CAS Decision

CAS 2018/0/5794 Mokgadi Caster Semenya v. International Association of Athletics Federations CAS 2018/0/5798 Athletics South Africa v. International Association of Athletics Federations ARBITRAL AWARD Delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: The Han. Dr. Annabelle Bennett AO SC, Retired Judge, Sydney, Australia Arbitrators: The Han. Hugh L. Fraser, Judge, Ottawa, Ontario, Canada Dr. Hans Nater, Attorney-at-Law, Zurich, Switzerland Ad hoc Clerk: Mr. Edward Craven, Barrister, London, England in the arbitration between Mokgadi Caster Semenya, South Africa Represented by Mr. James Bunting and Mr. Carlos Sayao, Attorneys-at-Law with Davies Ward Phillips & Vineberg LLP in Toronto, Ontario, Canada, and Mr. Gregory Nott, Mr. Patrick Bracher, and Ms. Sandra Sithole, Attorneys-at-Law with Norton Rose Fulbright South Africa, Inc. in Sandton, Gauteng, South Africa First Claimant Athletics South Africa, South Africa Represented by Mr. Norman Arendse SC, Ms. Ncumisa Mayosi, of Counsel and Mr. Dev Maharaj and Ms. Jean Kelly, Attorneys-at-Law with Dev Maharaj and Associates, Inc. in Bryanston, Gauteng, South Africa Second Claimant and International Association of Athletics Federations, Monaco Represented by Mr. Jonathan Taylor QC and Mr. Chris Lavey, Attorneys-at-Law with Bird & Bird in London, England, and Ms. Elizabeth Riley, Attorney-at-Law in Bonn, Germany Chilteau de Av. de Beaumont 2 CH -1012 Lausanne Tel: +41 21 613 l)O 00 : +11,1 21 613 50 01 www.tas-cas.org CAS 2018/0/5794 & CAS 2018/0/5798 -Page 2 I. OVERVIEW OF THE CASE 1. This dispute arises under the Constitution of the International Association of Athletics Federations (the "IAAF"), in force as from 1 November 2017, following the IAAF's decision to enact the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the "DSD Regulations"). 2. Ms. Mokgadi Caster Semenya ("Ms. Semenya" or the "Athlete") and Athletics South Africa ("ASA") (collectively, the "Claimants") assert inter alia that the DSD Regulations unfairly discriminate against athletes on the basis of sex and/or gender because they only apply (i) to female athletes; and (ii) to female athletes having certain physiological traits. They contend that the DSD Regulations lack a sound scientific basis; are unnecessary to ensure fair competition within the female classification; and are likely to cause grave, unjustified and irreparable hmm to affected female athletes. Accordingly, the Claimants seek a judgment from the CAS declaring the DSD Regulations unlawful and preventing them from being brought into force on the basis that they are unfairly discriminatory, arbitrary and disproportionate and therefore violate the IAAF Constitution, the Olympic Charter, the laws of Monaco, the laws of jurisdictions in which international athletics competitions are held, as well as universally recognised fundmnental human rights. II. PARTIES 3. Ms. Semenya is a female athlete of South African nationality. She specialises in middle distance races and has achieved outstanding success at the elite international level. In the 800m event she finished in first place at the 2009, 2011 and 2017 IAAF World Championships and the 2012 and 2016 Olympic Games. 4. ASA is the national governing body for the sport of athletics in South Africa. Its seat and headquarters are located in Johannesburg, South Africa. 5. The IAAF is the international governing body of the spmi of athletics, recognised as such by the International Olympic Committee. It has its seat and headquarters m Monaco. The IAAF recognises ASA as its member federation for South Africa. III. FACTUAL BACKGROUND 6. The parties adduced extensive evidence and submissions. Below is a summary of the relevant facts and allegations based on the parties' written submissions, pleadings and evidence adduced at the hearing before the Panel on 18 to 22 February 2019. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the pmiies in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning. Similarly, the Panel has refeiTed to the expertise of the expert witnesses called by the pmiies by broad description. In each case, details of relevant expertise were provided in the evidence. 7. In September 2014, Dutee Chand, a female athlete of Indian nationality, brought proceedings before the CAS against the IAAF and the Athletics Federation of India CAS 2018/0/5794 & CAS 2018/0/5798- Page 3 ("AFI") appealing against the AFI' s declaration that she was ineligible to compete under the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition (the "Hyperandrogenism Regulations"). 8. On 24 July 2015, the CAS delivered an Interim Award partially upholding Ms. Chand's appeal and suspending the Hyperandrogenism Regulations for a period of up to two years (CAS 2014/A/3759 Dutee Chand v AFI & IAAF). The Interim Award stipulated that at any time during that period the IAAF could submit further written evidence and expeti reports addressing the Panel's concerns set out in the Interim Award (in particular regarding the actual degree of athletic performance advantage sustained by hyperandrogenic female athletes, as compared to non-hyperandrogenic female athletes, by reason of their high levels of testosterone). 9. Following a shoti extension ofthe two-year deadline, on 29 September 2017 the IAAF filed expert evidence and legal submissions seeking to support the Hyperandrogenism Regulations. The CAS subsequently made an order by consent of the patties suspending the proceedings in Chand for a futiher six months, during which time the Hyperandrogenism Regulations remained suspended. 10. On 9 March 2018, the IAAF informed the CAS Panel that it intended to withdraw the Hyperandrogenism Regulations and to replace them with new Regulations, which would take effect on 1 November 2018. In light of that development, and the fact that the Hyperandrogenism Regulations as sought to be supported did not apply to Ms. Chand, the proceedings in Chand were terminated. 11. On 5 and 6 March 2018, a meeting of the IAAF Council took place in Birmingham, United Kingdom. During the course of that meeting, the IAAF Council approved the enactment ofthe DSD Regulations. On 23 April2018, the DSD Regulations were sent to the IAAF's member federations together with accompanying Explanatory Notes. 12. The relevant provisions of the DSD Regulations are set out below. In summary, the DSD Regulations establish new mandatory requirements governing the eligibility of women with certain differences of sex development ("DSD") and levels of endogenous testosterone above 5 nmol/L to participate in the female classification in eight events (the "Restricted Events") at international athletics competitions ("International Competitions"). Athletes who fall within the ambit of the Regulations are defined as "Relevant Athletes". The Restricted Events include 400m, 800m and 1500m races events in which Ms. Semenya regularly participates at International Competitions. The text of the relevant provisions of the DSD Regulations is set out below. 13. The DSD Regulations came into force on 1 November 2018. Prior to that date, however, Ms. Semenya and ASA each initiated proceedings before the CAS challenging the validity of the DSD Regulations. The history of these proceedings before the CAS, which were formally consolidated as ordinary arbitration proceedings on 29 June 2018, is summarised immediately below. CAS 2018/0/5794 & CAS 2018/0/5798- Page 4 IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT 14. On 18 June 2018, Ms. Semenya filed her request for arbitration with the CAS against the IAAF requesting inter alia that the DSD Regulations be declared unlawful in accordance with Article R38 of the Code of Sports-related Arbitration (the "CAS Code"). In her request for arbitration, Ms. Semenya nominated the Hon. Hugh L. Fraser as arbitrator. 15. On 25 June 2018, ASA filed a statement of appeal against the IAAF similarly seeking a declaration that the DSD Regulations be declared unlawful in accordance with Aliicle R47 et seq. of the CAS Code. In its statement of appeal, ASA nominated Ms. Susan Ahem as arbitrator. 16. On 26 June 2018, following email communication between the CAS Court Office and ASA, the CAS Court Office confirmed that ASA's statement of appeal would be converted to a request for arbitration and its procedure referred to the CAS Ordinary Arbitration Division. 17. On 27 June 2018, the IAAF appointed Dr. Hans Nater as arbitrator in both procedures and, with the agreement of Ms. Semenya, suggested that the Hon. Dr. Annabelle Bennett be appointed Chair of the Panel presiding over this procedure. Both Dr Nater and Dr Bennett sat on the Chand Panel. 18. On 28 June 2018, ASA objected to the appointment in this procedure of any members of the Chand Panel. At the same time, ASA withdrew its nomination of Ms. Ahem and joined in a joint nomination ofHon. Hugh Fraser with Ms. Semenya. 19. On 29 June 2018, the CAS Court Office, on behalf of the President of the Ordinary Arbitration Division, and following the agreement of all parties, confirmed the consolidation of both procedures in accordance with Article R39 of the CAS Code. 20. On 23 July 2018, the CAS Court Office, on behalf of the President of the Ordinary Arbitration Division, confirmed the constitution of the Panel as follows: President: The Hon. Dr Annabelle Bennett AO SC, Retired Judge, Sydney, Australia Arbitrators: The Hon. Hugh L. Fraser, Judge, Ottawa, Ontario, Canada Dr. Hans Nater, Attorney-at-Law, Zurich, Switzerland 21. On 30 July 2018, ASA filed a petition to challenge the appointment of both the Hon. Dr. Annabelle Bennett and Dr. Nater to the Panel. The petition was objected to by Ms. Semenya and the IAAF. 22. On 6 August 2018, the IAAF filed a consolidated answer to the consolidated requests for arbitration in accordance with Aliicle R39 of the CAS Code.

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