October 07, 2025
Dr. Daniel Rietiker
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Between the first and the eight of October, the Strasbourg Observers blog is hosting a symposium examining various aspects of the ECtHR’s ruling in Semenya v. Switzerland. The symposium was curated by Dr. Antoine Duval and Dr. Faraz Shahlaei. An introduction to the symposium and the case can be found here.
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The present contribution aims at placing the judgment of the Grand Chamber of the European Court of Human Rights (the “Court”) in the case of Semenya v. Switzerland in the broader context of its – relatively recent – case law in the field of sport and at considering what the judgment means for the future role of the Court in adjudicating litigations in this domain (for early comments on the judgments, see Duval and Patel).
The point of departure for the Court’s role in sports is the judgment in the case of Mutu and Pechstein v. Switzerland. It concerned arbitration proceedings brought before the Court of Arbitration for Sport (CAS) by two top-level athletes, namely the Romanian football player Adrian Mutu and the German speed skater Claudia Pechstein. It is in many respects a ground-breaking judgement and the first one in which the Court had to decide on the compatibility with the ECHR of arbitration proceedings conducted before CAS. The Court laid important foundations for subsequent cases in this domain, including Semenya.
Particularly significant were the conclusions of the Court on two preliminary issues, namely on the jurisdiction ratione personae of the Court and the question whether, in submitting their disputes to CAS, the applicants had waived their fair trial rights under Article 6 ECHR. The answer to the latter question depended on the nature of sports arbitration.
Regarding the former issue, the Court observed that CAS is neither a domestic court nor any other institution of Swiss public law, but an entity emanating from the International Council of Arbitration for Sport (ICAS), a private-law foundation under Swiss law (para. 65). In addition, the disputes opposed two private, non-state parties, namely the athletes, on the one hand, and the relevant sport governing bodies (FIFA and International Skating Union, ISU), on the other. The Court, however, noted that, in certain exhaustively enumerated circumstances, Swiss law confers jurisdiction on the Swiss Federal Supreme Court (FSC) to examine the validity of CAS awards (sections 190 and 191 of the Private International Law Act). In addition, the FSC had dismissed the applicants’ appeals, thus attributing res judicata effect in the Swiss legal order to the awards in question (para. 66). It followed that the Court had jurisdiction ratione personae to examine the applicants’ complaints concerning the acts and omissions of the CAS that were validated by the FSC (para. 67).
As far as the second preliminary issue was concerned, i.e. the legal effects of the applicants’ submission of their disputes to CAS, the Court made the distinction between voluntary and compulsory arbitration. The Court held that, regarding Pechstein, the only choice that she had was between accepting the arbitration clause and thus earning her living by practising her sport professionally, or not accepting it and being obliged to refrain completely from earning a living from her sport (paras. 113-115). As a result, arbitration was forced (imposed) in her case. In contrast, Mutu had a choice between different fora of dispute resolution, but did not unequivocally waive his Article 6 § 1 ECHR rights insofar as he challenged the impartiality of certain CAS arbitrators (paras. 116-120). This meant that both applicants could rely on the guarantees of Article 6 § 1 ECHR in the proceedings before CAS.
The significance of the two findings, namely that the Court had jurisdiction to hear their cases, in spite of the ‘private’ nature of the proceedings before CAS and of the parties to the proceedings, and that the applicants had not waived their rights under the ECHR, cannot be overestimated and paved the path for the Court’s growing role in the protection of athletes’ rights.
On the merits, the Court’s conclusions were not novel insofar as it found, regarding Claudia Pechstein, that she had not been heard publicly neither before CAS nor before the FSC. Both applicants had also raised doubts regarding the independence and impartiality of CAS, but a majority of the Court did not find the proceedings incompatible with Article 6 § 1 ECHR (see, however, the partly dissenting opinion). More explicit on this point was the Court in a subsequent case concerning a domestic (non international) arbitration procedure, namely Ali Riza and Others v. Türkiye.
The case of Ali Riza and Others v. Türkiye concerned, inter alia, a professional football player of dual nationality (Turkish/British) who faced proceedings before the bodies of the Turkish Football Federation (TFF) for undue breach of contract engaged by his former club (Trabzonspor) after he had left the club to play in England. He alleged that the proceedings before the Arbitration Committee of the TFF, which had exclusive jurisdiction to hear the case, had lacked independence and impartiality.
In its judgment of 28 January 2020, the Court confirmed the two important findings of Mutu and Pechstein. First, it confirmed, implicitly, the jurisdiction of the Court in (private) sports arbitration cases. Second, the Court held that the applicable rules of the TFF had not left him a choice to determine the forum for the settlement of the dispute and, based on Mutu and Pechstein, that the arbitration was compulsory in nature (para. 176). On the merits, however, the Court went further than in that case and considered that there had been inadequate safeguards to protect the members of the Arbitration Committee against outside pressure, notably from the Board of Directors, the TFF’s executive body, which had undeniably a strong influence on the way the committee was organised and functioned. As a result, there had been a violation of Article 6 § 1 ECHR (paras. 211-223).
Another case dealing with a domestic arbitration (both parties had their domicile/seat in Switzerland) is noteworthy: In the case of Platini v. Switzerland, a former French football icon (Michel Platini), who later became president of UEFA and vice-president of FIFA, the Court confirmed its jurisdiction ratione personae (paras. 36-38) to examine, first, the proceedings before CAS and FSC and, second, the proportionality of the sanctions imposed by FIFA for allegedly having accepted a ‘salary supplement’ of 2M CHF in light of Article 8 ECHR (right to respect for private and family life). This is noteworthy because it was the first time that the Court examined an allegation of violation of a substantive provision of the ECHR in sports arbitration proceedings. The Grand Chamber, in the case of Semenya, did however not follow this path, as will be explained below.
In a decision of 11 February 2020, the Court declared this complaint inadmissible for being manifestly ill-founded.
In sum, in these two cases, the Court used the opportunity, not only to reiterate certain achievements of Mutu and Pechstein, but alsoto apply them to domestic sports arbitration. It thereby consolidated and expanded its role in sports.
And then came Caster Semenya. In a judgment of 11 July 2023, a Chamber of the Court concluded that there had been a violation of Article 14, combined with Article 8 of the ECHR due to the lack of procedural and institutional safeguards in the proceedings before CAS and FSC. The Swiss Government requested successfully the referral of the case to the Grand Chamber.
The first question that the Grand Chamber had to examine concerned, also in this case, the extent of its own jurisdiction, which depended on the question whether the facts of the case fell “under the jurisdiction” of Switzerland within the meaning of Article 1 ECHR. The Semenya case differed from Mutu and Pechstein and Alit Riza insofar as the applicant raised not only fair trial issues (Article 6 ECHR) but also violations of substantive ECHR guarantees. It was similar to the Platini case on this point.
A State’s jurisdiction under Article 1 ECHR is primarily territorial, that is, the facts complained of by an applicant must in principle have occurred on the territory of the respondent State. In the present case, the Court concluded that there was no territorial link between Switzerland, on the one hand, and the South African applicant, the adoption of the DSD Regulations by World Athletics, based in Monaco, and their effects on her personal situation, on the other, except for the proceedings brought before the CAS and the FSC (para. 127). As a result, the applicant did not fall within Switzerland’s territorial jurisdiction with respect to the substantive complaints under Articles 8, 13 and 14 of the ECHR (paras. 136-151). In addition, the Court did not consider that Switzerland’s jurisdiction was triggered by allowing an exception to the principle of territoriality. For this purpose, it distinguished the present case in particular from the Platini case (cited above) on which the Chamber had heavily relied, but which in fact concerned domestic, and not international arbitration proceedings (para. 139-141). It considered, however, that the applicant fell within Switzerland’s jurisdiction as concerned her complaint under Article 6 § 1 ECHR (paras. 128-135), following the approach in its previous case law, in particular Mutu and Pechstein (see above), where the Court had accepted its jurisdiction ratione personae to examine the applicants’ complaints concerning the acts and omissions of the CAS that had been validated by the FSC (paras. 65-67).
On the merits, the Court held, after pointing out the structural imbalance which characterised the relationship between athletes and the sport governing bodies, that respect for the applicant’s right to a fair hearing had required a ‘particularly rigorous examination’ of her case for the following three reasons (paras. 199-210): (1) the CAS’s mandatory and exclusive jurisdiction had been imposed on her by a sport governing body; (2) the dispute concerned one or more ‘civil’ rights within the meaning of Article 6 ECHR; and (3) those rights corresponded, in domestic law, to fundamental rights, in particular personality rights encompassing the right to privacy, bodily and psychological integrity and human dignity (paras. 206-209). In the present case, the Court considered that the FSC’s review had fallen short of the requirement of ‘particularly rigorous examination’, on account, in particular, of its restrictive interpretation of the notion of public policy (‘ordre public’), within the meaning of the Private International Law Act (para. 238). Accordingly, the Court found that Semenya had not benefited from the safeguards provided for in Article 6 § 1 of the ECHR.
It is argued here that the Grand Chamber confirmed and, indeed, reinforced its role as the ultimate arbiter of the rights of athletes, in particular for the following reasons:
First, on jurisdiction, it is significant that the Grand Chamber confirmed its jurisdiction regarding Article 6 ECHR and, therefore, further reinforced the Court’s role in supervising the compliance of the CAS and the FSC with the right to fair trial and due process when dealing with disputes in the context of international sports. This outcome, even though not spectacular, cannot be taken for granted, insofar as the Grand Chamber, the supreme instance of the Court, could have overturned the achievements accomplished in its previous cases that have been decided (only) by different chambers of the Court. As a result, the Court not only reiterated its willingness to play a role in this domain but even extended its protection to athletes who are not nationals of signatories of the Convention.
Second, on the merits of Article 6 ECHR, the Court recognised the structural imbalance which characterises the relationship between athletes and the sport governing bodies, which can normally impose unilaterally their rules on athletes. It derives from the Court’s judgment that this inequality of power and arms must be counterbalanced in favour of the athletes, which might otherwise be placed in a position of vulnerability.
Third, the Court stressed that sports arbitration, involving human beings and not abstract entities, cannot be compared with commercial arbitration and, as a result, that it might require a separate, stricter, regime of supervision. Without being explicit on this point, the Court insinuated that the very restrictive interpretation of the notion of ‘ordre public’ adopted by the FSC might not be appropriate in the context of the compulsory international sports arbitration conducted by the CAS (para. 237).
Fourth, the Court held that respect for the applicant’s right to a fair trial had required a ‘particularly rigorous examination’ of her case due to the specificities of sports arbitration, and even more so because her fundamental human rights were at stake. This conclusion is remarkable insofar as it is not common practice for the Court to carve out specific domains or topics where a higher standard of scrutiny shall apply under Article 6 ECHR.
It derives from the judgment that the Grand Chamber did not consider the alleged discriminatory nature of the DSD Regulations. Even if many who expected the Court to rule on these regulations might find it regretful, it is not surprising, in the author’s view, in particular in light of the principle of subsidiarity guiding the Court’s role as well as the sensitivity and complexity of the issues at stake, that it has opted for a process-based analysis, focusing on the domestic decision-making process as a whole (see, for example under Article 8 ECHR, Pindo Mulla v. Spain, paras. 129-130).
It may also be argued that, for the future protection of human rights of athletes and for justice in sport more generally, the findings of the Court under Article 6 ECHR, requiring a particularly high standard of scrutiny of the proceedings before CAS and FSC, are more significant than potential findings under Article 14 ECHR regarding the very specific DSD Regulations, which are very controversial and, moreover, undergo constant changes. In addition, it is argued here that, by no means did the Court endorse the DSD Regulations, it simply left the question of their compatibility with the ECHR unanswered due to jurisdictional obstacles (see Michele Krech who deducts from the judgment delivered by the Chamber in 2023, that the DSD Regulations are incompatible with Swiss ‘ordre public’ and, as a result, in violation of the ECHR).
Moreover, on the individual level, the judgment of the Grand Chamber will allow Semenya to request revision before the FSC in accordance with Article 122 of the Act on the Federal Tribunal. In parallel, Switzerland will have to implement the final judgment of the Grand Chamber under the supervision of the Committee of Ministers, according to Article 46 § 2 ECHR. Through these two avenues, certain aspects that have been left open by CAS and the FSC might have to be re-examined more in detail, which might have some repercussions on the DSD Regulations as well.
Finally, the author considers that the jurisdictional approach of the Grand Chamber leaves certain doors open: in particular, it will have to be seen whether the Court will accept jurisdiction for athletes (with residence outside Switzerland and without Swiss nationality) who are engaged in CAS proceedings with those sports federations that are based in Switzerland. Following the logic of the Grand Chamber in Semenya, it is not excluded that a football player, for example from Brazil, South Africa or Japan, who is challenging the regulations or decisions of FIFA, based in Switzerland (as many other international federations are), could rely not only on Article 6 ECHR, but also on the substantive ECHR guarantees, including Articles 8 and 14.
In conclusion, it appears it can be said that the proceedings before the Grand Chamber have just been another lap in the long run for justice of this remarkable athlete and, at the same time, have allowed the Court to consolidate, deepen and expand its role as the ultimate arbiter for human rights claims of athletes. At the same time, the Court also confirmed that it did not intend to challenge the current sports arbitration regime – with CAS as the main pillar – as a whole, but to contribute to its improvement step by step from a human rights’ point of view, entirely in line with its previous case law in this domain.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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