Caster Semenya Decision Reshapes Standard of Review in Sports Arbitration
Overview
A ruling from Europe’s top human rights court has brought renewed attention to Caster Semenya’s long-running legal proceedings concerning World Athletics’ sex eligibility regulations, which limit the participation of athletes with Differences of Sexual Development (“DSD”) in certain events. In its decision, released on July 10, 2025, the European Court of Human Rights (“ECHR”) held that Switzerland’s Federal Supreme Court (“FSC”) failed to provide Ms. Semenya with a fair hearing, thereby violating Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights (the “Convention”).
The ECHR considered several additional complaints under the Convention – namely, the right to respect for private life (Article 8), the right to an effective remedy (Article 13) and prohibition of discrimination (Article 14) but found them inadmissible as they fell outside the scope of Switzerland’s jurisdiction. While the judgment does not suspend World Athletics’ rules, it marks a significant procedural milestone in Ms. Semenya’s case and may provide a foundation for future legal challenges in Swiss courts or other international forums.
Underlying Facts and Procedural History
Ms. Semenya is a middle-distance runner and two-time Olympic gold medallist in the women’s 800-metre event. She was born with a condition known as DSD, which results in naturally elevated testosterone levels. In 2018, World Athletics introduced Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the “DSD Regulations”), currently in its third version as of July 31, 2024, which requires certain DSD athletes to reduce their testosterone levels in order to be eligible to compete in a female classification of international events from 400 metres to the one mile. Ms. Semenya refused to undergo hormone suppression treatment and has been barred from competing in her preferred event since the regulations came into effect.
In 2018, Ms. Semenya filed a request for arbitration with the Court of Arbitration for Sport (“CAS”) in Lausanne, Switzerland, where she challenged the DSD Regulations. Under the rules of international athletics, the CAS has mandatory and exclusive jurisdiction over disputes of this kind. Ms. Semenya argued that the DSD Regulations were discriminatory and infringed on her rights as an athlete. The CAS acknowledged that the rules were indeed discriminatory but nonetheless upheld them on the grounds that the discrimination was a necessary, reasonable and proportionate means of achieving World Athletics’ objective of preserving the integrity of female athletics.
Ms. Semenya appealed the CAS decision to the FSC, seeking to have the award set aside. She argued, among other grounds, that the decision violated Swiss public policy under section 190(2)(e) of the Federal Act on Private International Law, including her fundamental rights to non-discrimination and human dignity. However, the FSC dismissed the appeal, finding that the award was not incompatible with public policy.
Having exhausted her legal options in Switzerland, Ms. Semenya brought an application before the ECHR. While the case was formally against Switzerland – not World Athletics – it allowed Ms. Semenya to challenge how the Swiss courts handled her claims, particularly in relation to her human rights. This led to the Grand Chamber of the ECHR’s recent ruling, which focused on the fairness of those earlier proceedings.
ECHR Decision
The Grand Chamber held, by a 15-2 majority, that Switzerland violated Ms. Semenya’s right to a fair hearing under Article 6 § 1 of the Convention. The court found that a “particularly rigorous examination” was required in her case for three reasons:
- the CAS’s mandatory and exclusive jurisdiction had been imposed by a private sporting body rather than by law;
- the dispute concerned civil rights; and
- the rights at issue were recognized as fundamental under Swiss law.
As a result, the Grand Chamber made it clear that the Swiss courts cannot treat CAS awards as if they were commercial arbitration decisions and that the scrutiny on appeal must be deeper and more attuned to the real-world impact on the individual. Further, the requirement for “particular rigour” is necessary because of the structural imbalance between athletes and the sporting bodies that regulate their participation.
Given the significance of these rights and the lack of effective judicial scrutiny – particularly due to the Swiss court’s restrictive interpretation of public policy – the ECHR concluded that Switzerland had not fulfilled its obligation to ensure a fair hearing.
Notably, the ECHR dismissed the remainder of Ms. Semenya’s application as inadmissible. Her claims under Article 8 (right to respect for private life), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination) were found to fall outside Switzerland’s jurisdiction. The court reasoned that Ms. Semenya resides in South Africa and had no personal or territorial link to Switzerland in relation to those complaints. It also emphasized that Switzerland played no role in drafting or applying the DSD Regulations, which were issued by World Athletics, a private sports organization based in Monaco. As the alleged rights violations were not attributable to the Swiss state, the ECHR found no jurisdictional basis to consider those parts of the application. The Grand Chamber awarded Ms. Semenya €80,000 (approximately C$128,700) in costs and expenses.
In a joint partly dissenting opinion, four judges argued that the court should have gone further and drawn “substantive conclusions” under the other Convention rights raised, particularly Articles 8 and 14. They emphasized that the DSD Regulations specifically targeted Ms. Semenya and had a substantial impact on her bodily integrity and professional career. In their view, Switzerland’s central role in hosting the CAS and its exclusive legal review through the FSC was sufficient to establish jurisdiction. By declining to examine these rights, the dissenting judges warned that the ECHR risked leaving athletes subject to international sports arbitration without meaningful human rights protection.
What’s Next
The ECHR’s decision does not overturn the World Athletics regulations that have effectively barred Ms. Semenya from competing in the women’s 800 metres, ending her career. Instead, the judgment is likely to prompt renewed proceedings before the FSC, which may be asked to reassess its earlier decision in light of the ECHR’s findings. The case will likely be closely watched as other sports introduce or consider regulations governing eligibility for events. The ruling will no doubt prompt broader discussions about the human rights responsibilities of private sporting bodies and the legal oversight of international sports arbitration systems.
The Sports, Media & Entertainment Group and the Labour & Employment Group at Aird & Berlis LLP will continue to monitor Ms. Semenya’s case, as well as related legal proceedings and developments. For any inquiries, please contact the authors or a member of the Sports, Media and Entertainment Group.
