The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
Features
Caster Semenya, the IAAF, sport and human rights
Dear Lord Coe,
I refer to last week’s proceedings in the Court of Arbitration for Sport (“CAS”) involving Caster Semenya and the IAAF’s eligibility regulations for the female classification (athletes withdifferences of sex development), which the IAAF proposes to take effect on 26 March 2019 (“the proposed Regulations”). The purpose of this letter is to formally request that the IAAFimmediately withdraws the proposed Regulations and instead takes the steps necessary to embed human rights in the governance, business and sport of athletics.
As you are aware, the proposed Regulations will have an acute impact on Ms. Semenya and other athletes who will be affected by them, including on their capacity and right to practice sport without undergoing severe medical intervention. The proposed Regulations are therefore likely to violate the internationally recognized human rights of relevantly affected athletes in several ways. According to two Special Rapporteurs of the United Nations Human Rights Special Procedures, these include “the right to equality and non-discrimination, the right to the highest attainable standard of physical and mental health, the right to physical and bodily integrity and the right to freedom from torture, and other cruel, inhuman or degrading treatment and harmful practices.”
This outcome would place the IAAF in breach of its duty and corporate responsibility to respect human rights in accordance with international principles and standards including the United Nations Guiding Principles on Business and Human Rights (“UNGPs”). The views of the Special Rapporteurs are shared by many in the field of sport and human rights, including the World Players Association, which through over 100 player and athlete associations represents some 85,000 professional players and athletes in more than 60 countries.
While track and field athletes are presently not represented within our organization, the internationally recognized human rights at stake in Ms. Semenya’s matter are a vital concern to our membership and the sports in which they participate and work. The approval of the proposed Regulations would also set a harmful cultural example, and risk encouraging widespread discriminatory behaviour and stigmatization at all levels of sport.
In recent years, the international community has made profound progress towards embedding the internationally recognized human rights of all involved with or affected by sport – including athletes – in accordance with the UNGPs. In June 2018, the independent Centre for Sport andHuman Rights (“CSHR”) was established to advance this practice, which is also essential to legitimizing the governance, activities and business of global sport. To this end, the Advisory Council of the CSHR includes governments, sponsors and broadcasters of sport, NGOs, trade unions, player associations, intergovernmental agencies (such as the United Nations Office of the High Commissioner for Human Rights, UNESCO, the International Labour Organization and the OECD), and major sports bodies including FIFA, UEFA, the International Paralympic Committee, the Special Olympics and the Commonwealth Games Federation (“CGF”). The International Olympic Committee (“IOC”) has been an active observer and is also taking stepsto embed human rights in its activities.
Unfortunately, the IAAF has not been a part of this journey. It now finds itself at the intersection of sport and human rights, but without the requisite governance framework and capacity to deal with human rights matters. It is an intersection that cannot be crossed by the IAAF by reference to science and the CAS, especially given that the science relied upon by the IAAF is highly disputed at best and the CAS lacks the requisite procedural and substantive safeguards in relation to human rights.
The only way the IAAF can successfully cross the intersection of sport and human rights is to withdraw the proposed Regulations and take the necessary steps to embed internationally recognized human rights within the sport of athletics in accordance with the UNGPs. This requires the IAAF to:
- make a statutory commitment to respect internationally recognized human rights and to promote the protection of those rights;
- make and adopt a clear, coherent and binding human rights policy;
- undertake human rights due diligence to identify and evaluate human rights risks and assess adverse human rights impacts;
- develop the means to prevent, mitigate and address human rights risk;
- establish a grievance mechanism to ensure that those who are the victims of human rights abuse can access an effective remedy; and
- engage in a structured and ongoing manner with people affected by its activities and their legitimate representatives in relation to the IAAFs human rights responsibilities. That engagement should include open, transparent and researched communications in an endeavour to prevent and remediate the abuse of human rights and uphold the commitments and responsibilities of the IAAF to human rights.
The failure to take these steps means that the proposed Regulations have been developed and promulgated in the absence of a satisfactory human rights framework, making it impossible for Ms. Semenya’s matter to be adequately dealt with by the CAS. Furthermore, the CAS itself is not well placed to deal with human rights matters. Professor John Ruggie of the Harvard Kennedy School, the architect of the UNGPs, said in his April 2016 report to FIFA that “[i]f an arbitration system is going to deal effectively with human rights-related complaints, it needs certain procedural and substantive protections to be able to deliver on that promise.” His recommendations included reviewing the CAS with player representatives and other users of the system to ensure that the dispute resolution system “does not lead in practice to a lack of access to effective remedy for human rights harms.”
The approach of the IAAF in advancing the proposed Regulations in the absence of the requisite human rights framework is also in stark contrast with recent measures taken by key stakeholders in global sport to uphold human rights. These include:
(a) the UNESCO Revised International Charter of Physical Education, Physical Activity and Sport (2015), which expressly provides that every human being has a fundamental right to sport and refers to the application of international labour conventions and basic human rights to athletes;
(b) the Kazan Action Plan (2017), which states that “the fundamental human rights of everyone affected by or involved in the delivery of physical education, physical activity and sport must be protected, respected and fulfilled in accordance with the [UNGPs]”;
(c) the Yogyakarta Principles Plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles, revised 10 November 2017;
(d) the United Nations General Assembly Resolution A/73/I 36, adopted 3 December 2018, which expressly refers to the revised UNESCO Charter, the Kazan Action Plan and, accordingly, the centrality of the framework of the UNGPs;
(e) the Sporting Chance Principles of the CSHR, adopted in June 2018; and
(f) regulatory, policy and contractual commitments made by international sports governing bodies since 2016, including by the IOC in its Host City Contract and, more broadly, by FIFA, UEFA and the CGF.
It is therefore clear that the proposed Regulations will lack legitimacy even if they are upheld by the CAS. Moreover, should the CAS uphold the proposed Regulations, it will be denying Ms. Semenya access to an effective remedy for a human rights harm in the very manner alerted to by Professor Ruggie.
It is also clear that matter will not end should the CAS make a decision that favours the IAAF, for the IAAF will remain accountable for meeting its human rights responsibilities in other fora. I would welcome the opportunity to discuss with you how those responsibilities can be met in a manner that is both athlete centred and sport focused.
I am confident that all stakeholders in the sport and human rights community are committed to working with the IAAF to assist it in meeting its human rights responsibilities and in a way that will greatly enhance the sport of athletics and the governance of the IAAF. The starting point for that to occur is for the IAAF to withdraw the proposed Regulations.
Yours sincerely,
Brendan Schwab
Executive Director
cc. Dr. Thomas Bach, President, International Olympic Committee
Mr. Andrew Parsons, President, International Paralympic Committee Mr. Gianni Infantino, President, FIFA
Ms. Louise Martin, President, Commonwealth Games Federation Ms. Mary Robinson, Chair, Centre for Sport and Human Rights
• This letter was sent by the World Players Association (WPA) to Sebastian Coe, President of the International Association of Athletics Federations (IAAF) on 27 February 2019. A copy was sent to The Sports Integrity Initiative on 1 May 2019.
