UPDATE: CAS has now released an “executive summary” of the judgment, here in PDF. Nothing in that summary alters anything in my analysis below.
In a 2-1 split decision, the Court of Arbitration for Sport has ruled against Caster Semenya and in favor of the IAAF. The decision legitimizes the discriminatory regulations of the IAAF. The characterization of the regulations as “discriminatory” is not mine, it is that of CAS, which finds the regulations to be discriminatory, but nonetheless necessary to protect some women from some other women.
The New York Times characterizes the decision as follows: “The highest court in international sports issued a landmark but nuanced ruling on Wednesday that will force female track athletes with elevated levels of testosterone to take suppressants to compete in certain women’s races at major international events like the Olympics.” [Note: According to the NYT the original quote I used was edited out of its story: “
The decision by the Swiss-based Court of Arbitration for Sport provided a resounding victory for track and field’s world governing body, the International Association of Athletics Federations, or I.A.A.F.”] While the bottom line result can certainly be interpreted this way, the decision is not without nuance, complexity, confusion and contradictions. Semenya’s legal team has said that they are considering an appeal.
In this post I will comment on the CAS decision — based on its two-page press release today (PDF) – from the standpoint of scientific integrity, a topic which I’ve discussed related to these regulations for several years, long pre-dating this arbitration proceeding.
As you may know, I was a pro bono expert witness in the proceedings for Semenya. My comments here are my personal views alone. I will comment on further issues when the full decision is made available. I am not lawyer or a doctor. I have worked on issues surrounding the use and misuse of science in policy making for more than 25 years. As well, I have published peer-reviewed research on the issue of “sex testing” in sport as well as with colleagues on the issues of scientific integrity at play in this case. So with that throat clearing … Today, I have three main reactions.
1. Reading between the lines of the press release, CAS necessarily must have discounted issues of scientific integrity in evaluating the regulations.
Long before the CAS proceedings, we identified flaws in IAAF research used to justify the regulations. Our findings have since been published in the peer-reviewed literature. On the basis of these findings, and these findings alone, we argued that the IAAF research should be retracted and the regulations should be put on hold until more rigorous research was done by independent researchers. The scientific issues that we identified have not been contested by IAAF — indeed, many of the issues that we identified have been acknowledged by IAAF.
The fact that a majority of the CAS panel voted to uphold the regulations indicates that these issues of scientific integrity were not considered to be critical in its decision. As I discuss below, the press release indicates that CAS still considers the flawed IAAF research to be authoritative. This alone is stunning.
As we explain in our paper, consideration of the significant issues that we raise would have, at a minimum, led to a stay of the implementation of the regulations until the scientific basis was made more solid, or served as the basis for rejecting the regulations as invalid. We should all look closely at how CAS handled matters of scientific integrity when the full decision is released. This issue goes beyond just this case and is clearly a significant issue for sports law.
2. CAS highlights that there are problems with the evidence in this case.
Problems with and lack of evidence that were cited by CAS in its press release were not seen as an obstacle to upholding the regulations. Strangely, this is exactly the opposite conclusion that CAS reached in the Chand case, which shared 2 of 3 judges that ruled in the Semenya case.
The apparent Chand/Semenya flip-flop on whether or not evidence matters illustrates a fundamental flaw in sports law: it is not precedental. A decision in 2015 can rule that down is down, and then in 2019 another panel with 2/3 identical judges can say that, nah, up is down. And both decisions hold. It’s a huge mess and no way to organize a jurisprudential system.
Here is what the CAS press release says on the Semenya case:
“The difficulty to rely on concrete evidence of actual (in contrast to theoretical) significant athletic advantage by a sufficient number of 46 XY DSD athletes in the 1500m and 1 mile events. The CAS Panel suggested that the IAAF consider deferring the application of the DSD Regulations to these events until more evidence is available. “
As we have documented, the research that IAAF relied on to establish the regulated events comes from a single paper — the one that we have established to be fatally flawed. Taken at face value, that paper does not provide strong empirical support for the inclusion of the 1500m (and it doesn’t even address the mile). The fact that CAS appears here to accept the classification of the other regulated events without question implies that they have accepted the flawed scientific research of IAAF and rejected our critique. If this is the case (and I can see no other explanation) then this is an egregious failure of scientific integrity under CAS.
Further, there is no published research that I am aware of that seeks to evaluate any in-competition advantage of 46 XY DSD athletes. The flawed research produced by IAAF in support of the current regulations was actually focused on evaluating performance differences among male and among female athletes with different levels of testosterone, based on the direction given to IAAF by the Chand panel. The flawed IAAF research was not at all focused on the new DSD regulations at the center of this arbitration, because those regulations did not exist when that research was conducted.
Yet the Semenya CAS panel apparently has treated the research conducted by IAAF at the direction of the Chand panel — and that which was the subject of our critique — as somehow still authoritative and directly relevant to the Semenya case. It’s not. Not even close. Both IAAF and CAS are guilty of relying on policy-based evidence, rather than evidence-based policy.
Relevant research was deemed necessary for evidence-based regulation to occur in the Chand case, and now has been deemed unnecessary for regulation in the Semenya case. That is the very definition of arbitrary decision making and should be unacceptable in such a consequential proceeding.
In the end, the current iteration of the regulations has been implemented with no evidence of advantage in actual athletic performance by the subset of athletes subject to the discriminatory regulations. In the Chand case, facing such an absence of evidence the CAS suspended the proposed regulations for two years and asked IAAF to do research that might better support the proposed regulations. That was a smart course of action because after actually doing some research IAAF could not provide the requested evidence and the Chand regulations were terminated.
Now, CAS admits that there is again a lack of evidence to support regulation (for two events) and merely “suggests” that IAAF think about deferring application of the regulations. Who thinks IAAF will defer?
A more typical and healthy regulatory process would defer implementation until evidence was available – as was the case in Chand — rather than the reverse, which has happened here. This is arguably a violation of Swiss law, but I’m no lawyer, and we shall see.
3. CAS has apparently granted IAAF the ability to change the regulations as it prefers, without evidence or the possibility of recourse.
The CAS press release states:
“The CAS Panel strongly encouraged the IAAF to address these concerns when implementing the DSD Regulations, bearing in mind that the DSD Regulations are a “living document”, as asserted by the IAAF itself. Indeed, it may be that, on implementation and with experience, certain factors may be shown to affect the overall proportionality of the DSD Regulations, either by indicating that amendments are required in order to ensure that the Regulations are capable of being applied proportionately, or by providing further support for or against the inclusion of particular events within the category of Restricted Events.”
First, under my understanding of how CAS operates in the ecosystem of sports governance, the “strong encouragement” of CAS for IAAF to do anything is pretty much meaningless in practice. CAS has no enforcement or sanctioning power over IAAF outside the context of a specific arbitration case. The Semenya case is now over and the decision has been given. IAAF is now free to do as it pleases. The panel that rendered this decision will never again meet. CAS does not operate via stare decisis (for details see this paper – PDF, and this paper – PDF). You’ve just seen an Achilles Heel of sports law in practice.
Further, it seems that CAS has given the IAAF a green light to change the regulations arbitrarily as it sees fit. Given that the regulations have been allowed to stand with flawed or even without evidence (see #2 above), such latitude to change the regulations as they are being implemented introduces huge uncertainties and potential volatility into the future regulatory process.
It is not clear how any athlete might contest a “living document” subject to change upon the whims of IAAF. What if Semenya now decides to run the 3000m? And what happens if IAAF responds by saying that they decided based on an internal evidentiary review to add the 3000m to the list of restricted events under the regulations? Could Semenya then take IAAF back to CAS? Would the expansion of regulated events even be judicially reviewable? Would the current case offer any precedent (in principle, no; but in practice; who knows)?
The problems that we have already demonstrated that exist with scientific integrity in the IAAF now risk being exacerbated by this very odd approach to regulation and jurisprudence. Effective regulation necessarily follows from a procedurally sound regulatory process, and the current process is anything but sound. It’s a mess. Setting aside the substantive issues of this case: the procedural issues alone clearly show that sports law is broken in important respects. The CAS judgment in this case should motivate a call for reform of the CAS process, and in particular how it treats science and evidence.
Bottom line: Whatever you or I might think about gender, sex and sport, the CAS has failed miserably as a matter of jurisprudence, enforcing regulatory policy and evidence-based decision making. These shortfalls should concern anyone interested in sports law and athlete rights.