This is the third article in our Employment Law in Sport series to be published over the course of 2019.

Introduction

In our first article in the series we considered the distinction in Ireland between athletes who are deemed employees and those who are not and in our second article we considered the potential for discrimination claims to arise between athletes and their employer. This article considers the Semenya case and similar sport discrimination claims, particularly in situations where athletes are not deemed employees and the potential redress options open to non-employee athletes in Ireland.

The Court of Arbitration for Sport (CAS) decided on 1 May 2019 by majority to dismiss Caster Semenya's and Athletics South Africa's (ASA) arbitration request to declare invalid and void the International Association of Athletics Federation's (IAAF) Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development) (the Regulations). The Regulations provide that female athletes who have testosterone levels above a certain threshold cannot compete in athletics events from 400m to 1 mile. Caster Semenya, the reigning 800m World Champion, is one of the highest profile athletes effected by the Regulations.

The Caster Semenya Case

When South African middle-distance runner Caster Semenya won the gold medal in the 800-meter final of the 2009 IAAF World Championships, she was asked to take a gender verification test due to suspicions of drug use. The results revealed that she had significantly higher levels of testosterone than typically expected in female athletes. In response the IAAF introduced an earlier version of the Regulations, known as the Hyperandrogenism Regulations, which provided that unless female athletes with enhanced testosterone levels underwent medical intervention to reduce their levels of testosterone, they would be suspended from international competitions.

In 2015, Indian sprinter Dutee Chand challenged the Hyperandrogenism Regulations on the basis that the IAAF could not provide scientific evidence about the relationship between enhanced testosterone levels and improved athletic performance. CAS suspended the Hyperandrogenism Regulations for two years to allow the IAAF to produce scientific evidence of a correlation between the two. This allowed Chand and Semenya to compete at the Rio Olympics in 2016 without undergoing medical intervention.

The IAAF subsequently introduced the Regulations, limiting the athletes affected to those who competed in events from 400m to 1 mile. Semenya, an 800m athlete, subsequently sought a ruling from CAS that the Regulations were discriminatory, unnecessary, unreliable and disproportionate. The Regulations were due to come into effect in November 2018. However, these were suspended, pending the outcome of these arbitration proceedings.

While CAS found in its decision that the Regulations are discriminatory, it found that this discrimination is justified in that the Regulations are a "necessary, reasonable and proportionate means of achieving the IAAF's aim of preserving the integrity of female athletics in the restricted events". Semenya has 30 days to appeal the decision to the Swiss Federal Tribunal.

It will be interesting to see whether Semenya will decide to pursue this option of an appeal and if so, the grounds upon which the appeal will be based. It seems probable that any appeal would include a challenge to the legality of the CAS finding that the IAAF's discrimination was justified.

In Ireland

We have considered various aspects of the laws in Ireland that deal with discrimination in Ireland in our previous articles, particularly concerning protections from discrimination afforded to employees in Ireland by the Employment Equality Acts 1998 to 2015 (EEA). However, many athletes in Ireland, and in the UK under similar legislation, are not deemed employees of sporting bodies and are therefore not protected by this legislation. An athlete in Ireland, who is not an employee, will be afforded the protection of the Equal Status Acts 2000-2015 (ESA), which has similar application as the EEA does for employees.

Similarly, to CAS' decision to find that the Regulations were justified despite being discriminatory, it must be noted that the ESA does allow for people to be treated differently in relation to providing or organising sporting facilities or events. However, such discrimination must be reasonably necessary and relevant. For example, sporting bodies can justifiably discriminate on grounds of age by operating age specific events where athletes over the prescribed age cannot compete. This is reasonably necessary to allow children to compete against other children of the same age and similar strength and size.

The ESA was considered in the Supreme Court decision involving Portmarnock Golf Club and its male-only membership policy. This case considered whether the Club fell under another exemption provided by Section 9 of the ESA, i.e. that the Club will not be discriminatory if its principal purpose is to cater only for the needs of a particular group (in this case, men). It was held that the purpose of the club was to cater exclusively for men and as such it fell under the exemption and the Club was not deemed to be discriminatory.

Multiple claims under the ESA have been taken to the WRC against sporting bodies. For example, a female member of a shooting club successfully claimed that she was treated less favourably than male members in a shooting club. She was one of the first females to become involved in this shooting club and she claimed that the club's environment was hostile and offensive towards her gender. She brought her case under the ESA and was awarded €2,500 in compensation for the effects of this discrimination and harassment on the grounds of gender. Other claims under the ESA have been taken against golf clubs, shooting clubs, basketball clubs and fishing clubs, to name but a few.

Practical Tips

In our second article in this series we advised sporting body employers of the proactive steps they can take to mitigate against negative publicity and discrimination claims from their employees. Sporting bodies and clubs who do not have employees should take similar steps and must ensure they, and their advisors, remain vigilant of the complex and developing law in this area and ensure this is reflected in the rules and procedures they put in place for participation in their events.