European Court of Human Rights delivers final ruling in the case of Semenya v. Switzerland

On 10 July 2025, the European Court of Human Rights (ECtHR) delivered its final ruling in the case of Semenya v. Switzerland¹ . The ECtHR, sitting as Grand Chamber, found that Switzerland violated its procedural obligations under Article 6 of the European Convention on Human Rights (ECHR) because the Swiss Federal Tribunal failed to conduct a "particularly rigorous" examination of Semenya's challenge of the award of the Court of Arbitration for Sport (CAS). The ECtHR considered that such a rigorous review was required given the specific and compulsory nature of CAS arbitration and the fact that fundamental civil rights were at stake. However, the ECtHR considered that Semenya's other claims of violation of her right to private life and to an effective remedy under Article 8 (in combination with 14) and Article 13 related to the requirement of Monaco-based World Athletics to take testosterone reducing medication lacked a direct connection with Switzerland. It accordingly dismissed those claims.

Key Takeaways

• The ECtHR emphasized the compulsory nature and the structural imbalance of sports arbitration before CAS which requires greater care in terms of safeguarding the rights of individuals seeking a review of such awards.
• Review by the Swiss Federal Tribunal of CAS arbitral awards involving "civil rights" within the meaning of Article 6 ECHR must not be limited to a narrow public policy review under Article 190(2)(e) of the Swiss Private International Law Act (PILA) but requires a "particularly rigorous examination" by the Swiss Federal Tribunal.

The Background: The Case of Caster Semenya

Caster Semenya is a South African track and field athlete specializing in middle-distance running events. She won the gold medal in the women's 800 m race at the Olympic Games in London in 2012 and in Rio de Janeiro in 2016. She is also a three-time world champion over that distance (Berlin 2009, Daegu 2011, London 2017).

The present case concerned statutory requirements adopted by the International Association of Athletics Federations (IAAF, now World Athletics) requiring Semenya to decrease her testosterone level below a certain threshold to remain eligible for competition in the female category. These regulations initially determined a blood testosterone threshold of 10 nmol/L. According to the World Athletics 2018 "Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)" (the "DSD Regulations"), athletes with a difference in sex development ("DSD athletes"), such as Semenya, had to reduce their blood testosterone level to below 5 nmol/L to remain eligible for competition. This concerned the 400 m, 400 m hurdles, 800 m, 1,500 m, and 1 mile female running events.

Semenya challenged these DSD regulations before CAS. In April 2019, CAS rejected her complaint considering that the DSD Regulations were (i) discriminatory but ultimately (ii) necessary, reasonable and proportionate to achieve the legitimate aim of protecting female athletics and the "protected class" of female athletes in the events concerned.²

In August 2020, the Swiss Federal Tribunal dismissed Semenya's setting aside motion concerning the CAS award and ruled that the impugned award was not incompatible with Swiss substantive public policy under section 190(2)(e) PILA.³

Semenya then seized the ECtHR and argued that the decision by the Swiss Federal Tribunal violated her rights under the ECHR. By judgment of 11 July 2023, the ECtHR found that there had been a violation of the prohibition of discrimination (Article 14 ECHR) taken together with the right to respect for private life (Article 8 ECHR) as well as a violation of the right to an effective remedy (Article 13 ECHR).⁴  The Court exercised judicial economy regarding the right to a fair trial under Article 6 § 1 ECHR, considering that it had "found a violation of Article 13 of the Convention in relation to Article 14 in conjunction with Article 8, owing in particular to the Federal Supreme Court's very limited power of review", such that the complaint under Article 6 § 1 ECHR "does not give rise to any separate issue."⁵

On 9 October 2023, Switzerland appealed the Chamber's ruling to the Grand Chamber of the ECtHR.

The ECtHR's Decision

Scope of the case and independence of CAS

The ECtHR, sitting as Grand Chamber, first determined the scope of the case and recalled that Semenya's complaint under Articles 6 and 13 of the ECHR concerned Switzerland's failure to guarantee an effective review of the CAS Award. It thus considered that it was not called upon to examine whether CAS itself is a sufficiently independent and impartial tribunal established by law within the meaning of Article 6 § 1 of the ECHR, and it did not do so.

In her partly concurring opinion, Judge Simackova disagreed with this approach. Since Semenya argued that CAS arbitration was imposed on her by World Athletics, Judge Simackova held that the Court should have conducted a more thorough examination of whether CAS qualified as an independent and impartial tribunal established by law under Article 6 § 1 ECHR. Noting that in Mutu and Pechstein⁶, the ECtHR assessed substantively only whether CAS was a "tribunal", in her opinion the question of whether CAS was also "independent and impartial" and "established by law" should have been examined and answered in the negative in the present case. Judge Simackova opined that CAS was not established in accordance with the will of the Swiss or any other legislature but came into existence through the "Agreement concerning the constitution of the International Council of Arbitration for Sport", an agreement signed only by the Olympic Games governing bodies, including the International Olympic Committee (IOC). In other words, according to Judge Simackova, CAS was established by private entities, which do not possess legislative powers conferred upon them by a democratic process.

Second, Judge Simackova questioned the structural independence of CAS. She recalled that its statute and the appointment of arbitrators are managed by the International Council of Arbitration for Sport (ICAS), which is composed of 20 members adopted by international sports federations, the national Olympic Committees and the IOC. Judge Simackova concluded that "[t]he sports arbitration system – while affording certain safeguards – thus provides an advantage to one of the parties before the CAS in disputes between a sports body and an athlete." On that basis, she argued that CAS is not an "independent and impartial tribunal established by law" within the meaning of Article 6 § 1 ECHR.

Violation of Article 6 § 1 ECHR

Article 6 § 1 ECHR concerns the right to a fair trial and, in particular, the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Semenya's complaint was that she was refused this fair and public hearing before the Swiss Federal Tribunal given its minimal and deferential review of the CAS award that had rejected her complaint. Semenya's main argument was that in those limited circumstances where an appeal before the Swiss Federal Tribunal against a CAS award concerned substantive provisions of the ECHR ab initio, the ECHR required that the Swiss Federal Tribunal review both the facts and the law of the CAS' findings.⁷  While Semenya did not dispute the lawfulness of Article 190(2)(e) PILA as such, which provides for limited public policy review of arbitral awards by the Swiss Federal Tribunal, she claimed that such a limited review was not sufficient in the present circumstances under Article 6 ECHR.

As a preliminary matter of admissibility, the ECtHR confirmed that Semenya fell within Switzerland's jurisdiction and that, accordingly, Switzerland was in principle obliged to respect the guarantees under Article 6 ECHR vis-à-vis Semenya. Article 1 ECHR determines that Member States must secure to "everyone within their jurisdiction" the rights and freedoms contained in the ECHR. In respect of Article 6 § 1, the ECtHR determined that Semenya's appeal of the CAS award to the Swiss Federal Tribunal "created a jurisdictional link with Switzerland, entailing an obligation for that State, under Article 1 of the Convention, to ensure respect for the rights protected by Article 6 of the Convention".⁸

On the merits, Semenya primarily argued that the limited public policy review by the Swiss Federal Tribunal based on section 190(2)(e) PILA failed to satisfy the requirements of a fair hearing under Article 6 § 1 ECHR. Section 190(2) PILA determines that an arbitration award can only be set aside on narrow grounds, including the improper composition of the tribunal, non-equal treatment of the parties or, notably, where the award is incompatible with Swiss public policy. Accordingly, when reviewing an arbitral award, including CAS awards, the Swiss Federal Tribunal does not engage in a full review, but determines whether the arbitral award must be annulled for one of the specific causes listed in section 190(2) PILA. Semenya did not challenge section 190(2)(e) PILA as such. However, she argued that the limited public policy review by the Swiss Federal Tribunal in the present case did not correspond to a "fair hearing" under Article 6 § 1 ECHR.

The ECtHR first recalled that in the case of voluntary arbitration based on the free will of the parties, "no real issue arises under Article 6"⁹. It further held that the Court's case law does not rule out the possibility that arbitration may be imposed with the result that the parties have no option but to refer their dispute to an arbitral tribunal. Accordingly, the "fact that arbitration is imposed by a private entity rather than by law, as is the case with regard to international disputes relating to sport, where recourse to arbitration and referral to the CAS are generally imposed on sportspersons by the sport governing body which governs their sporting discipline, is not sufficient to give rise to a violation of Article 6 § 1."¹⁰ The ECtHR further acknowledged that the existence of a specialized court, i.e., CAS, in sports was desirable to swiftly and inexpensively settle sports-specific disputes with the required expertise.

However, the ECtHR considered that the compulsory nature of sports arbitration has certain consequences for the review of CAS awards. It found that, given the mandatory nature of CAS arbitration and the "structural imbalance" between athletes and governing bodies, Article 6 § 1 ECHR requires a "particularly rigorous examination"¹¹ of a CAS award by the reviewing court, i.e., the Swiss Federal Tribunal. However, ECtHR left open the question of what this "particularly rigorous" review would entail and on what basis a reviewing court could distinguish between different types of arbitration. The only clarification provided by the ECtHR arguably already stems from the text of Article 6 § 1 ECHR itself – i.e., a particularly rigorous examination is required only where "civil rights", as they are protected by Article 6 § 1, are at issue (which excludes, e.g., mere pecuniary claims).

Applying this novel threshold of "particularly rigorous examination" to the present case, the ECtHR noted that CAS had engaged in an in-depth review of certain aspects of Semenya's case, but had left ambiguous certain other aspects as well as some of its conclusions. For example, the ECtHR found that CAS had left open the question of potential difficulties faced by DSD athletes to maintain their testosterone levels below the maximum permitted, which it considered to be a question "at the heart of the applicant's […] argument [and] decisive for the outcome of the dispute."¹² Moreover, the ECtHR observed that the Swiss Federal Tribunal in its public policy review merely examined whether the CAS award undermines "essential and broadly recognized values"¹³ and thus conducted a very limited public policy review. The ECtHR thus found as follows:

"It would therefore appear that although the CAS expressed very serious concerns [concerning the possibility for DSD athletes to comply with the testosterone thresholds], thereby rendering ambiguous its reasoning in relation to proportionality, the Federal Supreme Court conducted only a limited review of this aspect of the award."¹⁴

Furthermore, the ECtHR faulted the Federal Tribunal for not scrutinizing more rigorously several other questions left open by CAS, including whether the selection of restricted events (i.e., events subject to the DSD Regulations) was arbitrary and framed to target specifically the case of Semenya, whether the DSD Regulations might result in the medical status of female athletes with DSD being made public, or whether the DSD Regulations were compatible with fundamental human rights.

In sum therefore, the ECtHR, "not least owning to the [Swiss Federal Tribunal's] very restrictive interpretation of the notion of public policy"¹⁵, found that the review of the CAS award did not satisfy the requirements of a fair hearing under Article 6 § 1 ECHR.

In their partly dissenting joint opinion, Judges Eicke and Kucsko-Stadlmayer disagreed with this approach and argued that under Article 6 ECHR, the scope of review is concerned exclusively with procedural rights. In their view, the limited review of the CAS award under Article 190(2)(e) PILA constituted a "legitimate restriction" to the right of access to a court. Accordingly, the joint dissenting opinion held that "it is an inevitable consequence that the standards laid down by section 190(2)(e), as interpreted by the [Swiss Federal Tribunal], are also indicative of the extent (and the limits) of the court's powers of review of arbitral awards"¹⁶ , such that the ECtHR's review should have been limited to determine whether the Swiss Federal Tribunal conducted a proper analysis under the public policy notion, rather than introducing a new standard requiring a "particularly rigorous examination".

Violation of Articles 8 and 13

The ECtHR dismissed Semenya's claims under Article 8 (right to respect for private life), taken alone or in conjunction with Article 14 (prohibition of discrimination), and of Article 13 ECHR (right to an effective remedy) and held that with respect to these rights, Switzerland did not have jurisdiction over Semenya under Article 1 ECHR. According to the ECtHR, "the fact that the Federal Supreme Court examined the applicant's civil-law appeal seeking to have the CAS award […] set aside does not suffice to establish Switzerland's jurisdiction in respect of the applicant in the context of her complaints"¹⁷. The ECtHR observed that Semenya was a South African national who resides in South Africa. Moreover, the DSD Regulations were adopted by World Athletics, which is a Monegasque private law association. The ECtHR recalled that extraterritorial jurisdiction required a member State's "control over the person himself or herself rather than the person's interests as such."¹⁸ The ECtHR found that this was not the case for Semenya and Switzerland and accordingly dismissed these claims.

In so doing, the Grand Chamber thus rejected the approach of the 2023 decision by the Chamber, which had initially found a violation of Article 14, together with Article 8, and Article 13 ECHR. With respect to the question of admissibility under Article 1 ECHR, the Chamber had determined that once a person brings a civil action in the courts or tribunals of a State, there indisputably exists a "jurisdictional link" between that person and the State, and that this is the case even if there is an extraterritorial aspect to the events which gave rise to the action.¹⁹

By overruling this Chamber finding and rejecting these claims as inadmissible, the Grand Chamber of the ECtHR effectively avoided addressing the substantive question of whether DSD and other sexual development and gender related regulations are unjustifiably discriminatory or rather necessary to safeguard the female sports category.

In their partly dissenting joint opinion, Judges Bosnjak, Zünd, Simackova and Derencinovic criticized the majority's ruling as contradictory and held that it is "inconceivable that domestic courts, ruling within the territory of Europe, should disregard international fundamental human rights obligations in the area of protection of bodily integrity, equality and human dignity, even where highly specialized proceedings […] are in issue.²⁰ According to the joint dissenting opinion, the fact that the Swiss Federal Tribunal examined Semenya's appeal against the CAS award created a jurisdictional link with Switzerland, thus requiring the ECtHR to guarantee the protection of the rights included in Article 8 ECHR. Otherwise, according to the dissenting opinion, private law actors will be able to create their own private-law system of rules not subject to substantive review by a state court, which risks that an entire category of individuals is deprived of access to effective review by the ECtHR and fundamental Conventional rights.

Analysis and Outlook

The ECtHR appears to have introduced a novel element in the analysis to be undertaken by the Swiss Federal Tribunal in the review of CAS awards, requiring a "particularly rigorous review" at least in cases where fundamental civil rights are at issue. The ECtHR's underlying reasoning is that CAS arbitration is imposed by a private sports governing entity rather than agreed voluntarily between the parties. The ECtHR emphasized that the basis of its approach lies in the fact that there exists a "structural imbalance" between athletes and sport governing bodies.

Its call for a more in-depth review of CAS awards compared with voluntary arbitration is problematic, as this compulsory/voluntary distinction does not exist under the New York Convention and raises questions about the extent to which CAS awards are to be considered genuine arbitral awards. This rather negative assessment of CAS is not too dissimilar from what the Advocate General of the CJEU said in the Seraing case about CAS.²¹ A decision by the CJEU in that case is expected very soon, on 1 August 2025.

In any case, applicants in future setting aside motions of CAS awards before the Swiss Federal Tribunal under section 190(2) PILA will likely invoke the standard of a "particularly rigorous examination". It is regrettable that the ECtHR did not provide further guidance on the elements which such an examination must entail to comply with this threshold. Nor is it clear under which circumstances such a particularly rigorous examination would be required, other than that an individual's civil rights must be involved. For example, it remains unclear whether this would apply, for example, to the situation of American gymnast Jordan Chiles who lost the bronze medal at the Paris Olympics, following a CAS ad hoc ruling²² in respect of which concerns were later raised over potential conflicts of interest of one of the arbitrators, the right to be heard and undue formalism by the CAS in the decision. A challenge to that CAS award is pending before the Swiss Federal Tribunal. While the matter does not concern discrimination or right to private life, it does raise claims of fundamental due process and of a fair trial, as will very often be the case in challenges to CAS awards.²³ It will be interesting to see if the Swiss Federal tribunal will engage in a "particularly rigorous examination" of that CAS decision.

_{1 ECtHR, Case of Semenya v. Switzerland, Grand Chamber, Application no. 10934/21, Judgment, 10 July 2025, available here (Semenya v. Switzerland, Grand Chamber, Judgment).
2 Court of Arbitration for Sport, Arbitrations CAS 2018/O/5794, Mokgadi Caster Semenya v. International Association of Athletics Federations (IAAF) and CAS 2018/O/5798, Athletics South Africa v. IAAF, award of 30 April 2019, available here.
3 Swiss Federal Tribunal, judgment, 25 August 2020, 4A_248/2019, 4A_398/2019, available here.
4 ECtHR, Case of Semenya v. Switzerland, Third Section, Judgment, 11 July 2023, Application no. 10934/21, available here.
5 ECtHR, Case of Semenya v. Switzerland, Third Section, Judgment, 11 July 2023, Application no. 10934/21, available here, at para. 244.
6 ECtHR, Case of Mutu and Pechstein v. Switzerland, Third Section, Judgment, 2 October 2018, Applications nos. 40575/10 and 67474/10, available here.
7 See the summary of the applicant's claim in Semenya v. Switzerland, Grand Chamber, Judgment, para. 167.
8 Semenya v. Switzerland, Grand Chamber, Judgment, para. 133.
9 Semenya v. Switzerland, Grand Chamber, Judgment, para. 197.
10 Semenya v. Switzerland, Grand Chamber, Judgment, para. 199.
11 Semenya v. Switzerland, Grand Chamber, Judgment, para. 209.
12 Semenya v. Switzerland, Grand Chamber, Judgment, para. 224.
13 Semenya v. Switzerland, Grand Chamber, Judgment, para. 226.
14 Semenya v. Switzerland, Grand Chamber, Judgment, para. 229.
15 Semenya v. Switzerland, Grand Chamber, Judgment, para. 238.
16 Semenya v. Switzerland, Grand Chamber, Judgment, Partly Dissenting Joint Opinion of Judges Eicke and Kucsko-Stadlmayer, para. 14.
17 Semenya v. Switzerland, Grand Chamber, Judgment, para. 145.
18 Semenya v. Switzerland, Grand Chamber, Judgment, para. 149.
19 Semenya v. Switzerland, Chamber, Judgment, para. 104. Another relevant factor for the Chamber was that according to it, Swiss substantive public policy encompassed, among others, the prohibition of discrimination and respect for human dignity and, to a certain degree, the right to freely practice a profession as a limb of personality rights – i.e., guarantees reflected in Articles 14 (together with Article 8) and Article 13 ECHR. See, Semenya v. Switzerland, Chamber, Judgment, para. 108. The Chamber thus declared these claims admissible and found, under Articles 14 (together with Article 8) and Article 13 that Semenya had not been awarded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively. See, Semenya v. Switzerland, Chamber, Judgment, para. 201 and paras. 239-240
20 Semenya v. Switzerland, Grand Chamber, Judgment, Partly Dissenting Joint Opinion of Judges Bosnjak, Zünd, Simackova and Derencinoiv, para. 1.
21 See Opinion of Advocate General Ćapeta delivered on 16 January 2025, Case C‑600/23, Royal Football Club Seraing v Fédération Internationale de Football Association (FIFA), Union Royale Belge des Sociétés de Football Association ASBL (URBSFA), Union européenne des Sociétés de Football Association (UEFA) ("Opinion"), available here. See also Wauters/de Lotbinière McDougall/Hertel, C-600/23: ECJ Advocate General proposes full review of CAS awards involving EU law, 24 January 2025, available here.
22 See, CAS Award OG 15-16
23 See, e.g., the cases 4A_318/2020 of 22 December 2020; 4A_564/2020 of 7 June 2021; 4A_506/2007 of 20 March 2008; 4P.172/2006 of 22 March 2007; 4A_400/2008 of 9 February 2009.}

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