Caster Semenya. A name that has become synonymous with controversy and behind-closed-doors tribunals and rulings. Since 2009, having won the 800m at the World Championships and been subjected to a ‘sex verification test’, she has been struggling against the IAAF and various other bodies for recognition.
In the end however, she reached the Court of Arbitration for Sport (CAS). She lost and that was it. Subsequent complaints centred not on the CAS but on fundamental unfairness. Indeed, although a nominal appeal is ongoing, Semenya herself appears to be preparing for a career outside athletics, having joined JVW, a women’s football club in South Africa.
FINA’s Doping Panel body is fundamentally flawed – look, it let Sun Yang compete, despite him destroying a surprise blood sample with a hammer. The IAAF has always been against Semenya. The point is that each of these individual processes can be discredited, no matter how much they purport to don a cloak of independence and virtue – they are still in the employ of the principal organisation.
Not so the CAS. It stands resolute, a pillar of anonymous and impartial justice, which is, uniquely, beyond reproach. Issues go off to the court and an ultimate, unimpeachable, verdict is returned – but there is a great degree of uncertainty as to how and by whom it has been reached.
The concept of a formal ‘sports court’ was only conceived by the International Olympic Committee (IOC) President Samaranch in the early 1980s. This was in response to a rise in sports-related legal disputes, where the lack of a specialised authority had become increasingly apparent. Formally established in 1984, the first court was led by President Kéba Mbaye, who had also chaired the working group which had recommended its formation.
Indeed, as bystanders observed, this close relationship, impugning one of the Court’s most vaunted attributes – its independence, threatened to undermine the Court in the early years. This came to a head in the Gundel judgment in 1993, where the Federal Supreme Court of Switzerland pronounced that for the CAS to maintain its integrity, greater independence was required. This precipitated major reform of the CAS, the keystone of which was the formation of the International Council of Arbitration for Sport , which would take control of the CAS from the IOC, making it definitively independent from the organisation which had sponsored it from the beginning.
The Council is also responsible for the appointment and supervision of the approximately 380 arbitrators and mediators who work in the CAS. These arbitrators generally preside over cases in three strong panels. Where both parties agree however, arbitrators can preside alone. Proceedings generally take place in private, with only two recorded exceptions – Irish swimmer Michelle De Bruin’s failed attempt to overturn her ban for sample tampering in 1999 and the upcoming WADA appeal against Sun Yang’s acquittal by FINA.
Although CAS decisions can technically be appealed to the Federal Supreme Court of Switzerland (as Semenya is doing), these appeals rarely succeed and proceed, in the main, as an assessment as to whether legal procedure has been correctly adhered to. As of 2012, there were 7 successful appeals, with only one overturned on its own merits. This trend has continued in recent years. In effect, its decisions are final and cases which have been fought long and hard through various appeal processes finally rest with the CAS.
The Olympics, near-universally acknowledged as the pinnacle of athletic competition, unsurprisingly gave rise to a huge number of CAS cases. Belatedly restored medals are becoming ever more common, as doping and other offences come to light. However while, technically the athlete will be noted as the champion of record, in reality they will have experienced a fraction of the wealth, both financial and in emotional experience, of an Olympic win.
In response, recent editions of the ancient grecian games in Pyeongchang, Rio and Sochi have seen the establishment of ‘ad hoc’ Courts in the host city, in the immediate run up and during the games to facilitate speedy resolutions. Sport cannot wait. The glory of a potential Olympic champion to be, a unique moment in time, cannot be cast aside by delays in accessing justice.
CAS decisions can be wide reaching, having an impact both on Olympic medal allocations and those whose dreams are fulfilled by simply taking part. In 2016 there were some who argued Bertram Allen should take Horse Sport Ireland to the CAS over their non-selection of him for the Olympic spot which his own ranking had earned. Ultimately, any appeal would likely have been fruitless as the CAS does not assess which of two athletes is better or which is more likely to win a medal at the Games, focusing instead on procedural fairness.
Perhaps most infamous of all, is the Semenya case. For her however, who once waxed lyrical of the Court’s independence and wisdom and spoke of looking forward to having her case and situation finally respected and accepted, its decision signalled the ultimate blow. Her buttering up having failed, any appeal likely to be token, her case drew international attention to the oft-mysterious and murky ways of the CAS. Ultimately, despite her protestations, the sporting world at large has submitted itself to the CAS, and so must she. So must we all.