Caster Semenya, a South African middle-distance runner and two-time Olympic champion, saw her career and love of running put on hold when she lost a case in April 2019 against World Athletics — formerly known as the International Association of Athletics Federations — at the Court of Arbitration for Sport (CAS). At issue is World Athletics’ controversial new eligibility rules that require Ms. Semenya to lower her natural testosterone level in order to compete in international competitions over certain distances.
She quickly turned to Sidley for help with an appeal of the CAS ruling. Ms. Semenya’s appeal was about protecting the fundamental human rights of women athletes. Dr. Dorothee Schramm and David Roney of Sidley’s office in Geneva achieved a quick first success in the form of temporary relief for the runner when, on May 31, 2019, the Federal Supreme Court of Switzerland ordered World Athletics to immediately suspend implementation of the eligibility regulations against Ms. Semenya, and reconfirmed this order on June 12, 2019. This enabled Ms. Semenya, 28, to temporarily resume competition and win the 800-meter race at the Prefontaine Classic on June 30, 2019.
On July 29, 2019, a single judge of the Swiss Supreme Court denied Ms. Semenya’s request to maintain the suspension of the CAS ruling in place during the entire appeal proceedings, which would have been rare under Swiss law.
While an appeal against an arbitral award based on Swiss public policy has only been accepted once in over 30 years, it took the Swiss Supreme Court a full nine months to rule on Ms. Semenya’s appeal. On September 8, 2020, the Swiss Supreme Court refused to set aside CAS’s ruling against Ms. Semenya, stressing the strict limitations of reviewing a violation of Swiss public policy. The court found that the World Athletics regulations seriously violate Caster’s physical integrity, because the required hormonal drug intervention is not medically indicated, has negative health effects and is not based on the athlete’s free consent. However, the Swiss Supreme Court considered this insufficient for a violation of public policy, based on the controversial factual findings of two out of three CAS arbitrators, which were binding on the court.
Ms. Semenya is now considering all of her options internationally and domestically, noting that the World Medical Association has called on physicians around the world to take no part in implementing the World Athletics regulations and has demanded their immediate withdrawal.
Dorothee Schramm, the Sidley partner who led Ms. Semenya’s appeal, says “This decision is a call to action — as a society, we cannot allow a sports federation to override the most fundamental of human rights.”
Ms. Semenya’s race for justice will continue, and Sidley will continue to raise its voice against discrimination and against putting sporting interests and economic interests of one athlete above the health and physical integrity of another athlete.
