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The lengthy stand-off between Olympic champion Caster Semenya and track and field’s governing body over issues of gender, hormones and athletic performance has reached a pivotal phase as a key tribunal begins a planned five-day hearing in a case that could have huge ramifications for sport.

Both sides acknowledged the ruling in the case, which is not expected until late March, could have huge implications, notably over where to draw the line between the genders and how to ensure fairness in top-tier competition.

Semenya’s lawyers issued a statement during the 10-hour session criticising the IAAF’s release of a list of names of five experts that they planned to put forward to make their case.

Her legal team said that manoeuvre violated the spirit of confidentiality over the proceedings “in an effort to influence public opinion”.

Her team of four lawyers said it had received the three-judge panel’s OK to release the names of its own experts on Tuesday.

A woman wearing a jacket enters Court of Arbitration for Sport building in Lausanne, Switzerland. PHOTO: Semenya is challenging proposed rules on athletes with hyperandrogenism. (AP:/Keystone: Laurent Gillieron) Insisting on the need for fairness, the IAAF defended “eligibility standards that ensure that athletes who identify as female but have testes, and testosterone levels in the male range, at least drop their testosterone levels into the female range in order to compete at the elite level in the female classification”.

The IAAF has proposed eligibility rules for athletes with hyperandrogenism, a medical condition in which women may have excessive levels of male hormones such as testosterone. Semenya wants to overturn those rules.

The scheduled five-day appeal case is among the longest ever heard by the sports court.

Neither of the delegations spoke on the way out of Monday’s proceedings.

“The core value for the IAAF is the empowerment of girls and women through athletics,” IAAF president Sebastian Coe said as the day began.

“The regulations that we are introducing are there to protect the sanctity of fair and open competition.”

A colleague then pulled Coe away from reporters and said he wouldn’t say more.

The IAAF wants to require women with naturally elevated testosterone to lower their levels by medication before being allowed to compete in world-class races from 400 metres to one mile.

Under the proposed eligibility rules Semenya, a double Olympic and triple world champion over 800m who won the 800m and 1,500m titles at last year’s Commonwealth Games on the Gold Coast, would have to take daily medication or shift distances to run for South Africa over 5,000m.

Days before the hearing, the South African minister for sport and recreation, Tokozile Xasa, released a statement critical of the proposed regulations.

“What’s at stake here is far more than the right to participate in a sport,” Xasa said.

“Women’s bodies, their wellbeing, their ability to earn a livelihood, their very identity, their privacy and sense of safety and belonging in this world, are being questioned.

“This is a gross violation of internationally accepted standards of human rights law.”

Should high testosterone levels disqualify elite female athletes from competing among women?

That will be the question at hand in a Swiss court this month when South African sprinter Caster Semenya faces off against the world governing body for track and field over controversial new rules requiring women with high levels to medically lower them in order to compete.

The rules, established in 2018, hinge on a previous study concluding that elevated testosterone gives women a significant advantage in at least five events.

But a new paper led by CU Boulder suggests that research is “fatally flawed.” The authors, who will appear as expert witnesses in the case, are now calling for a retraction of the original research and asking the International Association of Athletics Federations to reconsider the rule change.

“In almost any other setting of science, errors of this magnitude would lead to a paper being retracted,” said lead author Roger Pielke Jr., director of the Center for Sports Governance at CU Boulder. “And it certainly would not be the basis for broad regulations that have a profound impact on people’s lives.”

TESTOSTERONE AND COMPETITIVE ADVANTAGE
In April 2018, the IAAF announced new regulations requiring certain female athletes with naturally high testosterone levels to take testosterone-lowering hormones if they want to continue to compete in the women’s category for the 400m, the 400m hurdles, the 800m, the 1500m and the one mile.

The rule, which applies to IAAF-sanctioned international competitions, requires that they maintain serum testosterone levels below 5 nanomoles per liter (nmol/L) for at least six months prior to competition. Most females have testosterone levels ranging from 1.12 to 1.79 nmol/L while the normal adult male range is 7.7 – 29.4 nmol/L. About 7 in every 1,000 elite female athletes have high testosterone levels, according to IAAF.

The association had attempted to put forth similar regulations in 2011, but that rule was thrown out when the Swiss-based Court of Arbitration for Sport (CAS) – the highest court for international sport – concluded in 2015 that there was a lack of evidence linking high testosterone to “a real competitive advantage” in women.

“While a 10% difference in athletic performance certainly justifies having separate male and female categories, a 1% difference may not justify a separation between athletes in the female category, given the many other relevant variables that also legitimately affect athletic performance,” the CAS panel concluded, calling for more research.

In 2017, the IAAF came back with that research, publishing a paper in the British Journal of Sports Medicine (BJSM) which claimed that elite women runners with the highest testosterone levels performed as much as 3 percent better than those with the lowest levels.

Pielke and co-authors Erik Boye, a professor emeritus of molecular biology at the University of Oslo, and Ross Tucker, a University of Cape Town exercise physiologist, challenge those results.

“We found problematic data throughout the study and consequently, the conclusions can’t be seen as reliable,” Pielke said.

FATAL FLAWS IN DATA COLLECTION
When the three tried to replicate the original findings using data from the study’s authors and publicly available results from four of the races included, they uncovered “significant anomalies and errors.”

For instance, they found performance times that were erroneously duplicated and “phantom times” that did not exist in official IAAF competition results. In addition, some athletes disqualified for doping were included in the study dataset – a fact that could confound the results.

In all, from 17 to 32 percent of the data used in the study was found to be in error.

“The IAAF should retract their paper containing faulty data, and the new rule based on this paper should be removed,” said Boye.

The researchers also note that IAAF researchers themselves conducted the BJSM study and have declined to share the majority of their research data.

“We would not find it appropriate for cigarette companies to provide the scientific bases for the regulation of smoking, or oil companies to provide the scientific bases for regulation of fossil fuels. Sport regulation should be held to the same high standards,” they write.

The IAAF researchers did correct what they characterized as “data capture errors” and re-ran their analysis in a subsequent letter to the journal. But flaws remain, Pielke said.

The IAAF “remains very confident of the legal, scientific, and ethical bases for the regulations,” according to a statement on its website.

SCIENTIFIC INTEGRITY AT PLAY
The research will be at issue in February when Pielke and Tucker serve as expert witnesses at the Court of Arbitration for Sport, where Semenya and Athletics South Africa have brought a case against the IAAF.

Under the new regulations, those who decline to medically reduce their testosterone levels must relinquish their right to compete as females.

Semenya, 28, a two-time Olympic champion in the 800 meters, has said the rules stigmatize women who do not conform to perceived notions of femininity and called them “discriminatory, irrational and unjustifiable.”

Originally set to take effect in November, 2018 implementation of the rules has been postponed until after the outcome of the case.

“Fundamentally, the issues that we raise with our paper are about the integrity of science in regulation,” said Pielke.

“Any agency, in sport or beyond, should be expected to produce science that can withstand scrutiny and which actually supports the justification for proposed regulations. That simply did not happen here.”

International sports federations (ISFs) and national sports governing bodies (SGBs) have traditionally argued that their decisions do not fall within the purview of public law. To help their case, they often have intricate rules regulating the sport that prescribe, among other things, that participants must resolve their disputes before internal tribunals rather than the national courts.1 Despite these efforts, a large number of sports disputes still find their way into the national courts.

This article outlines the approach of the South African courts when dealing with sports disciplinary disputes, with a particular focus on the role of public law judicial review. South African courts have traditionally treated disciplinary disputes as private matters not falling within the purview of public law and have been reluctant to intervene despite their inherent jurisdiction and supervisory powers. However, this position changed significantly with the introduction of the Promotion of Administrative Justice Act, 2000, and courts are now increasingly finding that decisions of SGBs are “administrative action” (explained below) and reviewable under public laws.

The author will explain this progression and argue that it is welcomed as it provides important checks and balances against potential abuses of powers by SGBs.

THE INHERENT JURISDICTION OF THE DOMESTIC COURTS
In terms of the common law and the Constitution of the Republic of South Africa, 1996 (the Constitution),2 the High Court of South Africa3 has inherent jurisdiction. This includes power to review decisions of public organs or administrative action and supervisory jurisdiction over private associations.

The grounds of review at common law are primarily:
failure by a tribunal or a functionary to comply with its own rules; and
violation of the principles of natural justice.

In both cases, the review is limited to whether a proper or correct procedure was followed by the tribunal or functionary. Focus is mainly on the procedural aspects of the matter rather than the merits. However, the courts will in exceptional cases, consider the merits of the challenge and substitute the decision of the tribunal or functionary.

Despite these powers of review and having supervisory jurisdiction over private associations, South African courts have historically been reluctant to get involved in sports disputes. They have traditionally emphasised the contractual relationship between SGBs and their members instead of the nature of the power or function exercised by SGBs challenged before the courts. This invariably resulted in the courts finding that SGBs were private associations and their decisions were not susceptible to public law or judicial review.

JUDICIAL REVIEW OR SUPERVISORY JURISDICTION?
There is a long list of court decisions, especially in the pre-constitutional era, relating to decisions of SGBs in which the courts held that decisions of SGBs were private in nature and not subject to judicial review.4 A discussion of these court decisions is beyond the scope of this article as the focus is on the constitutional era.

Even in the constitutional era, however, the courts have to a degree continued to exclude decisions of SGBs from judicial review. A good example is the court’s decision in the Cronje v United Cricket Board of South Africa (Cronje)5 which was decided about four years after the Constitution came into effect. This matter was a result of the famous match fixing scandal that rocked South African cricket in the year 2000. After Hansie Cronje admitted to match fixing, the United Cricket Board of South Africa (Cricket Board) banned Cronje from all its activities and those of its affiliates. Cronje approached the court to review and set aside the resolutions of the Cricket Board.

One of the issues that the court was required to determine was whether the resolutions of the Cricket Board were susceptible to judicial review. The court held that, because the Cricket Board was a voluntary association that was not connected to the state, which exercised contractual, rather than statutory power, and the conduct of private bodies was governed by private law and not public law, thus the Cricket Board was not subject to public law rules of natural justice.

THE SHIFT IN JUDICIAL REVIEW PURSUANT TO THE ACT
The Cronje matter supports the argument that the courts have to a degree continued to treat decisions of SGBs and sports disputes as private disputes that are not susceptible to public law review, despite the advent of the Promotion of Administrative Justice Act, 3 of 2000 (the Act).

Section 33 of the Constitution guarantees the right to administrative action that is lawful, reasonable and procedurally fair to everyone. It prescribes that legislation must be enacted to give effect to the rights guaranteed in this section. The Act is the legislation enacted to gives effect to the constitutional rights guaranteed in section 33 of the Constitution. Section 1 of the Act defines administrative action, among other actions, as any decision taken, or any failure to take a decision, by
“a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect…”

Empowering provision is defined as “… a law, a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken.”

Pursuant to section 6, a decision or administrative action may be judicially reviewed if, among other things,
the administrator who made the decision did not have to the power to make the decision or was biased or reasonably suspected of bias,
a mandatory and material procedure was not complied with,
the procedure followed was unfair,
the decision was influenced by an error of law or contravenes the law,
the decision was taken in bad faith or arbitrarily or capriciously,
the decision is not rational or is otherwise unconstitutional or unlawful.

The grounds of review under the Act are wider than the supervisory jurisdiction of the courts or the common law grounds of review.

It is therefore not surprising that SGBs (and other private associations) go to greater lengths to protect their decisions from review under the Act.

THE MEANING OF ADMINISTRATIVE ACTION
To decide whether a decision of an SGB is an administrative action and thus reviewable under the Act, the main consideration is the nature of power exercised by, rather than the nature of, the functionary or body exercising the power.6 There are three main issues that the courts must consider in determining whether the decision of an SGB is administrative action susceptible to judicial review, namely whether:
there was a decision made by the SGB;
the decision was made exercising a public power or performing a public function; and
the decision was made in terms of an empowering provision.

The first and last issues are straightforward in most cases as there is always a decision challenged and that decision would have been made in terms of an empowering provision such as the rules or constitution of the SGB. The issue that has occupied the courts most is whether an SGBs decision was made by the SGB exercising public power or performing a public function.

In Coetzee v Comitis and Others (Coetzee)7 (which has been hailed as the Bosman ruling of South African football) the court held that the transfer rules of the National Soccer League (NSL) were unconstitutional and invalid. This followed a challenge by Coetzee against the rules of the NSL which restricted the transfer of footballers whose contracts with clubs had expired unless a transfer fee was paid to his former club. In deciding on the validity of the rules, the court considered the nature of the powers exercised, or functions performed, by the NSL. It held that the NSL, an SGB, was a body that performed a public function because football enjoyed large support in South Africa and the “fate of soccer players is of public interest.” This “victory” for public law enthusiasts was short lived as the court ruled in the Cronje matter (discussed above) that the Cricket Board, an SGB, did not exercise public power or perform a public function, thus its decisions were not administrative action and were not subject to judicial review.

In Tirfu Raiders Rugby Club v SA Rugby Union (Tirfu Raiders),8 the court departed from its position in the Cronje matter and issued a ruling that was more in line with the position adopted in Coetzee. It held that the power of the South African Rugby Union (SARU), the SGB responsible for the regulation of rugby throughout South Africa (the counterpart of the Cricket Board), was sufficiently public in nature and fell within the purview of the Act. However, the court cautioned that not every power exercised by SARU was public power and reviewable in terms of public law.

The court’s approach in Tirfu Raiders was confirmed in National Horse Racing Authority of Southern Africa v Naidoo and Another (Naidoo).9 In Naidoo the National Horse Racing Authority of Southern Africa (NHA) argued, among other things, that its decision to ban Naidoo (effectively ending his career) as a horse trainer was not administrative action susceptible to judicial review under the Act. It also argued that SGBs were excluded from the purview of the Act. The NHA further argued for the adoption, by the court, of the approach by English courts which generally excludes decisions of SGBs from judicial review as they are not statutory bodies or organs of state. The court held that the decision of the NHA was administrative action and there was no suggestion in the language used in the Act that the legislature intended to exclude SGBs and their decisions from the purview of the Act. It further held that the language of the Act is very wide to include decisions of SGBs where they exercise public power or perform a public function. The court once again cautioned that only some of the decisions of the NHA (an SGB) would constitute administrative action susceptible to judicial review under the Act.

The cases that followed Naidoo are in unison with the decision reached in Naidoo that only certain decisions of SGBs constitute administrative action reviewable under the Act. In Nyoka v Cricket South Africa (Nyoka),10 the court held that Cricket South Africa (CSA)11 was a juristic person exercising public power and performing public function within the purview of the Act, therefore its decisions were susceptible to judicial review were it exercised public power or performed a public function. The dispute in Nyoka related to a resolution by CSA to sack Nyoka as its President. The court reviewed and set aside a resolution by the CSA and ordered that Nyoka be afforded a fair hearing in terms of the CSA’s own rules and compliant with the rules of natural justice.

Similarly, in Louisvale Pirates v South African Football Association12 the court held that a decision of the South African Football Association (SAFA), the national association responsible for the administration of football in South Africa, was administrative action reviewable in terms of the Act. The court held that because SAFA was the dominant and only body governing football, a sport that was of public interest, in South Africa, exercised powers nationally, its decisions affected the public, it received funding from the government and performed a public function to, among other things, control sporting activities for the young and old, SAFA’s decision to discipline or suspend its members was a matter of public interest or concern reviewable under the Act. However, it must be noted that the court emphasised the need for applicants or claimants to exhaust internal remedies as prescribed in section 6 of the Act before resorting to the court for judicial review, unless it was blatantly clear that recourse to internal remedies would be a complete waste of time.

SGBS’ DISPUTE RESOLUTION PROCEDURES – ARBITRATION OR ADMINISTRATIVE ACTION?
When confronted by the question whether the decision of an arbitrator presiding over a football dispute in terms of the rules of SAFA was administrative action and reviewable by the court in terms of public law (the Act) in the seminal case of Ndoro and Another v South African Football Association and Other,13 the court answered the question in the affirmative. The dispute related to the eligibility of Ndoro, a professional footballer, to play for Ajax Cape Town Football Club (Ajax Cape Town) the third club he was registered with during the same season in two countries. The Dispute Resolution Chamber of the NSL had ruled that Ndoro was eligible to play for Ajax Cape Town. The arbitrator ruled that the Dispute Resolution Chamber of the NSL did not have jurisdiction over the dispute and directed that the matter be referred to the FIFA Players’ Status Committee.14

Ndoro and Ajax Cape Town approached the court to review and set aside the arbitrator’s decision. They argued, among other things, that the arbitrator’s decision was administrative action reviewable under the Act. The NSL argued that the arbitration proceedings were private and only subject to review under the Arbitration Act.15The court considered whether the arbitrator’s decision was reviewable and, if so, on what basis. The court, following the decisions in Tirfu Raiders and other earlier cases, held that not all decisions of SGBs were administrative action and susceptible to public law review. It added that
“there is no warrant to conclude that simply because a private entity is powerful and may do things that are of great interest to the public that it discharges a public power or function. Rather, it is the assumption of exclusive, compulsory, coercive regulatory competence to secure public goods that reach beyond mere private advancement that attract the supervisory disciplines of public law.”

The court then concluded that the NSL and SAFA (SGBs) exercised public powers, and the decision of an arbitrator sitting in terms of the SAFA rules was administrative action reviewable under the Act. The decision of the arbitrator was not set aside. The court ordered that the matter be referred to FIFA for consideration of the merits but for reasons different to the arbitrator’s reasons.16

INTERNATIONAL SPORTS FEDERATIONS AND ADMINISTRATIVE ACTION UNDER THE ACT
In Ndoro the court also considered whether the decisions of ISFs (FIFA in this case), insofar as they regulate sport in South Africa, are administrative action in terms of the Act and therefore susceptible to judicial review in South Africa. The court held that these decisions would be subject to judicial review where ISFs regulate sport in South Africa. This is very important as in most cases ISFs prescribe that any disputes in their respective sporting codes must be dealt with internally, with the Court of Arbitration of Sports (CAS) at the apex. Ndoro changes the position completely, in South Africa at least.

Similarly, a decision of an ISF such as the decision of the International Association of Athletics Federations (IAAF) to impose Eligibility Regulations for the Female Classification (Athletes with differences of Sex Development) (the Gender Regulations), which have been viewed by some commentators17 as targeting Caster Semenya, among others, can be reviewed in terms of the Act before South African courts were the IAAF to insist on the application of the Gender Regulations in South African athletics.18 It is therefore important for ISFs to consider, and ensure that they comply with, the Act when they regulate sport in South Africa.

COMMENT
It is clear that since the advent of the Act the courts have been more willing to intervene in sports disputes by way of public law judicial review. However, it must be reiterated that not all decisions of SGBs are subject to judicial review. A distinction must be drawn between decisions of SGBs that are made in the exercise of public power or performance of public function and decisions of SGBs that are private in nature. This distinction is undoubtedly important and welcome to SGBs and ISFs that may be concerned that every decision they make may land before, and be reviewed and set aside by, South African courts.

It is also important to note that South African courts are reluctant to exercise their jurisdiction where a party has not exhausted internal remedies set forth in the SGBs’ internal rules. Thus, judicial review in terms of the Act will in most instances be at the tail end of the process of challenging a decision of an SGB (or ISF), after an aggrieved party has exhausted internal remedies available in terms of the rules of the SGB (or ISF).

To some, the approach by South African courts is interventionist and may restrict SGBs and ISFs in regulating sport in South Africa. This is because sport is generally treated as, and is to a degree, unique and there are calls around the World to treat it differently acknowledging the specificity of sport. Indeed, the international hierarchy of sports regulation may justify the uniqueness of sport and the need for sport to be left to its own devices. This is more so where the SGBs or ISFs have put efficient dispute resolution procedures and tribunals in place that deal with disputes in sport expeditiously. Some of the proceedings before the tribunals of various SGBs or ISFs are a replica of court proceedings. The presiding officers in these tribunals are experienced sports administrators and lawyers, the parties are permitted legal representation and can raise any procedural challenge, or any defense, that a party would normally raise before a court. In such circumstances some argue it is not desirable for the courts to “interfere” sports disputes.

However, it is important for the courts to play an oversight role in terms of public law and maintain checks and balances in sport. Sport has a history of SGBs and ISFs trying to preserve their autonomy by any means, and in some instances disregarding fundamental rights of their members or participants in sport. Some SGBs and ISFs have attempted to elevate their rules, especially those of ISFs, above national laws. Internal dispute resolution tribunals have upheld this conduct of the SGBs or ISFs, perhaps genuinely believing that they do not offend national laws or public policy, only for such conduct to be ruled unlawful by the courts. Therefore, the courts’ oversight role is important, especially in South Africa where “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”