Case of Semenya v Switzerland (Application No.10934/21) (ECtHR Grand Chamber)
Introduction
On 10 July 2025, the Grand Chamber of the European Court of Human Rights delivered its judgment in Semenya v Switzerland. The case arose from the legal challenge by Olympic champion Caster Semenya to World Athletics’ regulations (“the DSD Regulations”)requiring athletes with differences in sex developments, also known as ‘intersex’ athletes, to lower their testosterone levels in order to compete in the female category of certain events.
Importantly, the Applicant’s case in the ECtHR was not against World Athletics (since World Athletics is not an entity directly subject to the Convention) but against Switzerland for the role of its Federal Supreme Court (“SFSC”) in upholding the arbitral award of the Court of Arbitration for Sport (“CAS”). The case therefore highlights the complexities involved in protecting human rights in the realm of international sports arbitration.
The Grand Chamber’s judgment, while ostensibly narrow in some respects, affirms the importance of Article 6 ECHR safeguards and arguably broadens the scope of its protection, particularly where fundamental rights are concerned in compulsory arbitration.
Facts
The Applicant, Caster Semenya, is an elite South African middle-distance runner, who has won multiple Olympic, World, Commonwealth, and regional championship titles. The Applicant complained that by the DSD Regulations, she was obliged to reduce her natural testosterone levels in order to compete in international events. The Applicant therefore challenged the DSD Regulations before the CAS, which was rejected in April 2019. The CAS award held that the DSD Regulations, though prima facie discriminatory, were justified as necessary, reasonable, and proportionate in view of the Panel’s findings, including that athletes subject to the Regulations had a “significant performance advantage” over other female athletes.
The Applicant appealed unsuccessfully against the CAS award to the SFSC. The grounds upon which the SFSC may overturn a CAS award are exhaustively set out in section 190(2) of the Federal Act on International Private Law (“PILA”). Under this provision, substantive review of international arbitral awards is limited to where the award is incompatible with public policy (‘ordre public’), which has been interpreted very restrictively. The SFSC, referring to its own case law, observed that:
“Incompatibility of the award with public policy, as provided for in section 190(2)(e) PILA, is a notion that is even more restrictive than that of arbitrariness… According to the case-law, a decision is arbitrary where it is manifestly unjustified, it seriously undermines a norm or a clear and undisputed legal principle, or offends in a shocking manner against a sense of justice and equality; it is not sufficient that another solution may appear possible or even preferable. For there to have been incompatibility with public policy, it is not sufficient that evidence was incorrectly assessed, that a factual finding was manifestly false or that a legal rule was clearly breached…It is extremely rare for an international arbitral award to be set aside on this ground.”
In May 2019, the SFSC held that this high threshold had not been met.
In February 2021, the Applicant brought a challenge in the ECtHR against Switzerland alleging that by the SFSC’s decision, her rights under Articles 3, 6, 8, 13, and 14 had been violated. In July 2023, the Third Chamber found a violation of Article 14 in conjunction with Article 8, and Article 13. It rejected the Applicant’s complaint under Article 3 and did not give a separate ruling on Article 6(1). The matter was referred to the Grand Chamber by request of the Swiss Government in November 2023.
The Judgment
Jurisdiction
The Applicant, being a South African national residing in South Africa, did not have a personal link with Switzerland. Switzerland did not draft or apply the DSD Regulations, which were issued by World Athletics, a Monegasque private law association. The link between Switzerland and the Applicant’s complaints was therefore limited to the fact that the CAS has its seat in Lausanne, and that the SFSC had heard the appeal against the CAS award.
The Swiss Government accepted that the Court had jurisdiction to consider the complaint under Article 6 ECHR given Switzerland’s supervision of the CAS arbitration. The Grand Chamber unanimously concurred on the basis that the Applicant had brought an action in Switzerland which raised a dispute concerning the Applicant’s civil rights within Article 6.
However, the Grand Chamber held by a majority that the Applicant’s complaints in respect of Articles 8 and 14 did not fall within Switzerland’s jurisdiction. The complaints in respect of Articles 8 and 14 plainly did not fall within Switzerland’s territorial jurisdiction, and the usual exceptions for extraterritorial jurisdiction did not apply. The Grand Chamber found that the Third Chamber’s approach to the issue of Switzerland’s jurisdiction in respect of Articles 8 and 14 was “not based on any case-law precedent”. It distinguished the position in respect of Article 6 on the basis that:
“Article 6(1), concerning the right to a fair hearing, differs from most other provisions of the Convention – in particular Articles 8 and 14, in issue in the present case – in that it relates exclusively to procedural rights”,
As such, the bringing of a civil action within the State’s provision for such proceedings imposed an obligation to respect procedural rights.
In contrast, the fact that the SFSC had examined the Applicant’s appeal was not itself sufficient to establish jurisdiction in respect of Articles 8 and 14. The Grand Chamber noted the Third Chamber’s reasoning that if jurisdiction in respect of Articles 8 and 14 were not found, it would risk barring access to the Court for the entire category of professional female athletes, contrary to the spirit and purpose of the Convention. However, the Grand Chamber considered that that was not sufficient to establish a jurisdictional link to Switzerland. To find such jurisdiction would be:
“…tantamount to expanding the scope of extraterritorial jurisdiction and departing from established principles under Article 1”.
Article 6
The Applicant’s main complaint in respect of Article 6 was that where the appeal before the SFSC concerned substantive violations of the Convention ab initio, and where it was compulsory for the action to be brought before CAS, the Convention required the SFSC to be in a position to review the facts and the law of CAS’s findings. The Applicant stressed that the SFSC had failed to emphasise the need for sound evidence to justify the DSD Regulations, and had limited itself to endorsing the CAS’s conclusions on the basis of compatibility with public policy. The Swiss Government, on the other hand, argued that the limited review of international arbitral awards was an internationally recognised standard in arbitration, and that there had been a careful and genuine weighing-up by both the SFSC and the CAS of all relevant factors.
The Grand Chamber, by a majority, found a violation of Article 6(1). The Court held that the fact of private arbitration is not sufficient to violate Article 6(1). It reiterated the benefits of procedural uniformity and legal certainty which were facilitated by the swift and inexpensive settlement of disputes by a specialised body, particularly in a professional sports context with an international dimension.
However, the Grand Chamber emphasised that sports arbitration occurs in the context of a “structural imbalance” between sportspersons and regulating bodies, where regulating bodies held significant powers to regulate individuals’ activity and impose restrictions on the exercise of their rights. In such circumstances, the Grand Chamber held that:
…even more than where arbitration is required by law, in a situation where the CAS’s exclusive jurisdiction for resolving a dispute between a sports organisation and a sportsperson has been imposed on that person, he or she must be able to benefit from the safeguards provided for by Article 6(1) of the Convention.
The Grand Chamber held that Article 6(1) required a “particularly rigorous examination” by the SFSC in circumstances of effectively compulsory arbitration to determine the fundamental rights of a sportsperson. It concluded that this rigorous examination had not been undertaken by the SFSC. The Grand Chamber highlighted that the CAS award had “left open” certain questions on proportionality (despite the CAS having ruled that the DSD Regulations were proportionate when viewed in totality). For example, the CAS had raised concerns regarding the risk of large fluctuations in testosterone levels despite consistent hormone treatment, which could result in an athlete being disqualified in spite of her best endeavours to adhere to the Regulations. Despite the CAS noting these “misgivings”, the Grand Chamber held that the SFSC “did not, however, sufficiently act on the doubts expressed”. As such, the Grand Chamber concluded that:
The review of the applicant’s case by the Federal Supreme Court, not least owing to its very restrictive interpretation of the notion of public policy, which it also applied to the review of arbitral awards by CAS, did not satisfy the requirement of particular rigour called for in the circumstances of the case.
The Grand Chamber awarded €80,000 to the Applicant for Switzerland’s violation of Article 6(1).
Comment
The controversy and complexity surrounding this decision is demonstrated by the fact that the Grand Chamber’s decision has been subject to criticism on the one hand, for not going far enough (see the Joint Opinion of Judges Šimáčková, Bošnjak, Zünd, and Derenčinović, who felt that the Grand Chamber should have also found violations of Articles 8 and 14) and on the other, for going too far (see the Joint Opinion of Judges Eicke and Kucsko-Stadlmayer, who felt that the Grand Chamber should not have found a violation of Article 6(1)).
It is worth noting that the majority of the intervening parties considered that violations of Articles 8 and 14 should have been found by the Court. This raises interesting issues about how Convention rights can be applied and protected in international sports arbitration, which involve multi-tiered proceedings where (limited) Convention obligations bind only the certain parties – in this case, the appeal court. As noted in the judgment, Switzerland did not and could not have played a role in drafting the DSD Regulations, and the degree to which Convention principles apply to World Athletics and other regulating sports bodies remains an open question. One might have some sympathy for the Swiss Government had it been found to have violated Articles 8 and 14 in circumstances where its role was limited to restrictive review of the CAS award. It may be that the way forward requires Convention principles to be more deeply entrenched in lex sportiva, so that these rights can be protected at all levels of decision-making in sports.
In any event, the decision shows a clear re-emphasis on the importance of Article 6(1), and sends a message to the SFSC that too deferential an approach to review of arbitral awards will not suffice. It is unclear whether the Grand Chamber thinks that the breach of Article 6(1) stems from the scope of the SFSC’s limited review powers under s.190(2) PILA , or if the problem lay in the SFSC’s interpretation or exercise of those powers in this case. There are indications in the judgment that the violation was found as a result of all three aspects of the SFSC’s review.
Further, in reading the judgment, one might sense that the Grand Chamber’s decision was driven by its implicit opinion that the DSD Regulations should have been found unlawful. One might wonder what ‘particularly rigorous examination’ or ‘acting sufficiently’ on the doubts expressed by the CAS would look like if the matter was revisited by the SFSC, apart from simply overturning the award. The ambiguity surrounding what Judges Eicke and Kucsko-Stadlmayer describe as the “novel requirement” of ‘in-depth judicial review’ and ‘particularly rigorous examination’ risks such examination becoming a thinly veiled merits review, which arguably expands the scope of Article 6(1) significantly. A related concern is whether and how the Grand Chamber’s decision will be applied in areas beyond international sports arbitration, to other challenges to arbitral awards relating to ‘civil rights’. The wider implications of this decision thus remain to be seen.
Allyna Ng is a Barrister at 1 Crown Office Row
