Interim Arbitral Award Court of Arbitration for Sport
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CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) INTERIM ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: The Hon. Justice Annabelle Claire Bennett AO, Federal Court of Australia, Sydney, Australia Arbitrators: Prof. Richard H. McLaren, attorney-at law in London, Canada _ Dr Hans Nater, attorney-at-law in Zurich, Switzerland Ad hoc Clerk: Mr Edward Craven, barrister in London, United Kingdom in the arbitration between Ms Dutee Chand, Odisha, India Represented by Mr James Bunting, Mr Carlos Sayao, and Hon. Morris J. Fish Q.C. of Davies Ward Phillips & Vineberg LLP in Toronto, Canada Appellant and Athletics Federation of India (AFI), New Delhi, India First Respondent The International Association of Athletics Federations (IAAF), Monaco Cedex Represented by Mr Jonathan Taylor and Ms Elizabeth Riley of Bird & Bird LLP in London, United Kingdom Second Respondent CAS 2014/A/3759 Dutee Chand v. AFI & TAAP -Page 2 I. PARTIES 1. Dutee Chand (the "Athlete") is a 19 year-old female athlete of Indian nationality. During her career to date she has won a number of national junior athletics events in India. In addition, she won gold medals in the women's 200 metres sprint and the women's 4 x 400 metre sprint relay at the Asian Junior Track and Field Championships in Taipei in May 2014. 2. The Athletics Federation of India (the "AFI") is the national governing body for the sport of athletics in India. 3. The International Association of Athletics Federations (the "IAAF") is the international governing body of the sport of athletics, recognised as such by the International Olympic Committee. It has its seat and headquarters in Monaco. The IAAF recognises the AFI as its member federation for India. II. OVERVIEW OF THE CASE 4. This case concerns a challenge to the validity of the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition (the "Hyperandrogenism Regulations"). The Hyperandrogenism Regulations place restrictions on the eligibility of female athletes with high levels of naturally occurring testosterone to participate in competitive athletics. In particular, the Athlete challenges the Hyperandrogenism Regulations on the basis that: (a) they discriminate unlawfully against female athletes and against athletes who possess a particular natural physical characteristic; (b) they are based on flawed factual assumptions about the relationship between testosterone and athletic performance; (c) they are disproportionate to any legitimate objective; and (d) they are an unauthorised form of doping control. The IAAF rejects each of those arguments. 5. The case raises complex legal, scientific, factual and ethical issues. The parties' submissions draw upon a diverse range of expert scientific evidence, factual accounts of the evolution of the Hyperandrogenism Regulations and the experiences of female athletes who were subjected to their "gender testing" and "sex verification" predecessors, and philosophical arguments about the meaning of fairness in sport. The CAS 2014/A/3759 Dutee Chand v. AFI & IAAF - Page 3 length of this Award is a reflection of the complexity of those issues, and the exceptional care and detail in which they were presented to the Panel by the parties' representatives. m. FACTUAL BACKGROUND 6. Below is a summary of the relevant facts and allegations based on the parties' written submissions, pleadings and evidence adduced at the CAS hearing on 23 - 26 March 2015. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning. A. Background Facts 7. The Athlete was born in Odisha, India on 3 February 1996. She began competing in junior-level athletics competitions in 2007. 8. Since March 2012, the Athlete has been a resident athlete at the National Institute of Sports ("NIS") in Patiala, India. The NIS is a training facility for elite Indian athletes operated by the Sports Authority of India ("SAI"). The SAI is a public body that was established in 1982 by the Government of India's Ministry of Youth Affairs and Sports (the "Ministry"). The SAI performs a range of functions on behalf of the Ministry relating to the governance and promotion of sport in India and the training of elite athletes. It is not affiliated to the IAAF and is not subject to the IAAF's regulatory jurisdiction. 9. In 2013, the Ministry promulgated a Standard Operative Procedure to identify circumstances (female Hyperandrogenism) in which a particular sports person will not be eligible to participate in competitions in the female category (the "Standard Operative Procedure"). The Standard Operative Procedure created rules and procedures governing the investigation, diagnosis and eligibility to compete of hyperandro genie female athletes in India. The document is binding on the SAI. 10. It is common ground that in late June 2014, the Director of the AFI, Mr M.L. Dogra, contacted the Athlete and asked her to meet him in Delhi on the way to a SAI training CAS 2014/A/3759 Dutee Chand v. AFI & IAAF - Page 4 centre in Bangalore. On 26 June 2014, Mr Dogra met the Athlete in Delhi. Aspects of the events that followed are a matter of dispute between the parties. 11. According to the Athlete, Mr Dogra asked her to undergo a "routine doping test". The following day, on 27 June 2014, the Athlete met the Chairperson of the AFI Medical Commission, Dr Arun Mendiratta, in Delhi. The Athlete claims Dr Mendiratta told her that the AFI was creating a "high performance profile" for her and they therefore needed to conduct a routine medical examination to check if she had any diseases. The Athlete claims she was told that, because no nurses were available to conduct a blood test, she would need to undergo an ultrasound examination instead. The Athlete says that she was confused by the examination and did not understand why an ultrasound scan was conducted in place of a blood test. 12. According to the AFI, the Athlete and another athlete underwent ultrasound examinations in Delhi after they had both complained of chronic abdominal pains. Dr Mendiratta said that in June 2014 several participants at the National Inter State Athletics Championships had expressed concerns to the AFI about the Athlete's appearance and questioned whether she should be permitted to compete in female athletics events. However he denied that the medical examination in Delhi had anything to do with investigating the Athlete's sex or gender or testing for possible hyperandrogenism. 13. On 30 June 2014, the AFI sent a letter about the Athlete to the SAL The letter, which was signed by the Secretary of the AFI, Mr C.K. Valson, was entitled "Subject:- Gender Verification Issue". It stated: It has been brought to the notice of the undersigned that there are definite doubts regarding the gender of an Athlete Ms. Dutee Chand. The athlete has won a Gold Medal in 200m (Women) and as well as 4X400 Relay (Women), in the recently concluded 17th Asian Junior Athletics Championships held at Chinese Taipei. During the above mentioned championships, also, doubts were expressed by the Asian Athletics Association regarding her gender issue. As is aware [sic] that in the previous past also such cases of Female Hperandrogenism [sic] have brought embarrassment to the fair name of sports in India. She is presently training at SAI Centre Bangalore, Karnataka. CAS 2014/A/3759 Dutee Chand v. AFI & TAAF - Page 5 14. The letter went on to say that the AFI was unable "to identify any suitable female Nodal officer" as required by the terms of the Standard Operative Procedure. The letter suggested that, in these circumstances, the SAI could perform a "Gender verification test" on the Athlete: In view of the above you may like to conduct Gender verification test of Ms. Dutee Chand as per the established protocol, so as to avoid any embarrassment to India in the International arena at a later stage. The matter may be taken up on an urgent basis as the athlete is bound to leave on 18lh July, 2014, for World Junior Athletics Championships. 15. It is common ground that following the medical examination in Delhi, the Athlete travelled on to an SAI training camp in Bangalore and was subjected to further medical examinations by the SAI. The Athlete stated that those tests included blood tests, clinical tests by a gynaecologist, karyotyping, an MRI examination and a further ultrasound examination. 16. According to the Athlete, on 13 July 2014 Dr Sarala of the SAI notified her that she would not be permitted to compete in the forthcoming World Junior Championships and would not be eligible for selection for the Commonwealth Games because her "male hormone" levels were too high. 17. On 15 July 2014, the Director-General of the SAI, Mr Jiji Thomson, issued a public statement announcing that an unnamed female athlete had been subjected to a gender test: A gender test was conducted on a woman athlete in Bangalore. If she is there in the list ofCWG [Commonwealth Games] participants, her name will have to be deleted from the list. 18. From 15 July 2014 onwards, a number of articles were published in the Indian press speculating that the Athlete had been made to undergo tests to determine her gender. 19. On 16 July 2014, the SAI issued a press release stating that an athlete had been found ineligible to participate in female events due to hyperandrogenism. According to a news article published in The Hindu newspaper (which was exhibited to Dr Mendiratta's witness statement) the press release stated that: CAS 2014/A/3759 Dutee Chand v.