The European Court of Human Rights announced the last instance judgment in the Caster Semenya case on Thursday. If he decides in favor of the South African, athletes can hope for better legal protection worldwide.
An epic sports law dispute will end this Thursday before the European Court of Human Rights (ECHR) in Strasbourg. In a public meeting, the large chamber announces its decision in the case of the former 800-meter World Class runner Caster Semenya, on request No. 10934/21. A victory of the two -time Olympic champion from South Africa could have a major impact on the legal system in world sports.
“Then the ECHR would be a control body that is above the International Sports Court CAS and which could largely correct decisions again in the matter”said Cologne -based legal professor Angelika Nussberger, who was vice president at the ECHR between 2017 and 2020.
Inadequate legal protection
Against the background of the restrictive rules of the World Athletics Association World Athletics, Semenya had unsuccessfully sued athletes with innate deviations in gender development (DSD) in 2019. Another legal process is generally not open to athletes in a dispute with associations.
CAS judgments are actually final. They can only be challenged in front of the Swiss Federal Supreme Court. It is responsible because the CAS is based in Lausanne, but only checks decisions for formal errors, but not in terms of content. The Federal Supreme Court also confirmed the CAS decision in the Semenya case in 2020.
In Strasbourg, Semenya had received right in 2023 in the first instance: she was discriminated against by the rules of sports jurisdiction. Switzerland, where the CAS sits, offers it only inadequate legal protection.
“If the ECHR actually determined discrimination here, then the existing regulations would have to be adapted accordingly”explains Nussberger. Switzerland would have to improve legal protection for athletes against CAS decisions. For a long time, critics have been reprimanding the lack of independence and non -partisanity of the CAS, which was significantly influenced by the International Olympic Committee.
Experts consider Semenyas opportunities to be low
However, the first ECHR judgment per Semenya had only fallen with a narrow majority of the judge’s votes. Therefore, the Swiss Federal Government applied for a negotiation to the ECHR’s great chamber – which is now judged.
Specialists think Semenya’s chances of winning are rather low. This is also related to the political constellation on the ECHR. Due to his decisions in cases that affect climate issues, but above all the deportation practice of foreign foreigners or asylum issues, the ECHR, an organ of the Council of Europe, is criticized anyway. It is therefore rather unlikely that the judges in the delicate mixture declare themselves for another, not associated with their core area. Especially since there can be no clear answer in the special question about justice in sport that meets all interests.
Naturally increased Testosterone values
World Athletics is officially not a process party, Semenya’s opponent in this process is Switzerland as the seat of CAS. Semenya’s lawsuit has its origin in dispute over the rules of the World Association to athletes with so -called deviations in gender development, in the English abbreviation DSD (Differences of Sexual Development).
DSD athletes such as Semenya have naturally increased testosterone values due to a congenital genetic disposition and also differ from transgender athletes. Since competitive advantages can arise from the genetic predisposition, some sports, such as athletics, conclude the DSD athletes in principle.
“I was dehumanized”
Semenya thrusts are World Athletics and the opposite DSD athlete’s restrictive regulations of the World Association. “The most angry makes me how they treated me”Semenya said the ARD about the association responsible for them last August in Paris during the Olympic Games: “That I was taken away from the personality sphere. That I was dehumanized.”
Not only human rights and DSD activists like Payoshni Mitra are tensioned towards the judgment: “I can only say that all athletes with whom I work are eagerly waiting for this judgment. And quite a few of them, especially in athletics, are affected by the DSD requirements of the World Athletics Association.”
Mitra has also been fighting for Semenyas concerns in the “Humans of Sports” organization for years. The World Association World Athletic did not want to comment on ARD request in the run-up to the verdict.
Inconsistent rules
The sports associations are in front of a dilemma in dealing with DSD athletes. On the one hand, you have to guarantee the fairness of the competitions, on the other hand, you do not want to prevent athletes from practicing their sport. So far, the handling of the organizations has varied with the dilemma. Some like World Athletics have strict rules, in others they are completely missing. So far, the international Olympic committee has largely been removed from the conflict.
That should change, the new IOC President Kirsty Coventry has announced. A working group should find as general solutions as possible. After the latest board meeting said Coventry: “It was quite unanimously believed that the IOC should play a leading role in bringing everyone involved in order to find a broad consensus. So the working group will be guided by this.”
All solutions are too late for Semenya. She is now 34 years old. She says she fights for the principle, for justice. It is open whether her success before the ECJ on Thursday could provide her the basis for a claim for damages against the World Athletics Association.