms and standards to disputes before the Court of Arbitration for Sport and the fact
that most Court arbitrators lack human rights expertise, 93 poses a serious challenge to access
to effective remedies for athletes whose human rights are alleged to have been violated.
47.
Decisions of the Court of Arbitration for Sport may be appealed only to the Swiss
Federal Tribunal. The only substantive ground for setting aside an arbitral award before the
Tribunal is a breach of Swiss public policy, meaning the award “disregards the essential and
broadly acknowledged values which, according to prevailing views in Switzerland, should
constitute the basis of any legal order”.94 The prohibition of discriminatory measures is one
substantive policy recognized by the Tribunal. 95 Other national courts may also refuse to
recognize and enforce an arbitral award if doing so would be contrary to the public policy of
that State,96 which may include certain fundamental human rights. Such a decision, however,
87
88
89
90
91
92
93
94
95
96
12
Findlay, “Accountability in the global regulation of sport”, p. 69.
Court of Arbitration for Sport, Code of Sports-related Arbitration, rule 48; see also rule 45.
See, for example, fundamental principles 4 and 6 of the Olympic Charter.
IAAF has explicitly denied that it is bound by international human rights instruments because it is
“not a public authority exercising state powers, but rather a private body exercising private
(contractual) powers” (www.worldathletics.org/news/press-release/iaaf-letter-iwg-wsi-iapesgw).
See www.worldathletics.org/news/press-release/questions-answers-iaaf-female-eligibility-reg.
Ibid.
John G. Ruggie, “‘For the game. For the world.’ FIFA and human rights” (Cambridge, Massachusetts,
Harvard Kennedy School, 2016).
Switzerland, A. v. Z., FIFA and X., Case No. 4A_304/2013, judgment of 3 March 2014, sect. 5.1.
Ibid.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, article V (2) (b).
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