October 10, 2025
Emilie Weible, Claudio Cerqueira, Dr. Marjolaine Viret
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This is the final post in our symposium on the ECtHR Grand Chamber 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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On 11 July 2025, the Grand Chamber of the European Court of Human Rights (ECtHR or ‘the Court’) issued its long-awaited decision in Caster Semenya v Switzerland, a legal battle that dates back to 2018. This ruling represents the latest sequel in a series of decisions involving the Court of Arbitration for Sport (CAS), the Swiss Federal Supreme Court (FSC) and, last but not least, the ECtHR. This post will focus mainly on: (I) the Grand Chamber’s assessment of Switzerland’s responsibility, and (II) the possible consequences of the ECtHR’s final judgment for Switzerland and dispute resolution in international sports. An overview of the facts of the case, a summary of the judgment and the applicant’s situation can be found here.
While the Chamber examined Ms Semenya’s complaints under Article 14 in conjunction with Article 8 and Article 13 in conjunction with Articles 14 and 8, the Grand Chamber (GC) concluded that it only had jurisdiction to examine her complaint under Article 6. The sub-sections to follow will discuss how it reached this conclusion (A) and how the DSD regulations may be challenged further in light of the GC’s decision (B).
The GC released its final judgment on 10 July 2025. As it had done when the case was at the Chamber level, before the GC, Switzerland raised the preliminary objection that the ECtHR had jurisdiction only with respect to the right to a fair hearing under Article 6(1) ECHR (para. 100). The GC upheld that objection, denying its jurisdiction regarding Articles 8, 13 and 14 (para. 135).
Human rights advocates have criticised the GC’s decision to limit its jurisdiction, claiming that Switzerland, as the seat of several major sports governing bodies (SGBs), should have positive obligations to uphold the full spectrum of rights set out under the ECHR, not limited solely to procedural guarantees. World Athletics is not one of those SGBs, however, and it is challenging to establish that Switzerland has jurisdiction over private associations located abroad — to do so would amount to attributing a de facto responsibility for the actions of private entities incorporated in other countries to Switzerland. Considering that World Athletics has its seat in Monaco, it is Monaco that bears the legal responsibility to protect individuals from human rights violations committed by private bodies (including SGBs). However, as previous ECtHR case law demonstrates, the Semenya ruling does not pre-empt a full assessment of substantive ECHR safeguards by the ECtHR where the subject matter of the dispute has a sufficient link to Switzerland. Indeed, in a case involving FIFA – a private association organised under Swiss law – and an employee regarding his official duties within the association, in Switzerland, the ECtHR determined that Switzerland had jurisdiction in relation to substantive guarantees of the ECHR.
With its ruling in Semenya, the GC determined that the ECtHR did not have jurisdiction to decide on whether the DSD Regulations were discriminatory, but that the FSC had failed to consider that very question in a sufficiently in-depth manner (para. 228), violating the applicant’s right to fair trial. The limitation of the Court’s review to Art. 6(1) ECHR does not exempt Switzerland from any review of CAS proceedings. The GC decided that Switzerland must conduct a ‘particularly rigorous analysis’ of arbitration awards that concern fundamental rights and were subject to a compulsory arbitration in which there is an imbalance of power between the sportsperson and the SGB.
Semenya’s application before the ECtHR was not a challenge of the CAS or FSC decision per se, but an independent action brought against a State Party (Art. 34 ECHR). Therefore, even though the GC found that Article 6 had been violated, its ruling did not annul the CAS award, the FSC decision, or the DSD Regulations themselves.
For Semenya, the GC decision is final: she cannot submit the same claim based on the same facts to United Nations treaty bodies such as the CEDAW Committee (Art. 4(2) of the Optional Protocol to the CEDAW). It may, however, have been possible for her to file a request for revision of the FSC decision before the FSC itself within 90 days of the GC ruling being delivered pursuant to art. 122 of the Swiss Federal Tribual Act (‘FSC Act’). This option is only available where financial compensation is not deemed sufficient to remedy the damage caused by the violation of the ECHR. Although this option may have been available to Ms Semenya, she has announced through her lawyer on 2 October 2025 that she does not plan to reopen the case before the FSC. This means that the ECtHR’s decision will remain the final step in her legal battle.
This announcement may be tied to the additional uncertainty which would have surrounded any request for revision introduced, given that World Athletics has made major changes to its regulatory approach towards the female category as of 1 September 2025. This illustrates the difficulty inherent in seeking legal answers from judicial bodies in domains where policy-making is in constant flux. The adoption of the new regulations might have undermined Semenya’s ‘current interest’ (intérêt actuel) in challenging the decision, something which is required to obtain a new decision from the FSC on the abstract validity of regulations that are no longer in effect.
In the future, other athletes – or again Semenya – could also appeal to CAS against a decision from World Athletics regarding a specific application of the DSD Regulations or, rather, the new Regulations for the Implementation of Eligibility Rules 3.5 (Male and Female Categories), which have replaced those in the meantime. Were such a challenge to be taken, the resulting CAS award could again be challenged before the FSC, and one may hope that the Swiss court would take into account the ECtHR’s requirements in its assessment of the new case.
The issue of the independence and impartiality of CAS under Art. 6(1) ECHR was raised before the GC (para. 83), although it was not decided upon as it did not fall within the scope of argument in the case (paras. 90-91). The GC nevertheless acknowledged the dominance and structural control exercised by SGBs over the international sports system. It only did so, however, to justify the need for the FSC to conduct a ‘particularly rigorous examination’ of CAS’s decisions, without drawing any conclusions as to the compatibility of the CAS as an institution with the requirements of Art. 6 ECHR (paras. 202-203). In doing so, the majority undermined the credibility of CAS without striking it down, creating more confusion than clarity about the landscape of dispute resolution in sports.
Judge Šimáčková emphasised this point in a partly concurring opinion. She argued that the majority should have explicitly addressed this question and concluded that CAS is not ‘an independent and impartial tribunal established by law’, as it is not based on law but on a private agreement, under the aegis of a foundation which is mainly run and financed by SGBs. She further argued that the possibility of appealing CAS’s ruling before the FSC did not mitigate this lack of independence and impartiality due to the FSC’s limited power of review (para. 25 of the opinion). Following Šimáčková’s logic, athletes could arguably seize the ECtHR against Switzerland following any instance of forced arbitration before CAS, complaining that Article 6(1) had been violated due to the structural imbalance and the associated unfair procedural advantage enjoyed by the SGBs before CAS.
In its earlier ruling in Mutu and Pechstein v Switzerland, the ECtHR affirmed CAS as a valid ‘independent and impartial tribunal’ within the meaning of Art. 6 ECHR, provided that CAS proceedings afford parties the benefit of all requirements of Art. 6 ECHR (e.g. the option of a public hearing). This requirement was introduced to account for the forced nature of the arbitration. In Semenya, no elements of the procedure followed before the CAS were found to infringe Art. 6. Nevertheless, by finding that the FSC needed to conduct a ‘particularly rigorous examination’ of CAS’s decisions, the GC seems to imply that something more is required in terms of review on the part of the FSC where forced arbitration is concerned, and that this higher requirement for review applies regardless of whether the CAS procedure already complied with Art. 6 ECHR.
The questioning of CAS’s conformity with the ECHR requirements by the GC, and future assessment of this question by the ECtHR, could have major consequences on the dispute resolution system in sports. If panels appointed under the auspices of the CAS continue to qualify as ‘tribunals’ within the meaning of Art. 6 ECHR, as the majority of the Court seemed to assume, the rationale for requiring them to be subjected to a more extensive review by the FSC is not immediately obvious; this is because they would already provide the full review required by Art. 6 ECHR. If CAS does not qualify as an arbitration institution that can appoint ‘independent and impartial tribunals’ within the meaning of Art. 6 ECHR, then the Swiss system does not allow simply for the SFC to come in and conduct a somewhat more rigorous examination of their decisions, as the ECtHR would want it to do as a way of compensation. Rather, the entire sequence of legal avenues would be different from the outset: CAS panels would no longer render actual ‘arbitral awards’ within the meaning of the Federal Act on Private International Law (PILA) and their decisions would be considered private acts rendered, upon delegation, by a sports association, so that the proper remedy against these decisions would not be the FSC as a direct avenue as per the Swiss arbitration law (art. 191 PILA), but local Swiss courts for SGBs in Switzerland (Art. 75 of the Swiss Civil Code), or foreign courts for SGBs abroad. This would significantly alter the nature of dispute resolution in international sports, would empty CAS arbitration from its very purpose, and most likely mean the end of CAS and a considerable upheaval in the management of these disputes worldwide. Regardless of the criticism raised against the structure and functioning of CAS, a satisfactory alternative solution has yet to be found.
How is Switzerland expected to react to this ruling? The core of the GC’s reasoning boils down to the notion that the judicial review of the CAS award by the FSC needed to be ‘particularly rigorous’, and that this criterion had not been met in the present case.
In its decision, the ECtHR differentiates the required standard of review between solely pecuniary matters, on the one hand, and cases where fundamental rights are at stake and where there is a structural imbalance of power between the sportsperson and the sports entity, on the other (paras. 209-210), its primary concern being the forced character of the arbitration (paras. 211-216). The ruling thus identifies as problematic the fact that the PILA does not differentiate between commercial and sports arbitration in its exhaustive list of grounds for review (para. 237). It appears, however, difficult to introduce a clear-cut, binary legislative criterion to distinguish situations – whether sports-related or not – where arbitration among private parties is to be regarded as insufficiently consensual and thus require a ‘particularly rigorous examination’. A special regime will thus most likely need to be introduced by way of jurisprudence from the FSC.
Assuming the FSC were to create a category of arbitration cases in which it would conduct a ‘particularly rigorous examination’ in order to comply with the requirements established in Semenya to counterbalance the lack of consensual basis (similar to what it did in the Cañas matter with respect to the inadmissibility of a waiver to challenge CAS awards in disciplinary matters), the next hurdle would be to determine what exactly such an standard of examination would require. The 2023 Chamber judgment, though similar in spirit, had at least pointed some specific notions of established legal significance (paras. 186-190, e.g. proportionality), which has not been replicated by the GC as it does not lay out what a ‘particularly rigorous examination’ would entail. Nor does it provide any grid of assessment that could assist the FSC in doing so, whether in general or in this specific case. The ECtHR’s previous case law does not give any further guidance for State parties as to the expected content of this ‘particularly rigorous examination’ nor as to what actual steps need to be taken by national courts to be in compliance with Article 6(1) ECHR when reviewing arbitral awards in sports arbitration.
The FSC has systematically considered itself to be bound by the exhaustive list of grounds under Art. 190(2) PILA and extending the list extra legem could be problematic from a viewpoint of separation of power between the judiciary and the legislative branch. Could the FSC open a new, autonomous, ground for challenging arbitral awards of the CAS specifically, based on the ECtHR ruling? Although so far, the FSC has considered that it does not have the authority to do so as it would require legislative action, in practice, there would be no way of imposing any sanction on the FSC for overstepping its attributions. It could also (and perhaps more easily) extend the scope of public policy in sports arbitration, something that the FSC has refused to do so far. Only future challenges before the ECtHR could tell us whether a broader notion of Swiss public policy, specific to sports arbitration that would include the ECHR safeguards, would be sufficient to qualify as a rigorous examination in the eyes of the Court. The GC does not expressly mandate that the FSC conduct a full review of CAS awards, however it does not delimit “particularly rigorous examination” of claims related to ECHR safeguards either (para. 233).
The question remains of how to implement these safeguards horizontally among private parties, especially when – as in the Semenya matter – the SGB is not under the jurisdiction of Switzerland. A more straightforward option would be through the personality rights of the athlete (Art. 27 and 28 of the Swiss Civil Code), which are the equivalent legal tools to protect individuals in Switzerland against actions of other private parties and the violation of which has led to the annulment, by the FSC, of a CAS award for violating Swiss public policy (see, Matuzalem v. FIFA). One may wonder, though, whether this type of assessment will suffice for the ECtHR. In the Semenya ruling, the FSC had indeed conducted the personality rights assessment and ruled that any infringement on the Athlete’s personality rights was justified given that the DSD Regulations had been found to be a proportionate measure. The GC, however, considered that the FSC had rejected the Athlete’s comparison with the above-mentioned Matuzalem case ‘without thorough examination’(para. 235). The FSC did not ignore the comparison between the two cases, and it is unclear what the FSC would have needed to do to fulfil the requirement of ‘thorough examination’.
Given the uncertainties looming over the nature and extent of the review expected from the FSC, one can speculate whether, when dealing with CAS awards in the future, the FSC judges will be more inclined to decide in favour of the interests of athletes that contest SGBs regulations, so as to prevent other applications against Switzerland being brought before the ECtHR. However, as long as the Swiss legal framework applicable to international arbitration remains unchanged, significant obstacles for in-depth review of CAS awards by the FSC will remain. Most likely, the FSC will try to demonstrate in its future decisions that it has conducted a rigorous examination of the issues at stake, without exceeding the limits of the review inscribed in Article 190 PILA. Further guidance from the ECtHR on the content of the ‘particularly rigorous analysis’ standard would strengthen legal certainty and be most welcome.
Although the ECtHR’s ruling was welcomed by Semenya, one may wonder about its real, large-scale impact on the judicial power of review of the guarantee of athletes’ rights by SGBs. Although the current system is being challenged from all sides, no satisfactory solution has been proposed to date and every actor seems reluctant to take the matter into their hands. Every raised criticism seems to make possible solutions more unclear, and clarification will most likely only be provided through new legal challenges, especially now that Semenya has announced that she will not ask the SFC to reopen her case.
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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