European Court of Human Rights Grand Chamber rules in favour of Caster Semenya – the result is not good news for CAS
By Prof Dr Steve Cornelius, Sports Law Centre, University of Pretoria, South Africa
The long running saga of South African middle distance athlete, Caster Semenya has reached some sense of conclusion, but only time will tell if this is really the end of the road for Caster Semenya or whether she has some other action up her sleeve that may now be revealed in the wake of the ruling made by the grand Chamber of the European Court for Human Rights in the case of Semenya v Switzerland (available at https://hudoc.echr.coe.int/?i=001-244348).
Semenya appealed the decision by World Athletics to adopt regulations that would require certain athletes with differences of sex development (DSD), to take hormone suppressing therapy to maintain their serum blood testosterone levels below 5nM/L. The matter was heard by the Court of Arbitration for Sport (CAS) in 2018 and CAS effectively ruled that the regulations were proportionate and necessary to maintain fairness in women’s athletics.
Semenya then took the matter on appeal to the Swiss Federal Supreme Court in terms of the Swiss Private International Law in 2019.
The Swiss Court rejected the appeal and Semenya took the matter to the European Court of Human Rights in 2021. In 2023, a majority in the third section of the European Court of Human Rights found that the DSD regulations violated articles 3, 8 and 14 of the European Convention on Human Rights and that the Swiss Court had, therefore, failed to protect Semenya’s right to a fair and impartial hearing as required in terms of article 6 (1) of the European Convention on Human Rights.
The Swiss government then took the matter on appeal to the Grand Chamber.
The Grand Chamber delivered it’s ruling on 10 July 2025 with 15 of the 17 judges upholding the finding of the third section that Switzerland had failed to protect Semenya’s right to a fair hearing as required in terms of article 6 (1) of the European Convention on Human Rights. However, the Grand Chamber held that it could not rule on the violation of Semenya’s rights in terms of articles 3 (prohibition of torture or cruel and inhuman treatment), 8 (right to private and family life) and 14 (right to equality) of the European Convention, since Semenya did not establish any personal connection with Switzerland or any other convention right that would entitle her to those protections.
However, in coming to the conclusion that Switzerland had failed to give effect to the right to a fair hearing, the Grand Chamber concluded that the matter raised serious public policy concerns relating to the DSD regulations as contemplated in article 190(2)(e) of the Swiss Private International Law Act of December 18 1987.
What is more important and most worrisome for international sports dispute resolution, is that the Grand Chamber considered the structures in terms of which the Court of Arbitration for Sport functions and the way in which arbitrators are appointed. The Grand Chamber paid specific attention to the appointment of members of the International Council of Arbitration for Sport (ICAS), as well as the oversight role which ICAS plays and the role which ICAS plays in maintaining the list of arbitrators that may be appointed to hear matters in CAS.
The majority in the Grand Chamber explained that “regard must be had to the fact that sports arbitration occurs in the context of the structural imbalance which often characterises the relationship between sportspersons and the bodies which govern their respective sports.”
The majority added:
“203. In addition, the inherent dominance enjoyed by sport governing bodies in the system of international sports arbitration must also be taken into account: the CAS was established under the auspices of the IOC; the members of the ICAS, the functions of which include adopting and amending the Code of Sports-related Arbitration and appointing the persons listed as CAS arbitrators, are appointed directly or indirectly by the Associations of Olympic International Sports Federations, the Association of the National Olympic Committees and the IOC; the ICAS is responsible for the functioning and financing of the CAS under the Code of Sports-related Arbitration, which the ICAS itself issued and which regulates the CAS and sets out its Procedural Rules (see paragraph 81 above).
204. In consequence, sport governing bodies are in a position to dictate conditions in their relationship with sportspersons, in that they regulate international sports competitions, are able to impose the mandatory and exclusive jurisdiction of the CAS for the examination of disputes relating to those regulations, and exercise structural control over the international sports arbitration system.”
This raises a serious concern relating to the impartiality of ICAS and CAS in the context of disputes between sports federations and athletes. At the very least, it imposes a duty on the Swiss Federal Supreme Court to play a significantly more active oversight role over CAS arbitrations.
However, at another level, it now requires the International Olympic Committee and international sports federations to take a hard look at ICAS and CAS and to consider reforms that will deal with the perceived bias towards sports federations.
A uniform structure for adjudicating sports disputes is vital for proper and fair sports competition at the international level. The IOC and the sports federations cannot afford a situation, where the structures established to achieve uniform adjudication, are now under suspicion.
The time is now to initiate a review of ICAS and CAS to ensure that the concerns, raised by the Grand Chamber, are addressed.
The Author may be contacted by e-mail at ‘
