The Court of Arbitration for Sport under Human Rights Scrutiny: The Role of the Swiss Federal Tribunal and the European Court of Human Rights

Abstract

This chapter sets out to map how human rights (and more specifically, the ECHR) have been applied by the Swiss Federal Tribunal (SFT) and the European Court of Human Rights (ECtHR) to the CAS and its awards. It is based on a comprehensive review of the decisions of both courts related to the CAS. In doing so, the chapter traces the morphing role of the ECHR as a normative resource to check the CAS’ judicial authority. Section 2 is dedicated to analyzing more than 20 years of the SFT’s case law on appeal against CAS awards, and to showing how the supreme court of Switzerland has been conferring (limited) relevance to the ECHR in the framework of this control. Section 3 provides an analysis of the more recent case-law of the ECtHR on the compatibility of the CAS and its awards with the ECHR.

1 Introduction

The Court of Arbitration for Sport (CAS) is a central institution for the transnational governance of international sports. It is the private judicial body in charge of deciding the most important disputes involving international sports and, in particular, the Olympic Movement.¹ CAS panels are tasked, in particular, with the responsibility to review the final decisions of Sports Governing Bodies (SGBs), which have introduced CAS arbitration clauses in their statutes, licenses or entry forms. While it is formally recognized as an arbitral tribunal based in Lausanne, Switzerland, and run by a Swiss foundation, the International Council of Arbitration for Sport (ICAS), in practice, its jurisdiction tends to be imposed through the private and often monopolistic power of SGBs.² Unlike commercial arbitration, CAS arbitration (at least in its appeal arbitration procedure)³ is not based on the consent of the parties to the arbitral process, but de facto imposed by one party, the governance entity, onto the other. As will be discussed later in the chapter, this idiosyncrasy plays an important role in determining how the European Convention for Human Rights (ECHR) applies to, and at, the CAS.

Another specificity of the CAS is connected to the applicable law in CAS appeal arbitration proceedings. Indeed, the CAS panels primarily apply the rules and regulations of SGBs when deciding disputes, and have recourse to state law (most frequently Swiss law, as the country of the seat of the SGB) only subsidiarily.⁴ This does not mean that the CAS never considers other types of laws,⁵ but in general its decisions are based primarily on the private regulations of SGBs and subsidiarily Swiss law as interpretative support when the former are unclear or incomplete. In turn, this raises the question of the human rights compatibility of CAS awards. There is the risk that individuals forced to submit their cases to the CAS could be deprived of their ability to argue the incompatibility of the decisions of SGBs with human rights. In fact, the CAS is not ignorant of the existence of the ECHR, nor of its potential relevance for the disputes it has to decide.⁶ Nonetheless, until now, it has rarely referred to human rights in its decisions and seldomly considered their application in a comprehensive fashion. It has concluded that a decision or regulation of an SGB violated the ECHR only in exceptional circumstances.⁷ In short, while present in rare instances, human rights remain sidelined at the CAS, and impotent as a legal argument to challenge the decisions or regulations of the SGBs.

In this context, this chapter sets out to map how human rights (and more specifically, the ECHR) have been applied by the Swiss Federal Tribunal (SFT) and the European Court of Human Rights (ECtHR) to the CAS and its awards. It is based on a comprehensive review of the decisions of both courts related to the CAS. In doing so, the chapter traces the morphing role of the ECHR as a normative resource to check the CAS’s judicial authority. Section 2 is dedicated to analyzing more than 20 years of the SFT’s case law on appeal against CAS awards, and to showing how the supreme court of Switzerland has been conferring (limited) relevance to the ECHR in the framework of this control. Section 3 provides an analysis of the more recent case-law of the ECtHR on the compatibility of the CAS and its awards with the ECHR.

2 The SFT’s Handling of Human Rights Claims with Respect to CAS Awards

This section gives an overview of the jurisprudence of the SFT related to human rights claims in sports arbitration matters, with a focus on the ECHR, from 2000–the present (July 2023).⁸

2.1 Setting the Scene: SFT’s Review of International Arbitral Awards

Before the SFT, the impact of human rights on disputes decided in CAS arbitration is modulated by the limitative list of grounds available for setting aside an international arbitral award, as well as the strict requirements on pleadings applicable in proceedings before Switzerland’s Supreme Court. The grounds that can be invoked in an application to set aside an international arbitral award are listed in Art. 190(2) of the Swiss Private International Law Act (SPILA), in Chapter 12, devoted to international arbitration. An arbitral award may be set aside only:

• a. where the sole member of the arbitral tribunal was improperly appointed or the arbitral tribunal improperly constituted;

• b. where the arbitral tribunal wrongly accepted or declined jurisdiction;

• c. where the arbitral tribunal ruled beyond the claims submitted to it, or failed to decide one of the claims;

• d. where the principle of equal treatment of the parties or their right to be heard in an adversary procedure were violated;

• e. where the award is incompatible with public policy.⁹

Requirements on substantiation are high (Art. 77(3) Federal Tribunal Act, LTF).¹⁰ The applicant must outline precisely how the arbitral tribunal breached one of the grounds listed, and, especially for claims of breach of public policy aimed at the merits, how this affected the outcome reached by the arbitrators.¹¹ According to the description traditionally provided in SFT decisions, an award is only in breach of public policy “if it disregards fundamental principles of law and is therefore as such irreconcilable with the essential, generally recognised system of values, that should form the foundation of any legal order according to the views prevailing in Switzerland”.¹² It is apparent from this definition that the ground of public policy overlaps with essential values protected by human rights instruments, and thus forms the primary juncture between the Swiss system of review of international arbitral awards and the protection of human rights.

Over the past two decades, the SFT has repeatedly faced arguments by applicants that the list of grounds should either be expanded or interpreted more generously in the context of sports arbitration. However, the SFT has thus far refused to extend its review, stressing that the restrictions “apply to all international arbitration proceedings, and thus equally to the domain of sport”.¹³ Specifically, the SFT judges have systematically rejected arguments that would lead to a notion of public policy specific to sports arbitration, a recognition of a lex sportiva.¹⁴

Prior to the ECtHR’s Semenya v. Switzerland decision, the SFT assessed on several occasions the modalities of review of CAS awards, finding these modalities compliant with the ECHR in light of ECtHR jurisprudence in arbitration matters.¹⁵

With respect to human rights instruments, it is foundational SFT case law that these instruments cannot be directly relied upon to challenge an arbitral award. Specifically, neither the safeguards of the ECHR, nor of the Swiss Constitution, can be invoked autonomously, nor do they eo ipso amount to a breach of one of the listed grounds (see next sub-section). The extent to which the decision rendered by the ECtHR in Semenya v. Switzerland might warrant future adjustments to that jurisprudence is discussed in this chapter’s conclusion.

2.2 Human Rights Jurisprudence Leaking Into SFT Decisions

In spite of the SFT’s refusal to expand its scope of review, human rights, and specifically the ECHR, can and do play a role in its decisions. Indeed, they may be taken into consideration to concretize the concepts involved in the grounds listed in Art. 190(2) SPILA, in particular procedural or substantive public policy.

There has been a noticeable increase in recent years of occurrences in which the SFT called on the jurisprudence of the ECtHR in applications to set aside a CAS award. This increase correlates with the significant rise in sports arbitration matters adjudicated by the ECtHR since 2018, probably compounded by the fact that ECtHR rulings, with the exception of the lack of public hearing at the CAS sanctioned through Mutu and Pechstein, have so far supported the features of the Swiss system, thus forming welcome references for countering subsequent attacks. Prior to 2019, references to the jurisprudence of ECtHR in arbitration matters remained exceptional, and not specific to rulings of the ECtHR regarding sports matters.¹⁶ Nevertheless, some SFT decisions included extensive references to scholarly writings on the ECHR and arbitration.¹⁷

So far, most references to ECtHR jurisprudence in SFT decisions appear inserted with the purpose of countering challenges to the SFT’s limited power of review, or confirming the status of CAS as institutionally independent and impartial. It thus comes as no surprise that Mutu and Pechstein is the most frequently cited ECtHR decision [Table 1]. The decisions are also used to highlight the ECtHR’s recognition of the legitimate interests in regulating sports in major areas touching on fairness and health, in particular the fight against doping, and of the appropriateness of a uniform dispute resolution system in international sports.

Table 1 References to ECtHR Case Law in SFT Decisions related to Sports Arbitration since 2019

It remains to be seen how the SFT will address the ECtHR Semenya ruling (see Sect. 3.3.2), which is the first to truly encroach upon Switzerland’s margin of appreciation with respect to the depth of control that the SFT should exert over the merits of a CAS award. Undoubtedly, the precedent will be used in the near future in applications to set aside CAS awards, forcing the SFT to take a position on that matter. In fact, in high-profile cases over the past years, applicants seem to routinely add arguments under the ECHR and/or Swiss Constitution when they invoke a breach of public policy under Art. 190(2) SPILA.

In Sun Yang v. FINA, the swimmer who had been sanctioned for refusing a doping test, under the heading of breach of substantive public policy, alleged a breach of several substantive safeguards of the ECHR (Art. 8), of UNO Pact II (17(1)) and of the Swiss Constitution (10(2) and 13), arguing that the award was in breach of his private life and his right to health.¹⁸ In Leeper v. World Athletics (IAAF), the athlete Blake Leeper who was refused participation in athletic competitions for excessive height of the blade prosthesis he had elected to compete with, equally included in his argument related to substantive public policy the claim of discrimination within the meaning of Art. 14 ECHR, as well as incompatibility with human dignity.¹⁹ In Semenya v. World Athletics, the SFT was asked to look at the matter in terms of prohibition of discrimination and human dignity as components of substantive public policy.²⁰ In ROC v. IPC, regarding the ban of Russian athletes from participating in the Paralympic Games, the Russian Olympic Committee invoked various rights in relation to protection of disability (Art. 8(4) Swiss Constitution, UN Convention on the Rights of Persons with Disabilities).²¹

Needless to say, the arguments were rejected in all instances. At this point, one may suspect that most claims based on the ECHR are brought in strategically before the SFT to anticipate a subsequent request before the ECtHR, and avoid risk of forfeiture under Art. 35 ECHR for not having made the relevant arguments before national courts, rather than in hope of a genuine prospect of succeeding before the SFT. The SFT judges themselves describe the refusal to treat safeguards under the Swiss Constitution or the ECHR as autonomous grounds for challenging an international award as ‘established jurisprudence’ (ständige Rechtsprechung).²² However, according to the federal judges, “the approach taken by the SFT does not have the effect of depriving athletes of the opportunity to complain of a breach of fundamental safeguards of the ECHR, since these can, indirectly, be taken into account to concretize the safeguards resulting from Art. 190(2) SPILA”.²³ Decisions of the SFT have been remarkably consistent in that regard from 2000–2023 [see Table 2].

Table 2 Refusal to consider claims based on ‘human rights’ instruments as standalone grounds

Where the applicants do not attempt to invoke human rights safeguards as autonomous grounds,²⁴ arguments have also been put forward under the ground of improper composition of the arbitral tribunal (Art. 190(2)(a) SPILA),²⁵ and of violation of the right to be heard (Art. 190(2)(d) SPILA).²⁶ However, a majority of pleadings invoking provisions of the ECHR are made under the heading of public policy (Art. 190(2)(e) SPILA), in its procedural²⁷ or substantive aspect.²⁸ The following sub-sections hence focus on human rights claims in the context of public policy.

2.3 Procedural Requirements of Fair Trial According to Art. 6 ECHR

The SFT has variously insisted that the fair trial requirements of the ECHR (specifically Art. 6 ECHR) do not rule out the institution of arbitral tribunals to adjudicate certain disputes among private parties,²⁹ adding that the ECtHR itself recognizes that there is a legitimate interest for disputes in professional sport, especially those that have an international dimension, to be submitted to a specialized judicial body that can render a decision in a time- and cost-efficient manner.³⁰

Decisions pre-dating the ECtHR ruling in Mutu and Pechstein lacked a clear-cut, consistent, line of reasoning with respect to the relevance of Art. 6 ECHR in challenges against CAS awards. The position in sports arbitration matters appeared to follow the parallel jurisprudence in commercial matters that parties may choose to bypass state courts and assign the resolution of their dispute to an arbitral tribunal, and that making that choice precludes subsequent complaints to the SFT that the arbitrators breached the ECHR.³¹ In earlier decisions, arguments relying on Art. 6 ECHR were also brushed away with generic statements whereby the provision “is not applicable to voluntary arbitration proceedings”,³² or “Art. 6(1) ECHR does not pertain to the proceedings before an arbitral tribunal”,³³ although decisions already made the (theoretical) concession that the principles underpinning Art. 6 ECHR may be used to concretize the grounds listed in Art. 190(2) SPILA.³⁴ In short, reliance on Art. 6 ECHR safeguards was curtailed by the SFT treating submission to CAS arbitration as ‘voluntary’ in nature.

The landmark decision Cañas v. ATP in 2007—in which the SFT struck down a waiver of the right to challenge a CAS award before the SFT, ruling that such a waiver cannot, in principle, be opposed to an athlete in disciplinary proceedings, even when the waiver satisfies the formal requirements of Art. 192(1) SPILA – is the only decision in which the SFT observed sua sponte that a waiver of fair trial safeguards in a situation in which “an athlete had no other choice than to accept the waiver to be authorised to participate in competition would also seem questionable under the angle of Art. 6(1) ECHR”.³⁵ While this observation seems to have carried no repercussions for subsequent SFT decisions it contained the germs of rationales that led to the ECtHR findings in Mutu and Pechstein.

After the ECtHR decision in the Mutu and Pechstein case, one can hardly question that CAS panels, respectively CAS in combination with the SFT, are required to fulfil the requirements of Art. 6 ECHR in extenso whenever submission to arbitration (e.g., an athlete agreeing to an international federation’s regulations) must be regarded as ‘forced’; such as when there is no “free, lawful and unequivocal” consent to arbitration (see Sect. 3.2.1).³⁶

Nevertheless, the Mutu and Pechstein decision appears to have had little tangible impact on the jurisprudence of the SFT overall, at least insofar as altering outcomes of CAS awards or sanctioning the CAS in procedural matters is concerned.³⁷ The SFT maintains, in the post-Mutu and Pechstein era, that Art. 6 ECHR is no autonomous ground of challenge.³⁸ In particular, a breach of the ECHR “is not necessarily to be equated per se to a contradiction with public policy within the meaning of Art. 190(2)(e) SPILA”.³⁹ It is therefore incumbent on the party to show how the alleged violation of Art. 6 ECHR is incompatible with procedural public policy.⁴⁰

If anything, the ECtHR ruling seems to have strengthened the CAS’ position in the jurisprudence of the SFT, in that it ‘crowned’ the CAS as an independent and impartial tribunal established by law, and gave the SFT support to counter subsequent attacks on the CAS institution.⁴¹ Thus, challenges seeking to rely on the dissenting opinion in the ruling to challenge selected aspects of the CAS mechanics (modalities of appointment of the panel chair in CAS appeal arbitration) have been categorically dismissed with the argument that, “the CAS’ independence was definitively confirmed by the ECtHR”,⁴² so that it would be futile to “attempt to reopen the debate” on those questions.⁴³

Ironically, the only instance in which the Mutu and Pechstein ruling has been used to put boundaries on non-consensual arbitration concerns a commercial arbitration case, where the SFT, citing the ECtHR ruling, denied that a third party be bound by the arbitration clause based on a criterion ‘as blurry as’ (critère aussi flou que) their interest in the performance of the contract, considering that taking such a step would hardly be consistent with the ECtHR requirement of free, lawful and unequivocal consent.⁴⁴

If one takes a more granular look at recent SFT decisions, the sentiment is that the SFT has thus far been able to avoid elaborating on the implications of Art. 6 ECHR for sports arbitration after Mutu and Pechstein. Some arguments based on Art. 6 ECHR were dismissed due to the applicants seeking to put forward the provision as an autonomous ground, or failing to incorporate sufficient demonstration of breach of one of the grounds listed in Art. 190(2) SPILA.⁴⁵ In some instances, the SFT was able to circumvent the issue because the particulars of the dispute did not amount to a case of ‘forced’ arbitration,⁴⁶ or the case otherwise fell outside the scope of the ECHR.⁴⁷ In other instances, the applicants did not show (or did not argue), to the satisfaction of the federal judges, that they had been denied the benefit of a procedural safeguard and had made the argument in a timely manner in the proceedings.⁴⁸ Finally, in further instances the SFT deemed the argument in any event unfounded or misdirected based on a hypothetical application of Art. 6 ECHR,⁴⁹ or left the issue undecided since the CAS arbitrators had de facto considered the principles invoked.⁵⁰

The general takeaway from SFT jurisprudence since the ECtHR Mutu and Pechstein decision on matters related to fair trial and Art. 6 ECHR, is that the ECtHR ruling has had the paradoxical effect of supporting the Swiss system and the CAS institution, rather than of challenging it. There has yet to be a case in which the applicants obtained the setting aside of a CAS award based on the ECtHR ruling that CAS arbitration must fulfil the requirements of Art. 6 ECHR when it is to be regarded as ‘forced’.

2.4 Application of Substantive Safeguards of the ECHR

Beyond the fair trial requirements of Art. 6 ECHR, the SFT has been asked on various occasions to explore the extent to which the merits of a CAS award should be subjected to judicial scrutiny based on substantive human rights safeguards. This question is again entwined with the SFT’s interpretation of public policy. SFT jurisprudence acknowledges that claims directed at the substance of an international arbitral award are considered through an extremely narrow prism. One decision, in a commercial matter, recalled that a party who waived their right to access to court—a right that has both a constitutional (Art. 30 Swiss Cst) and a conventional (Art. 6 ECHR) basis—was entitled to expect an arbitral panel with sufficient independence and impartiality, and one that will respect the procedural agreement of the parties: “[I]t is only subject to this condition that one may confront them with an award that they will not truly be able to challenge on the merits, save from the very restrictive angle of substantive public policy”.⁵¹

Indeed, while the definitions of substantive public policy have varied in the jurisprudence of the SFT, and specifically depending on the language of the decision, broadly speaking, the assessment of a claim only breaches public policy when it “is in violation of fundamental substantive law principles, to an extent that is no longer compatible with the relevant legal order and system of values”.⁵² The SFT has repeatedly insisted that it would be impracticable to provide an exhaustive list of principles and rights covered by the concept of public policy.⁵³ A number of aspects are, however, categorically excluded, such as the interpretation of contracts, including sport governing bodies’ by-laws, erroneous application of rules of law, or evaluation of the evidence.⁵⁴

In particular, rules on the allocation of proof are not considered part of substantive public policy.⁵⁵ An extremely consistent line of jurisprudence in that regard relates to the functioning of the World Anti-Doping Code in its aspects of strict liability, fault, and related proof, in disciplinary doping cases initiated by private SGBs.⁵⁶ The SFT has repeatedly found that the rule, whereby doping is presumed to have occurred upon the reporting of a prohibited substance in an athlete’s sample, is not in breach of public policy.⁵⁷ More specifically, general principles derived from criminal law, such as the presumption of innocence, respectively in dubio pro reo, are irrelevant “within the realm of private law, including when the assessment is aimed at disciplinary measures of private sports associations”, and including when the measure is imposed by an association with a monopoly.⁵⁸ These private measures cannot be assessed under safeguards derived from the ECHR either.⁵⁹ The SFT has taken the same position on challenges related to the standard of proof applied,⁶⁰ as well as the absence of requirement of fault (Verschuldensprinzip), or the absence of requirement of performance enhancement.⁶¹ Arguments of this kind were described as “mere appellatory criticism of the decision of the CAS on the merits”.⁶² With respect to the disciplinary sanction, adequacy of the sanction to fault is an issue of appreciation, which the SFT cannot review, and does not belong to public policy.⁶³

In spite of this restrictive approach, SFT jurisprudence in matters of international sports subsumes under the heading of public policy a number of principles that are traditionally found in human rights instruments, although none have thus far led to setting aside a CAS award: prohibition of torture and inhuman treatments;⁶⁴ prohibition of forced labour;⁶⁵ human dignity;⁶⁶ abuse of rights;⁶⁷ protection of the incapacitated;⁶⁸ non-discrimination;⁶⁹ bribery;⁷⁰ and confiscatory measures.⁷¹ A further component of public policy that is frequently invoked and cited in recent decisions concerns personality rights under the Swiss Civil Code (Art. 27 et seq. CC). Given the broad contents attributed to personality rights in the context of elite sport, consideration of egregious breaches of personality opens a reasonable door for SFT judges to grant protection to individuals subjected to decisions of private sports federations (this will be expounded upon in the next section).

An additional difficulty that the application of substantive safeguards involves in the context of the regulation of international sports, is that it presupposes the horizontal application of human rights to international federations as private (non-state) entities. The Swiss legal system does not, as a rule, recognize the horizontal application of constitutional or conventional rights among private parties.⁷² This has led the SFT to question the relevance of substantive safeguards of the ECHR or the Swiss Constitution, “which first and foremost protect the individual towards the State”, where regulations or measures by private sports federations are at stake.⁷³ Contrary to what is often assumed, this is not to say that there is no jurisprudence of the SFT on arguments related to fundamental rights and principles in sports arbitration matters. Wherever possible, rather than to discard ex ante human rights claims, the SFT’s preference is to conduct the assessment and decide that no breach occurred, either obiter dictum, or in order to leave the issue of the horizontal application to private SGBs undecided.⁷⁴

In both Caster Semenya and Blake Leeper, the SFT thus expressed doubt as to whether the prohibition of discrimination should be covered by the restrictive notion of public policy when the alleged discrimination emanates from a private entity and affects relations among private parties.⁷⁵ In both cases, however, SFT judges explicitly refrained from further investigating that question, since they were able to reach the conclusion that the award did not, in casu, ratify a discrimination contrary to substantive public policy.⁷⁶ Even though the ECtHR, in the meantime, has deemed the depth of the SFT’s assessment for Caster Semenya insufficient (see Sect. 3.3.2), these examples show that the concept of public policy does not categorically prevent the SFT from conducting an appropriate assessment of human rights claims, provided that they are properly substantiated and submitted in due form and time.

Indeed, one justification that the SFT frequently advances for its restrictive approach to human rights, is that the arguments are far-fetched and poorly substantiated, so that the SFT has an easy task dismissing them. The SFT regularly highlights the fact that applicants put forward generic claims, without trying to argue how these would fit into the public policy ground, or without making a demonstration of how the relevant human rights safeguards have been breached in casu.⁷⁷ The generic character of the arguments proved fatal to the applicants’ case in several decisions, in which the argument amounted to little more than an enumeration of constitutional or ECHR provisions.⁷⁸ In some instances, the SFT commented on the boldness of the applicants invoking fundamental safeguards for their protection, for circumstances remote from the seriousness of the situations for which these fundamental safeguards were designed.

In a case relating to professional football, the SFT highlighted that the applicant was merely submitting to the SFT broad principles and reasoning of a theoretical nature, adding that, given the annual salary (1,140,000 EUR) at stake, invoking the prohibition of forced labour and human dignity with respect to that player appear “rather audacious”.⁷⁹ In another case, the judges called the description of a refusal by a sports association to contract, for a period of six months, with a professional player who breached its rules as representing ‘torture or inhuman or degrading treatment’ “manifestly frivolous”.⁸⁰

This overview shows that the concept of public policy could, in principle, leave ample latitude for the Swiss federal judges to incorporate human rights into their review, and intervene where necessary to sanction breaches of these rights without having to abandon their strict adherence to the limitative grounds of Art. 190(2) SPILA contemplated by the Swiss legislator. A legal conundrum to solve remains the applicability of human rights safeguards to private entities, such as international sports federations. While the ECtHR in Semenya v. Switzerland tackled the issue from the angle of the positive obligations of the Swiss state, the protection of personality under Swiss law offers another tool that is at the immediate disposal of the SFT, de lege lata, to protect individuals from intrusive regulations or measures in international sport.

2.5 Personality Rights as a Counterpart to Human Rights in Private Relationships

While human rights do not apply horizontally in Switzerland, the Swiss legal order incorporates personality rights (Art. 28 CC) as their counterpart among individuals and private entities, and imposes limits on the extent to which individuals may contractually restrict their freedom with respect to those rights in private-law relationships (Art. 27(2) CC). In sports arbitration matters, the SFT has described personality rights as the realization, in private-law relationships, of the constitutionally guaranteed protection of the individual. At the level of the Constitution, this protection is reflected, in particular, in the right to personal freedom (Art. 10 Swiss Constitution): “However, a protection of personal fulfilment does not only exist towards infringements on part of the State, but also towards encroachments from private parties (cpre Art. 27 et seq. CC, which in Switzerland enshrines personal freedom in private law)”.⁸¹ Not every violation of personality rights in this context qualifies for a breach of public policy, however: “A contradiction with public policy can only be assumed, where the sanction represents an obvious and severe infringement of personality”.⁸²

SFT judges create a functional parallel between fundamental rights and personality rights. A recent case series in French-speaking decisions describes the degree of severity of a breach of personality rights required to affect public policy through the prism of violation of a ‘fundamental right’ (droit fondamental), although without ever elaborating on the implications of this terminology.⁸³ Thus, SFT jurisprudence recognizes that breaches of personality rights are among the fundamental principles covered, in certain circumstances, by the concept of public policy.

In fact, the first and only instance of a CAS award being set aside for breach of substantive public policy applied personality rights. In Matuzalem v. FIFA, FIFA had imposed a ban on a football player for an indefinite period of time until he settled a debt.⁸⁴ The SFT reasoned that the limits to the extent to which private parties can voluntarily restrict the exercise of their personality rights apply also to statutes and by-laws of international sports federations.⁸⁵ Regarding the player, Matuzalem, the threat of a prohibition to exercise his professional activities as a way of enforcing a fine put the foundation of the player’s economic existence at risk, without this being justified by an overriding interest of FIFA or its members.⁸⁶

Given the context of the dispute, the decision in Matuzalem focused on situations in which the personality right encroached upon is economic freedom. Most case law in international sports arbitration related to an alleged breach of Art. 27(2) CC involves pecuniary arguments (e.g., a loss of earnings due to an ineligibility period or after an employment dispute) and therefore is primarily concerned with this aspect of economic freedom. Over time, the SFT has considered and rejected arguments of a breach of public policy based on Art. 27 CC in a number of situations, including: restrictions due to the FIFA ban on Third Party Ownerships and resulting fine for breach of the regulations;⁸⁷ proportionality of a two-year doping sanction for a professional wrestler;⁸⁸ five-year prohibition of football-related activities for a breach of the rules on the regulation of match-fixing;⁸⁹ termination of a professional football contract after a positive test for cocaine.⁹⁰

Art. 27 CC, however, is also aimed at preventing commitments that are excessive in terms of their object, meaning commitments related to personality rights the importance of which is such that no one can commit for the future in their regard.⁹¹ The SFT has also mentioned that it would apply the same reasoning, mutatis mutandis, to Art. 20 para. 1 Swiss Code of Obligations (CO), which targets agreements that have an object that is unlawful or against bona mores.⁹²

Personality under Swiss law thus embraces a wide range of different aspects, as the SFT clarified in identical wording in Sun Yang,⁹³ and Caster Semenya:⁹⁴

In matters of elite sport, the Federal Tribunal recognises that personality rights (art. 27 et seq. Swiss Civil Code [CC; RS210] include the right to health, to physical integrity, to honour, professional consideration, sports activity and, with respect to professional sport, the right to development and personal fulfilment.

Two high profile cases illustrate the broader potential of personality rights for challenges in international arbitration. In Sun Yang v. FINA, in order to justify his refusal to submit to doping control which had led to him being declared ineligible for an anti-doping rule violation, the swimmer made allegations of being exposed to the arbitrariness of the DCO with regard to the choice and qualifications of collection personnel during doping control. The SFT rejected the argument, finding no severe and clear case of violation of a fundamental right, adding that the circumstances did not make it legitimate for the swimmer to resort to ‘self-justice’ by tearing up the doping control form and actively participating in the destruction of his blood samples.⁹⁵

The most serious candidate to a ‘Matuzalem II’ type ruling, however, may be Semenya v. World Athletics, in which the SFT made an assessment of various infringements related to her personal freedom, privacy, and physical integrity, in particular under the angle of Art. 27(2) SPILA. Although the SFT found that the restrictions induced by the regulations fell short of representing a violation of personality rights so severe that substantive public policy was breached—such that the violation would weigh heavier in casu than the interests put forward by World Athletics for protecting fairness in the female category in international competitions—the argument ultimately failed at the stage of the proportionality analysis of the measures by the Swiss federal judges, and not on a principled refusal to consider discrimination claims. That proportionality analysis has now been challenged by the recent ruling of the ECtHR, but the case demonstrated that even extremely delicate issues affecting the participation of intersex athletes in sport could be adequately dealt with via personality rights.

In sum, the SFT has conceded little ground to those advocating the consideration of human rights enshrined in either the ECHR or the Swiss Constitution as autonomous grounds for challenging an international CAS award. While an assessment is possible, de lege lata, and indeed conducted in certain instances, successful challenges under the heading of public policy are (close to) non-existent in practice. Given that the only exception, Matuzalem v. FIFA concerned personality rights, and considering the broad scope of application of personality rights with respect to sports practice recognized by the SFT, these rights should be considered in all instances for their potential to at least force the SFT into a proper balance of interests and proportionality assessment.

3 The CAS at the ECtHR

The SFT’s lenient review of CAS awards has been subjected to challenges before the ECtHR since the early 2000s.⁹⁶ Indeed, the two protagonists of one of the most important decisions by the SFT regarding the CAS,⁹⁷ Larisa Lazutina and Olga Danilova, where the first to submit an application to the ECtHR against Switzerland (in 2003).⁹⁸ While they withdrew their application in 2007 after waiting four years for the court to act—leading to a decision to remove the case from the roll in 2008—they were precursors in thinking of mobilizing European human rights law, and in particular the ECHR, to challenge the SFT’s endorsement of the CAS. Because the seat of the CAS is in Lausanne, and the ICAS is a Swiss foundation, its awards can only be challenged before the SFT, so it is Switzerland, as a signatory of the ECHR, which is always the state defendant in cases involving the CAS and its awards. In recent years, the ECtHR has addressed a number of judgments and decisions concerning the CAS,⁹⁹ which have set a new framework for the review of the work of sports arbitrators in light of the ECHR.

3.1 The Road to Strasbourg: Switzerland’s Responsibility for the CAS

The CAS is managed by the ICAS, a Swiss foundation; it is therefore not a public body within the Swiss state or an organization resulting from an international agreement. This raises an important legal question, which the ECtHR had to resolve from the outset, which is whether the international responsibility of Switzerland could be engaged over human rights violations stemming from the operation of a private arbitral tribunal. In Mutu and Pechstein, the ECtHR answered this question positively, justifying this by pointing at the jurisdiction of the SFT in reviewing CAS awards, and more specifically in “giving the relevant awards force of law in the Swiss legal order”.¹⁰⁰ Accordingly, the Court concluded that “the impugned acts or omissions [of the SFT] are thus capable of engaging the responsibility of the respondent State under the Convention”.¹⁰¹ In particular, the ECtHR “has jurisdiction ratione personae to examine the applicants’ complaints as to the acts and omissions of the CAS that were validated by the Federal Court”.¹⁰² The latter holding implies that the SFT’s (almost systematic) condoning of CAS awards is sufficient to trigger the competence of the ECtHR vis-à-vis Switzerland in cases in which it is alleged that a CAS award or the process before the CAS is incompatible with the ECHR.

Thus, the ECHR becomes relevant at the CAS through the ‘Midas touch’ of the Swiss court, which offers the necessary backing to ensure the existence of the CAS and the finality of its awards.¹⁰³ This approach to the competence of the ECtHR towards CAS awards has been maintained in all cases decided by the Court since.¹⁰⁴ Further, in the recent Semenya ruling, the ECtHR “saw no reason to depart from its previous findings in other cases related to sports arbitration”, and insisted that,

[t]he fact that the IAAF was a Monegasque private-law association with its seat in Monaco, and not a Swiss private-law association (like FIFA – Platini v. Switzerland (dec.), and the ISU – Mutu and Pechstein v. Switzerland) made no difference as regards the Court’s jurisdiction ratione personae and loci, especially since [the Court’s] examination would focus on the proceedings before the CAS and the Federal Court.¹⁰⁵

In its response to an argument raised by the Swiss government based on the limited scope of review of the SFT in the context of international awards, the ECtHR pointed out that even within such a limited scope the SFT was considering rights protected under the ECHR.¹⁰⁶ Moreover, it clearly distinguished the situation of the CAS from two previous cases in which the ECtHR had denied its competence rationae personae, involving the Andorran courts and the International Criminal Tribunal for the Former Yugoslavia (ICTY), emphasizing the fact that in both cases the national courts of the signatories had no involvement in reviewing the decisions issued by these courts.¹⁰⁷ Finally, and most importantly, the ECtHR stressed that,

the only remedy available to her [Caster Semenya] had been a request for arbitration to the CAS, followed by an appeal against the refusal of arbitration to the Federal Court […] if the Court were to find that it did not have jurisdiction to examine this type of application, it would risk barring access to the Court to an entire category of individuals, that of female athletes, which would not be in keeping with the spirit, object and purpose of the Convention.¹⁰⁸

In spite of a dissenting opinion of three of the seven judges challenging the basis for jurisdiction of the ECtHR – and subject to a different evaluation by the Grand Chamber in the referral currently pending – the Semenya judgement should put to rest any resistance that Switzerland may oppose to the competence rationae personae of the ECtHR in cases involving the CAS. While the ECtHR has shown its willingness to embrace the advantages of a single global judicial institution to resolve transnational sporting disputes, finding it necessary to maintain the coherence and uniformity of the transnational governance and regulation of sport,¹⁰⁹ it is also willing to draw on the lack of alternatives to the CAS to justify the need to ensure that it is not used to bypass the guarantees afforded by the ECHR and the competence of the Court.

If this position is endorsed by the Grand Chamber, the specter of an application to the ECtHR will always loom over CAS arbitrators and SFT judges.¹¹⁰ Yet as will be discussed in the next section, the severity of this threat depends on the parties involved and the issues raised in each case. In any event, future applicants will need to invoke the application of the ECHR before the CAS and the SFT in order to lodge an application before the ECtHR.¹¹¹

3.2 Assessing the Compatibility of CAS Proceedings with the ECHR: The Mutu and Pechstein Judgment

The resolution of the essential preliminary question of the competence of the ECtHR to entertain applications against Switzerland in matters concerning CAS awards has enabled the Strasbourg judges to weigh in on the compatibility of CAS arbitration with the ECHR. In the Mutu and Pechstein judgment,¹¹² the Court had to consider whether CAS proceedings were compatible with Article 6(1) ECHR. This institutional question was already at the heart of the first application involving the CAS, lodged by Larisa Lazutina and Olga Danilova.¹¹³ Yet the application was ultimately withdrawn in October 2007, and the question of the compatibility of the CAS itself with Article 6(1) ECHR would only be answered a decade later.

The preliminary issue raised in the Mutu and Pechstein case was whether CAS proceedings should be considered of a criminal or civil nature. While it was common ground to regard the contractual dispute between Adrian Mutu and his football club as a civil dispute, the question whether an anti-doping disciplinary sanction would amount to a criminal or civil matter was less clear. Ultimately, the Court considered that the latter involved “a disciplinary procedure before the professional bodies and in the context of which the right to carry on an occupation is at stake”, and, therefore, that “there is no doubt as to the ‘civil’ nature of the rights in question”.¹¹⁴ Accordingly, even in disciplinary proceedings, the ECHR compatibility of the arbitral process must be assessed on the basis of Article 6(1) ECHR.

3.2.1 The CAS Arbitration Clause as an Insufficient Waiver of the Safeguards of Article 6(1) ECHR

In its Mutu and Pechstein judgment, the ECtHR had to decide whether the applicants’ acceptance of the jurisdiction of the CAS constituted a valid waiver of the safeguards provided by Article 6(1) ECHR, as argued by Switzerland. In other words: is Article 6(1) ECHR applicable at all to CAS proceedings, or have the applicants validly waived their rights under this provision through their decisions to appeal to the CAS? In order to answer this question, the Court argued that it had to “determine whether that acceptance was the result of a ‘free, lawful and unequivocal’ choice”.¹¹⁵ The judgment pointed out that Claudia Pechstein had to choose “between accepting the arbitration clause and thus earning her living by practising her sport professionally, or not accepting it and being obliged to refrain completely from earning a living from her sport at that level”.¹¹⁶ Accordingly, “[h]aving regard to the restriction that non-acceptance of the arbitration clause would have entailed for her professional life, it cannot be asserted that she had accepted that clause freely and unequivocally”.¹¹⁷ Hence, “the acceptance of CAS jurisdiction by the second applicant [Claudia Pechstein] must be regarded as ‘compulsory’ arbitration”,¹¹⁸ and the CAS proceedings “therefore had to afford the safeguards secured by Article 6 § 1 of the Convention”.¹¹⁹

Regarding Adrian Mutu, however, the Court came to the conclusion that he had freely committed to the CAS arbitration clause included in his labour contract, as he could not show that he was, like Claudia Pechstein, deprived of any choice in terms of the content of his contract in order to pursue a career as a professional football player.¹²⁰ However, the judges did not consider his choice unequivocal, as Mutu had challenged one of the arbitrators during the proceedings;¹²¹ he could, therefore, also rely on the safeguards of Article 6(1) ECHR. By emphasizing in the Pechstein situation the forced nature of CAS arbitration, the Strasbourg judges denied Switzerland the ability to invoke the consensual basis of the jurisdiction of the CAS to limit the applicability of Article 6(1) ECHR. Instead, the CAS must fully abide by the due process safeguards offered by this provision. In particular, it must be an independent and impartial institution and must provide the opportunity for the publicity of CAS hearings.

3.2.2 The Independence and Impartiality of the CAS

In Mutu and Pechstein, the Strasbourg judges considered first whether the CAS was sufficiently independent and impartial as required under Article 6(1) ECHR. In particular, Pechstein challenged unsuccessfully the independence of the CAS from the SGBs, especially the members of the Olympic Movement. First, the ECtHR brushed aside the claim that the financing of the CAS, which is mostly provided by the Olympic Movement, would taint its independence. Indeed, the ruling concluded that by analogy to national courts, “the CAS cannot be said to lack independence and impartiality solely on account of its financing arrangements”.¹²²

The Court also rejected Pechstein’s arguments related to the selection process of arbitrators at the CAS, which she considered to be structurally imbalanced in favor of the federations.¹²³ The judges recognized that the process was largely at the discretion of the ICAS, acknowledging “the existence of a certain link between the ICAS and organisations that might be involved in disputes with athletes before the CAS”.¹²⁴ Furthermore, the judgment also noted the discretionary power of the ICAS on the selection and removal of arbitrators.¹²⁵ Yet the ECtHR argued that Pechstein failed to adduce “any factual evidence such as to cast any general doubt on the independence and impartiality of [the CAS] arbitrators”, or the three members of the Panel that decided her case.¹²⁶ Thus, while the Court declared itself “prepared to acknowledge that the organisations which were likely to be involved in disputes with athletes before the CAS had real influence over the mechanism for appointing arbitrators”, it refused to

conclude that, solely on account of this influence, the list of arbitrators, or even a majority thereof, was composed of arbitrators who could not be regarded as independent and impartial, on an individual basis, whether objectively or subjectively, vis-à-vis those organisations.

In the Court’s view, therefore, there are insufficient grounds for it to reject the settled case-law of the Federal Court to the effect that the system of the list of arbitrators meets the constitutional requirements of independence and impartiality applicable to arbitral tribunals, and that the CAS, when operating as an appellate body external to international federations, is similar to a judicial authority independent of the parties. ¹²⁷

The Court also rejected Pechstein’s attempt to argue that the power to make formal rectifications to the arbitral award of the CAS Secretary General (now Director General) was damaging the independence of the CAS due to a lack of evidence that such power was used in her case.¹²⁸

The ECtHR’s decision to endorse the structural independence of the CAS from the SGBs of the Olympic Movement is a consequential one, especially in the context of a compulsory arbitration system. It allows the CAS to continue to operate in its current institutional structure. In fact, this decision was already invoked by a number of courts at the national and European level in support of the CAS.¹²⁹ The ECtHR itself has systematically referred to it in its recent rulings involving the CAS.¹³⁰ Nonetheless, this conclusion is not uncontroversial, as illustrated by the strongly argued dissent by Judge Keller and Serghides under the decision. Their doubts regarding the independence of the CAS are supported by numerous authors and grounded on a number of institutional features of the CAS that point at it being captured (or at least at risk of appearing as captured) by the Olympic Movement.¹³¹

Finally, it is notable that in its appraisal of the structural independence of the CAS, the ECtHR did not consider the central role of the President of the Appeal Division in the nomination process of the President of a Panel (or Sole Arbitrator) in appeal arbitration cases—those involving challenges to decisions rendered by the SGBs, which constitute an overwhelming share of the CAS caseload and generally entail a forced arbitration. This might offer a future opening for claimants aiming to challenge anew the independence of the CAS before the ECtHR. In fact, in its Ali Riza judgment the Court already showed its willingness to challenge the independence of an arbitral body in the sporting context, specifically when the nomination process of the arbitrators is susceptible of leading the parties to believe that they are systematically biased.¹³²

3.2.3 The Publicity of CAS Hearings

The Mutu and Pechstein judgment is important because it affirmed the fact that a CAS arbitration clause did not constitute a valid waiver of the safeguards of Article 6(1) ECHR. The impact of this finding was immediately demonstrated insofar as the publicity of CAS hearings is concerned. During the CAS proceedings, Claudia Pechstein had requested that her hearing be held in public; this request was denied by the CAS panel and the denial later endorsed by the SFT. In contrast, the Strasbourg Court found,

that the questions arising in the impugned proceedings – as to whether it was justified for the second applicant to have been penalised for doping, and for the resolution of which the CAS heard testimony from numerous experts – rendered it necessary to hold a hearing under public scrutiny.¹³³

In particular, it noted that “the facts were disputed and the sanction imposed on the applicant carried a degree of stigma and was likely to adversely affect her professional honour and reputation”.¹³⁴ The Court therefore reached the conclusion that “there has been a violation of Article 6 § 1 of the Convention on account of the fact that the proceedings before the CAS were not held in public”.¹³⁵

Unlike with the independence of the CAS, the ECtHR’s intervention triggered limited institutional changes at the CAS. Firstly, on the question of the publicity of hearings, through the introduction of a specific provision to this effect for appeal arbitration,¹³⁶ even though the CAS and the SFT have interpreted this requirement narrowly.¹³⁷ Secondly, and more broadly, the intervention of the ECtHR on this issue has likely contributed to greater administrative transparency at the CAS, with the release of an Annual Report since the end of 2021 that includes relevant information on the financial situation of the CAS and its caseload. Undoubtedly, the Strasbourg judges have influenced, through their application of Article 6(1) ECHR to the CAS, its institutional structure and thus the organization of the transnational judicial system of the Olympic Movement.

3.3 Assessing the Compatibility of CAS Awards with the ECHR: The Platini and Semenya Cases

The ECtHR’s judgment in Mutu and Pechstein was focused on the compatibility of the CAS as an institution with the requirements of the ECHR, but the role of the Court vis-à-vis the CAS does not stop at the institutional level. In recent years, the Court has been called upon in a number of cases to decide whether CAS awards, and their endorsement by the SFT, had violated the substantial provisions of the ECHR.¹³⁸ The central threshold for engaging the responsibility of Switzerland in this regard has been whether adequate institutional and procedural safeguards were provided at the CAS and the SFT to protect the rights of the applicants.¹³⁹ In the Platini decision, the ECtHR found that such safeguards were indeed present, while in Semenya it reached the opposite conclusion. Of note, the judgment in Semenya has been referred by Switzerland to the Grand Chamber, so that the ruling has not yet become final.

3.3.1 The Platini Decision: Granting Switzerland a Broad Margin of Appreciation in Its Review of CAS Awards

Michel Platini, the former French football star and UEFA and FIFA executive, contested the ECHR compatibility of the CAS award and SFT judgment upholding in part a decision of the FIFA Ethics Committee to exclude him from football activities.¹⁴⁰ The ECtHR recognized that the sanction, despite originating in Platini’s professional life, had reached the threshold of severity required to engage Article 8 ECHR.¹⁴¹ The judges noted the impact of the ban on Platini’s ability to earn a living, especially due to FIFA’s monopoly over professional football; its interference with Platini’s “possibility of establishing and developing social relations with others”, in light of the breadth of the activities covered by FIFA’s sanction; and the negative reputational impact (stigmatization) Platini suffered.¹⁴² In the decision, the Court then set the threshold for future assessments of the compatibility of CAS awards with the ECHR; as the CAS award did not constitute a state measure, it was examined in terms of the Swiss state’s positive obligations and margin of appreciation.¹⁴³

Before engaging in its assessment, the Court noted the specificity of the career path chosen by Platini as a football professional, stressing that while such a career brought with it certain privileges and advantages, it also came with some contractual limitations on individual rights, which are acceptable if freely consented to.¹⁴⁴ Furthermore, the judges stressed that contrary to Claudia Pechstein, Platini did not claim that he was forced to consent to CAS arbitration. Instead, he expressly accepted the competence of the CAS by signing its procedural order.¹⁴⁵

The ECtHR’s assessment of the compliance of Switzerland with its positive obligations under the ECHR focused primarily on the coherence of the CAS award and the quality of the justifications advanced to support the arbitrators’ decision. In this regard, the judges noted that the CAS had responded to the applicant’s complaints in an “exhaustive and comprehensive manner”, and that it delivered “a sufficiently detailed award” and “convincingly weighed up the interests at stake”.¹⁴⁶ Additionally, the ECtHR found that the CAS had considered that the four-year ban was proportionate to the aim pursued, which was to impose a sufficiently harsh (and deterrent) sanction for the breach of the FIFA Code of Ethics, and to restore the reputation of football and FIFA.¹⁴⁷ It was also of the view that Platini’s personal antecedents, his “outstanding services to football”, had not been overlooked by the arbitrators.¹⁴⁸ Instead, the CAS arbitrators have given “due regard to the applicant’s senior position in the highest football bodies at the time of the offences of which he stood accused, and also to his lack of remorse”.¹⁴⁹

Regarding the review exercised by the SFT, the Strasbourg judges considered that the Swiss court had “upheld the CAS award on the basis of plausible and convincing reasoning”.¹⁵⁰ The judgement specifically highlighted the fact that the SFT had not considered the duration of the ban imposed to be manifestly excessive and had concluded that the CAS had not disregarded any material circumstance in deciding on that duration.¹⁵¹ Hence, the ECtHR ruled that Platini had “been afforded adequate institutional and procedural safeguards through a system of adjudicatory organs, first private bodies then a State court, which had properly weighed up the interests at stake and had addressed all of the applicant’s complaints in duly reasoned decisions”.¹⁵² Moreover, it held that the decisions of the CAS and the SFT “did not appear arbitrary or manifestly unreasonable, and pursued not only the legitimate aim of punishing breaches of the relevant rules by a high-ranking official of FIFA, but also the general-interest aim of restoring the reputation of football and of FIFA”.¹⁵³ Finally, the Decision stressed the “broad margin of appreciation”¹⁵⁴ afforded to Switzerland, to come to the conclusion that the state had not failed to fulfil its positive obligations.

Platini points to the ECtHR’s reluctance to engage in a detailed review of the substance of a CAS award, at least when Article 8 ECHR is involved. In Platini, the Strasbourg judges focused on a procedural check, highlighting the general coherence of the reasoning used in the award, as well as its sheer length. The final reference in the Decision to standards such as arbitrariness or the manifest unreasonableness of the contested decisions seems to support the impression that the ECtHR was unwilling to intervene in cases involving the CAS unless the challenged CAS or SFT decisions are manifestly deficient. Moreover, unlike in the Semenya judgment discussed in the next section, in Platini the judges did not consider whether the CAS or the SFT had referred to the ECHR, and relied on the ECtHR’s jurisprudence in their decisions.

3.3.2 The Semenya Judgment: Limiting the Scope of Switzerland’s Margin of Appreciation in Cases of Discrimination

The Semenya judgement, rendered by the Third Section/Chamber of the ECtHR on 11 July 2023 marks a clear departure from the deferent approach to the substantial review of CAS awards adopted in the Platini decision. The case is a controversial cause célèbre involving the regulations imposed by World Athletics to regulate the participation of athletes with differences of sex development (DSD) in its competitions.¹⁵⁵ In particular, the DSD Regulations led to the ineligibility of Caster Semenya, the dominant South African female runner and Olympic Gold medalist, from competing on her favorite distance, the 400m.

In its judgment, the Strasbourg Court recognized that the DSD Regulations were affecting the private life of Caster Semenya.¹⁵⁶ In particular, it deemed that the findings of the CAS regarding Caster Semenya’s belonging to the female category for the purpose of athletics competitions were susceptible to directly affect her personal identity, and fell under the scope of Article 8 ECHR. Furthermore, the judges held that her personal autonomy was limited due to the dilemma she faced:

either she took the medication, which was likely to cause her physical and mental harm, in order to decrease her testosterone level and to be able to practise her profession, or she refused to take it, with the result that she would have to renounce her right to compete in events of her choosing, and therefore her right to practise her profession.¹⁵⁷

Accordingly, both Semenya’s right to practice her profession and her right to protection from physical and mental harm were affected by the DSD Regulations, and their endorsement by the CAS, and thus the case fell within the ambit of Article 8 ECHR.¹⁵⁸ Moreover, the DSD Regulations “are also likely to have major ‘consequences’ for the enjoyment by the applicant of her right to respect for her private life, in particular, her reputation, private sphere and dignity”.¹⁵⁹ Caster Semenya could invoke Article 8 ECHR to trigger the application of Article 14 ECHR.¹⁶⁰

As the DSD Regulations stemmed from a Monégasque private-law association, the ECtHR had to determine whether Switzerland “was required, and if so to what extent, to protect the applicant from any discriminatory treatment […] arising from the adoption of the DSD Regulations, which the CAS and the Federal Spreme Court held to be necessary, reasonable, proportionate and non-arbitrary”.¹⁶¹ The main question was whether the applicant had

sufficient institutional and procedural safeguards available to her, in the form of a system of courts to which she could submit her complaints, in particular her complaint under Article 14, and whether those courts had delivered reasoned decisions which took account of the Court’s case-law.¹⁶²

In conducting this evaluation, the Court drew a clear difference between Semenya’s situation and Platini’s. It stressed that unlike the latter, Semenya had no real alternative to consenting to a CAS arbitration clause if she wished to pursue a professional career in athletics.¹⁶³ Moreover, the Court noted that differences of treatment based exclusively on sexual characteristics or his/her status as an intersex person required “very weighty reasons”, “particularly serious reasons” or “particularly weighty and convincing reasons” in order to be justified.¹⁶⁴ Where “a particularly important facet of an individual’s existence or identity is at stake”, the discretion of the state is restricted.¹⁶⁵

The ECtHR then assessed the CAS award and its reasoning. While the judges acknowledged the extent of the proceedings before the CAS and the many experts heard, they emphasized the fact that the CAS had failed to consider the relevance of Article 14 ECHR or the case-law of the ECtHR in its lengthy award.¹⁶⁶ Regarding the role of the SFT, the ECtHR noted its limited power of review in the present case.¹⁶⁷ Importantly, it found that such a limited scope of review is problematic in the area of sports arbitration, in which individuals face very powerful sports organizations and are not freely consenting to arbitration.¹⁶⁸ In particular, the majority “sees no reason why professional athletes should be afforded a lesser legal protection than that afforded to people practising a more conventional profession”.¹⁶⁹ The judges also noted some serious scientific doubts expressed by the CAS on a variety of points, which were not lifted by the SFT, and considered that both the CAS and the SFT had failed to conduct an in-depth assessment of the motives supporting the objective and reasonable justification underpinning the Regulations.¹⁷⁰ Furthermore, regarding the potential side effects of the medication imposed on Caster Semenya in order to comply with the DSD Regulations, the judgment criticized the fact that the SFT simply assumed that she had a real choice between medicating or giving up her profession, and did not address her personal dilemma.¹⁷¹ This resulted in the Court concluding that in order to comply with the Convention, the SFT should have considered the issue of the side effects much more seriously.¹⁷²

Finally, the judgment criticized the SFT for failing to consider that the prohibition of discrimination by private entities would fall under the notion of public policy, and for refusing to assess the compatibility of the DSD Regulations with the Swiss Constitution and the European Convention.¹⁷³ Regarding the latter point, it must be highlighted that in reality the SFT did look into the merits of the arguments raised by Semenya and found no unlawful discrimination in casu.¹⁷⁴ Nevertheless, the Court concluded that the SFT had failed to satisfy the requirements of its jurisprudence, which imposes on States Parties to the Convention a duty to prevent and remedy effectively discriminatory acts, even when they emanate from private individuals or entities.¹⁷⁵

Contrary to the Platini decision, the ECtHR came to the conclusion that Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case by failing to provide a thorough institutional and procedural review of the CAS award.¹⁷⁶ Hence, the Strasbourg judges were “unable to find that the application of the DSD Regulations to the applicant’s case could be considered a measure that was objective and proportionate to the aim pursued”.¹⁷⁷ The same considerations as those raised in the framework of the assessment of Article 8 and 14 ECHR led to the finding that Article 13 ECHR, enshrining the right to an effective remedy, had been violated for a lack of sufficient institutional and procedural safeguards afforded to Caster Semenya. The Semenya judgment refines the position of the ECtHR regarding the positive obligations of Switzerland in the context of CAS awards and the extent of its margin of appreciation in the review of such cases. First, it makes an important distinction between individuals, such as Platini, who have a certain latitude in subjecting themselves to the rules of the SGBs and the CAS, and international athletes who can only continue to exercise their sport professionally if they subject themselves to those same Regulations and arbitral clauses, such as Caster Semenya (or Claudia Pechstein).

In Platini, Switzerland enjoyed a wider margin of appreciation and the ECtHR’s review of the quality of the CAS and SFT’s reasoning was less meticulous. Contrariwise, in Semenya, the Strasbourg judges lambasted both the CAS and the SFT for failing to engage in a thorough balancing of the interests at play in light of the ECtHR’s jurisprudence. The difference in approach is also linked to the issue at the heart of the controversial CAS awards. Unlike in Platini, where the issue was affecting solely the right to privacy enshrined in Article 8 ECHR, Semenya turned on a matter involving a discrimination on the basis of sexual characteristics. In the latter instance, the Court concluded that Switzerland enjoyed a narrow margin of appreciation and reviewed to a much more exacting standard the compatibility of the reasoning of both the CAS and the SFT with the ECHR’s requirements.

In sum, the ECtHR’s intensity of review of the compatibility of CAS awards with the ECHR, and of the compliance of the SFT’s review of the awards with Switzerland’s positive obligations stemming from the Convention, will vary depending on the complainants involved as well as the ECHR rights interfered with. Unless the Grand Chamber rules otherwise, Switzerland will not, unlike what might have been thought after the Platini case, systematically enjoy a wide margin of appreciation when the SFT reviews CAS awards. Instead the Swiss court, and therefore the CAS itself, will have to grapple in a much more detailed and systematic way with the compliance of the transnational regulations of sport with European human rights law.

4 Conclusion

The increasing importance of the CAS as the central judicial body that resolves disputes in international sports has gone hand in hand with increasing attention on its effects on human rights; with great judicial power has come great(er) human rights responsibility. This chapter has shown how the SFT progressively integrated human rights considerations in their review of the CAS and its awards. While it has proven reluctant to consider a violation of the ECHR as a self-standing ground in order to challenge CAS awards, it has increasingly considered human rights in its assessment of the compatibility of an award with Swiss public policy. This has been particularly true in recent years, a dynamic most likely driven by the latest decisions of the ECtHR. Yet, until now, this human rights control through the backdoor of Swiss public policy has not led to many awards being overturned. In other words, from the SFT’s point of view, the CAS and its awards have not posed evident human rights problems.

The ECtHR does not seem to share this optimistic point of view regarding the human rights alignment of the CAS. While its first intervention in matters involving the CAS only dates back five years to the Mutu and Pechstein judgment, it has already upended the SFT’s narrow interpretation of the application of European human rights law to the CAS. First by considering CAS arbitration, at least in appeal proceedings involving disciplinary cases, as forced arbitration, which must, therefore, fully comply with the strictures of Article 6(1) ECHR. Though the ECtHR endorsed the independence of the CAS, it did conclude as well that CAS’s habit of deciding cases behind closed doors, even in the face of a request for a public hearing from one of the parties, was incompliant with the ECHR and should have been deemed as such by the SFT. Interestingly, a few years before, the CAS itself had considered the same question and found the practice fully compatible with the ECHR.¹⁷⁸ On the compatibility of the substance of CAS awards with the ECHR, the Court’s first decision in the Platini case was rather deferent to the CAS and the SFT’s assessment, but it became more critical in its latest Semenya judgment. It might be prudent not to read too much into these diametrically opposed outcomes in light of the context-sensitivity of the assessment in two cases involving different fact-patterns, individuals and rights. Nonetheless, the Semenya judgment is a stark reminder that the Strasbourg judges are not willing to sign a blank check to the CAS and the SFT.

In the future, CAS arbitrators and Swiss judges will have to carefully consider claims based on the ECHR and the jurisprudence of the ECtHR if they wish to escape the shame of being blamed by the Strasbourg Court. In addition, the claimants will likely see greater benefits in mobilizing human rights arguments and in harnessing human rights expertise when pleading before the CAS and the SFT. Ultimately, the CAS and the SFT will probably be able to adapt relatively quickly to the need to engage with the ECHR and its interpretation by the ECtHR. As matters stand, however, the SFT seems to demonstrate little eagerness to engage with the implications of the Semenya judgment until the Grand Chamber issues its ruling, as it recently made clear in a doping case.¹⁷⁹ It is, therefore, not a given that more vigorous engagement with the ECHR will dramatically change the CAS’ reluctance to interfere with the SGBs’ decisions, and the SFT’s habit to endorse CAS awards, but only time will tell.¹⁸⁰