Indian athlete’s persistence culminates into a landmark Court of Arbitration for Sport interim award

 

Aakanksha Kumar* & Kartikey Mahajan*

Recently, an Indian female sprinter has been at the forefront in limiting the role played by the allegedly “performance enhancing androgen” – testosterone hormone levels as a relevant factor in distinguishing male and female athletes. The female sprinter is Dutee Chand, who holds the National under-18 record in the girls’ 100m category. She was barred from competing due to naturally high levels of testosterone in her body, which were in excess of the IAAF Hyperandrogenism Regulations. This post tries to throw light on some of the issues concerning the CAS interim award that she obtained, which suspends these regulations.

The IAAF Guidelines

The International Association of Athletics Federation (“IAAF”) is the governing body of track and field sport, as recognized by the International Olympic Committee (“IOC”). Gender has always been an issue of controversy in track and field sports. Readers may recall the case of Caster Semenya (a South African runner), which gathered a lot of publicity.[1] In order to resolve issues relating to gender, the IAAF in 2011 established guidelines requiring female athletes to have testosterone levels below 10 nanomoles per liter, the lower end of the male range.[2] These guidelines are known as The IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competitions (“IAAF Hyperandrogenism Regulations”), which were later adopted by the IOC. This was, and has continued to be the relevant criteria for distinguishing male and female athletes in track and field sports. The women who exceeded the criteria in these regulations were left with two options: either to undergo treatment to normalize their androgen levels, or cease competing.

Brief Factual Background of the Case

The Sports Authority of India (“SAI”) is the primordial body dealing with sports in India under the aegis of Ministry of Youth Affairs and Sports. SAI is not affiliated to IAAF and is not subject to IAAF’s regulatory jurisdiction. The Athletics Federation of India (“AFI”), on the other hand, is the apex body for running and managing athletics in India and affiliated to the IAAF, Asian Athletics Association and Indian Olympic Association.

On July 16, 2014, SAI released a statement confirming that Indian athlete Dutee, would be “not eligible to compete in the female category”, following a test that was conducted to check the level of androgen in her body. This was admittedly done pursuant to a letter from the AFI, seeking investigation into Dutee’s suspected high male hormone levels. Following representations and exchanges between Dutee’s medical representatives, SAI and AFI, the AFI issued its “Decision Letter” on August 31, 2014 notifying Dutee of her provisional suspension from any athletics competitions thereafter. Dutee wrote back to AFI on September 28, 2014 seeking a reconsideration of the aforesaid decision, while SAI maintained that in case AFI chose to not revoke its decision, SAI would continue to support Dutee’s plea to the CAS for reinstatement, as well as against the IAAF Hyperandrogenism Regulations.The IAAF initially ruled that Dutee could return to competitions, but only if she had significantly lowered her testosterone levels through certain drugs or surgery that limit the production of testosterone.[3] Dutee, in the meantime had already filed her appeal with the CAS court on September 26, 2014, challenging the IAAF Hyperandrogenism Regulations inter-alia on the basis that they discriminate unlawfully against female athletes and are based on flawed factual assumptions about the relationship between testosterone levels and athletic performance.

Jurisdiction of the CAS over the issue and power to grant provisional relief

The AFI is a member of the IAAF under Article 4 of the IAAF Constitution, and thus, as mentioned, is affiliated to and governed by the IAAF Regulations. Under Art. XXIV(1) of the AFI Constitution, the AFI committee has the power to suspend any athlete from National and International Competitions. This, read with Art. XXX(C) and (D) recognises that the AFI takes into account the IAAF Anti-Doping and other Technical Rules for ensuring compliance and as well as while taking decisions related to suspension. Articles 14.1(f) read with 14.7(f) of the IAAF Constitution further enable the IAAF Congress and the IAAF Council, respectively, “to exclude a Member’s athletes from any one or more of the types of International Meeting defined in the Rules.” Such a decision, “of the Council whether to suspend a Member under Article 14.7(a) or to issue any other sanction under Article 14.7 shall be subject to an appeal before the Court of Arbitration for Sport (CAS).[4]

The CAS derives its jurisdiction from Art.15 of the IAAF Constitution which provides that :

“ARTICLE 15

Disputes

  1. All disputes arising under this Constitution shall, in accordance with its provisions, be subject to an appeal to the Court of Arbitration for Sport in Lausanne (CAS).
  2. The CAS appeal shall be in accordance with the rules of CAS currently in force, provided always that the CAS Panel shall be bound to apply the Articles of this Constitution and the appellant shall file its statement of appeal within sixty days of the date of communication in writing of the decision that is to be appealed.

The CAS Appeal process is governed by the Statutes of the Bodies Working for the Settlement of Sports-Related Disputes, (“CAS Code”). Part C(3), Rule S20(b) provides for the creation of the “Appeals Arbitration Division, (that) constitutes Panels, whose responsibility is to resolve disputes concerning the decisions of federations, associations or other sports-related bodies insofar as the statutes or regulations of the said sports-related bodies or a specific agreement so provide….”.

The Procedural Rules begin at Recital R27, and these “apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) or may involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS(appeal arbitration proceedings)…Such disputes may involve matters of principle relating to sport or matters of pecuniary or other interests relating to the practice or the development of sport and may include, more generally, any activity or matter related or connected to sport.” Rules R47- R59 detail the Special Rules applicable to the Appellate Arbitration Process. Hence, it is the CAS that had jurisdiction over the claim in this matter, as it involved a challenge to an IAAF – AFI decision, along with a challenge to the rules themselves under which the decision was taken

It is interesting to note here that the appeal claimed that it ‘raises important issues of public interest and general application” and thus the arbitration proceedings, except her medical records, need not be kept confidential. However, since IAAF and AFI didn’t agree to a public hearing, a request for the same was denied by the CAS under R44.2 read with R57 of the CAS Code.

On November 25, 2014, provisional measures were sought on Dutee’s behalf, seeking permission for her to participate in athletics events during pendency of the arbitration proceedings, claiming that in light of her suspension, she was “under significant pressue from her major sponsor to undergo medical intervention”, and that continued absence from the tracks was increasing the pressure on her to seriously consider treatment. Thus, non-grant of interim remedies would lead to “irreparable harm”[5]. These measures were granted in two phases – First, a response from IAAF regarding Dutee’s plea for provisional measures was received on December 3, 2014, wherein the IAAF did not object to Dutee continuing to compete at national events. CAS thus confirmed on the same day that Dutee shall be allowed to compete at all national events, pending the pronoucement of a Final Award in the proceedings; Second, on March 26, 2015 the CAS Arbitral Panel directed that Dutee was also permitted to compete at the Asian Athletics Championsips that were to be held from June 3-7, 2015.

Decision

As stated above, the IAAF regulations in essence were aimed at determining how much testosterone can a female body possess which can lead to competitive advantage over other females? On July 24, 2015, the CAS handed down an interim arbitral award in Dutee Chand v AFI & IAAF. The CAS has effectively said that the existing evidence is insufficient to determine an exact level of testosterone, which can serve as a distinguishing criteria between males and females. The award suspends the IAAF Hyperandrogenism Regulations, “for a maximum period of two years in order to give the IAAF the opportunity to provide the CAS with scientific evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes.”

The CAS Interim Award is such, so that the IAAF is enabled to, in the two years at its disposal, submit further written evidence concerning the Hyperandrogenism Regulations that stand suspended, “in particular, the actual degree of athlectic performance advantage sustained by hyperandrogenic female athlestes compared to non hyperandrogenic female athletes, by reason of their high levels of testosterone”. The award also mandates that “…in the event no evidence is filed…or in the event that the IAAF confirms in writing to the CAS Court Office that it does not intend to file any such evidence, the Hyperandrogenism regulations shall be declared void.”

Nature of Interim Award by CAS

By virtue of R28 of the CAS Code, “The seat of CAS and of each Arbitration Panel (Panel) is Lausanne, Switzerland.” The concept that an arbitration is governed by the law of the place in which it is held, which is the ‘seat’ (or ‘forum’ or ‘locus arbitri’) of the arbitration, is well established in both the theory and practice of international arbitration.[6] The Swiss Federal Statute on Private International Law at Chapter 12 deals with international arbitration. Art. 176 provides that “The provisions of this chapter shall apply to all arbitrations if the seat of the arbitral tribunal is in Switzerland and if, at the time of the conclusion of the arbitration agreement, at least one of the parties had its domicile nor its habitual residence in Switzerland.”

It is understood that the power of an arbitral tribunal to issue partial or interim awards may derive from the arbitration agreement or from the applicable law.[7] Art. 188 of the Swiss Statute provides that “Unless the parties otherwise agree, the arbitral tribunal may render partial awards.”

The CAS Award of July 24, 2015 is an interim award that is to remain in force for a period of two years. While upon issuance of a final award an arbitral tribunal becomes functus officio, however, with respect to the interim award, the tribunal is functus officio only to the extent of the finality of the determination made in the interim award.[8] An interim award is nonetheless final in that it is open to challenge under Art. 190 of the Swiss Statute.

Concluding remarks

The IAAF has responded to the CAS Award via press release on July 27, 2015, mentioning that while it is happy that the CAS Panel acknowledged that “the IAAF and its experts have ‘acted with conspicuous diligence and good faith’, seeking ‘to create a system of rules that are fair, objective and founded on the best available science’, and that those rules ‘have been administered in confidence and with care and compassion’”, it intends to utilise the time given, recognising “that more evidence is required as to the precise degree of performance advantage that hyperandrogenic female athletes enjoy over athletes with normal testosterone levels, and its directive that the Regulations should be suspended for two years while that evidence is gathered….The IAAF will now meet as soon as possible with its experts and with the IOC and its experts to discuss how best to address this interim ruling by the CAS.”

Amongst other things, one specific question which the award leaves open is – if not testosterone levels, then what exactly aids in distinguishing male athletes from female athletes? The IAAF will either have to provide the relevant evidence in the two year span which the award permits or it would have to devise a new mechanism of identifying the dividing line between male and female athletes. The basis chosen for differentiating has to ultimately be reasonable and proportionate to the objective sought to be achieved.

* Aakanksha Kumar is an Assistant Professor at NLU Jodhpur and heads the Centre for Advanced Research and Training in Arbitration Law (CARTAL).

* Advocate, Supreme Court of India; LLM, Harvard Law School.

[1]For details on Caster Semenya and the IAAF Proceedings see Athlete Caster Semenya free to compete, BBC News, July 6, 2010, available at http://news.bbc.co.uk/sport2/hi/athletics/8793668.stm. (last visited August 31, 2015) See also John Branch, Dutee Chand, Female Sprinter With High Testosterone Level, Wins Right to Compete, NY Times, JULY 27, 2015 available at http://www.nytimes.com/2015/07/28/sports/international/dutee-chand-female-sprinter-with-high-male-hormone-level-wins-right-to-compete.html  (last visited August 31, 2015).

[2] IAAF Hyperandrogenism Regulations, Regulation 6.5 available at http://www.iaaf.org/download/download?filename=58438613-aaa7-4bcd-b730-70296abab70c.pdf&urlslug=IAAF%20Regulations%20Governing%20Eligibility%20of%20Females%20with%20Hyperandrogenism%20to%20Compete%20in%20Women%E2%80%99s%20Competition%20-%20In%20force%20as%25 (last visited August 20, 2015).

[3]IAAF Hyperandrogenism Regulations Explanatory Note, May 2011 available at http://www.iaaf.org/download/download?filename=fd073e9a-e217-431f-b06b-73e5349bd874.pdf&urlslug=IAAF%20Hyperandrogenism%20Regulations%20-%20Explanatory%20Notes%20-%20In%20force%20as%20from%201st%20May%202011 (last visited August 31, 2015).

[4] Art. 14.11, IAAF Constitution.

[5] R37, CAS Code, “…When deciding whether to award preliminary relief, the President of the Division or the Panel, as the case may be, shall consider whether the relief is necessary to protect the applicant from irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the Applicant outweigh those of the Respondent(s)….”

[6] Nigel Blackaby , Constantine Partasides , et al., Redfern and Hunter on International Arbitration, 179 (5th Ed., Oxford University Press, 2009).

[7]Id at p.519.

[8] See further Kempinski Hotels SA v PT Prima International Development, [2011] SGHC 171 at ¶¶30-32.

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