The ECtHR’s Final Ruling in Semenya v Switzerland: A Missed Opportunity to Uphold Human Rights in Sports?

The article discusses the recent Grand Chamber judgement of the European Court of Human Rights in Semenya v Switzerland, a landmark decision addressing the protection of fundamental rights in sports governance and arbitration. Ms. Semenya, a South-African intersex athlete, was barred from international competitions following her refusal to comply with World Athletics regulations requiring her to undergo medical treatments in order to lower her natural level of testosterone. Following unsuccessful attempts to challenge the legality of such regulations before the Court of Arbitration for Sports and, in appeal, the Swiss Federal Supreme Court, she turned to the ECHR alleging violations of several substantive Convention guarantees, as well as the right to a fair trial. Reversing the first instance decision, the recent Grand Chamber ruling affirmed that the applicant fell under Switzerland’s jurisdiction only in relation to the complaint under Article 6 ECHR. This article criticizes the functional distinction between procedural and substantive rights for the purposes of delineating States’ jurisdiction introduced – arguably for the first time – in Semenya. At the same time, it shows how the stringent standard of review articulated by the Grand Chamber under Article 6 ECHR for national courts hearing appeals over sports arbitrations demands a close engagement with the protection of fundamental rights involved those arbitrations as well as, potentially, other forms of mandatory arbitral proceedings. Finally, the article offers a comparative analysis of parallel developments concerning sports arbitrations before the Court of Justice of the European Union, drawing upon the recent decisions in RFC Seraing and International Skating Union.