The International Olympic Committee has asked an Ontario court to throw out an unprecedented human rights complaint lodged by an elite transgender cyclist.
Kristen Worley, the cyclist, bypassed international sport's usual dispute-settlement procedures in June when she took her complaint to the Human Rights Tribunal of Ontario alleging that the IOC's anti-doping and gender verification policies are discriminatory. Worley charges that these policies have damaged her health and her ability to continue taking part in competitive cycling.
But in documents filed to the Superior Court of Justice of Ontario, the IOC, based in Lausanne, Switzerland, argues that the tribunal has no jurisdiction in the case and that even accepting Worley's complaint is "a violation of Switzerland's sovereignty." Proceeding with the complaint, the IOC argues, "would significantly undermine the independence of the IOC and the Olympic Movement."
At stake is whether athletes can seek redress for grievances through their own countries' courts or whether these grievances must be channeled, as they have in the past, through the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.
Sport's highest court
Founded in 1984 by the IOC, the CAS is not a traditional court, but an arbitration body. It deals with a host of sports disputes ranging from sponsorship contracts and media rights to doping violations. Its rulings are considered binding.
Its founders believed that if national courts adjudicated sports disputes, athletes and others would face conflicting laws across jurisdictions.
Though it started as an experiment, its influence has grown. Its arbitrators — mostly judges, professors and sports lawyers — heard 232 cases during the 1990s.
Its popularity has grown as sport has become more commercialized and governing bodies have been eager to circumvent national courts. In 2014 alone, the court received 408 filings.
All Olympic federations, many other sports bodies and the World Anti-Doping Agency recognize the CAS as the final arbiter of sporting disputes. Most contracts and licensing deals that athletes must sign in order to participate in elite sport have arbitration clauses stipulating that disputes must be resolved through the court.
"It's like the mafia," says David Larkin, a Washington-based attorney and expert in international sports law. "The IOC is telling you that you may not have your day in court." He adds that arbitration clauses mean that athletes "have a gun to their heads."
Amélia Salehabadi-Fouques, a Montreal-based sports lawyer, said that Worley and any other athlete "cannot just give up [their] rights to have a case heard in a public court," which is what arbitration clauses force them to do.
Worley — who declined to comment while her complaint is before the Ontario tribunal — has never signed the clause binding her to CAS according to her application.
As an athlete with a transitioned history, Worley alleges that a healthy level of androgens in her body — as advised by her doctors — exceeds the range mandated by international cycling, whose policies, she says, come from the IOC. Adhering to cycling's androgen levels would push her body into "an extreme post-menopausal state" and leave her too ill to cycle. She asked for an exemption to the clause in her race declaration binding her to these levels, but was never provided a response.
Taking a case to CAS can be expensive. According to sports lawyers, the cost of a typical case before CAS is $50,000 to $100,000.
Larkin says he has been approached time and again by athletes who feel they have been wronged by sport. But once they learn of the costs, they decide against bringing their complaints to CAS.
"It's pay-to-play justice," Larkin said. "It's absurd."
Lack of independence
Critics also raise the issue of CAS's independence. They are concerned, for example, that without stringent judicial rules against conflicts of interest, sports governing bodies can push their cases to friendly arbitrators.
Under the process of panel selection, each party chooses an expert from an approved pool, and the two selected arbitrators decide on the third. If they fail to agree, the International Court of Arbitration for Sport (ICAS) — the secretariat of CAS — gets a pick. The ICAS is composed of individuals nominated by sport governing bodies who could potentially influence the third pick in their favour.
"There is an embedded structural bias of CAS favouring sports governing bodies," Antoine Duval, a researcher in international sports law at the TMC Asser Institute in The Hague, Netherlands, wrote in an email.
A German court agreed in a landmark decision earlier this year. In 2009, the International Skating Union banned German speed skater Claudia Pechstein — a five-time gold medallist — over an irregular blood sample. CAS upheld the ISU's ban so Pechstein challenged it in a Munich court. It ruled that the doping ban was illegal because she had no choice but to sign the arbitration clause binding her to CAS, which it described as an anti-competitive tribunal with a bias against athletes. That ruling is being appealed.
There are many who continue to defend the CAS and laud it as the one bright spot in a dark sports governance landscape.
Bruce Kidd, a former Olympian and principal of the University of Toronto's Scarborough campus, appeared before CAS earlier this year as a member of a team advising Indian sprinter Duttee Chand. The IAAF, the governing body for international athletics, banned Chand from competition, arguing that the elevated levels of naturally occurring testosterone in her body — the result of a medical condition called hyperandrogenism — gave her an unfair competitive advantage. In a huge victory for Chand, the CAS temporarily struck down the hyperandrogenism regulations in international athletics, clearing the way for Chand to compete.
"In both the hearing and the decision, we were full of admiration for the careful, objective, independent and also nuanced way in which the court behaved," Kidd said. "The development of a particular capacity in sport law and adjudication provides advantages to athletes that the regular justice system has rarely been able to provide."
Duval wrote in an email that the shortcomings of CAS are garnering more attention in the wake of the Pechstein case. If she wins her appeal, more athletes — like Worley — will have a strong incentive to challenge sporting decisions before their national courts. The more likely scenario is that "the Pechstein saga will lead to a rebirth of CAS and not to its demise," he states.
"People who are interested in athletes' rights and human rights are following Worley's case very closely," said Kidd.