ASA DUMB-FOUNDED AT CAS RULING, CONSIDERING OPTION OF SWISS FEDERAL TRIBUNAL
Athletics South Africa (ASA) has received the ruling from the Court of Arbitration for Sport (CAS) and we are deeply disappointed and profoundly shocked that the CAS award is in favour of upholding the new IAAF regulations for female athletes.
ASA had initially attempted to negotiate with the IAAF against the implementation of the regulations but when no agreement was reached, it was resolved that the matter should be ventilated before CAS.
ASA respects the CAS decision and will now review the ruling and decide whether to consider the option of taking this matter to the Swiss Federal Tribunal within the 30 days as stipulated in the ruling. Due to confidentiality constraints, ASA is limited in its criticism of the award at this stage.
We are however reeling in shock at the how a body held in high esteem like CAS can endorse discrimination without flinching.
According to their ruling: “The Panel found that the DSD Regulations are discriminatory, but the majority of the Panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events.”
South Africa knows discrimination better and CAS has seen it fit to open the wounds of apartheid a system of discrimination condemned by the whole world as a crime against humanity.
For CAS does not only condone discrimination but also goes to lengths to justify it, only undermines the integrity that this body is entrusted with. We believe their decision is disgraceful.
ASA is however encouraged to take the matter further for the following reasons that include observations raised by CAS in their ruling:
a. The award is not an unanimous award as two judges against one voted in favour of IAAF;
b. CAS noted the difficulty to rely on concrete evidence of actual (in contrast to theoretical) significant athletic advantage by a sufficient number of 46 XY DSD athletes in the 1500m and 1 mile events.
c. The CAS panel suggested that the IAAF must therefore consider deferring the application of the DSD Regulations to these events until more evidence is available;
d. The CAS panel has raised several concerns about the possibility of harmful effects on those athletes who have to undergo treatment noting the difficulties of implementation of the DSD Regulations in the context of a maximum permitted level of testosterone.
e. The side effects of hormonal treatment, experienced by individual athletes could, with further evidence, demonstrate the practical impossibility of compliance which could, in turn, lead to a different conclusion as to the proportionality of the DSD Regulations.
f. The CAS panel strongly encouraged the IAAF to address these concerns when implementing the DSD Regulations, bearing in mind that the DSD Regulations are a “living document”, as asserted by the IAAF itself.
g. The panel has indicated that the regulations need on-going review.
h. That the CAS award may still be appealed at the Swiss Federal Tribunal within 30 days.
The national federation continues to express our wholehearted support for Caster Semenya and all other female athletes who are similarly affected by the CAS award around the world. ASA will shortly decide on the way forward and further decide on whether to challenge the award or not.
ASA was confident of a favourable outcome given the human rights, medico-legal and scientific arguments and evidence that we believe invalidated the regulations. It is these facts that have left ASA shocked that CAS rejected these compelling factors in favour of the IAAF. Given the profound and global effect plus consequences the implementation of the regulations will have, the regulations may warrant to be tested in a higher tribunal with jurisdiction to pronounce on the CAS ruling.
The rejection by South African and international bodies representing the medical and legal fraternity regarding the implementation of the regulation on ethical and medical grounds, is of particular significance. ASA reiterates that this may not be the end of the matter. In that regard ASA appeals to members, athletes, the public, the private sector and government to continue their support of ongoing efforts as we review the ruling and decide whether to have the award overturned and set aside.
We take the opportunity to thank all local and international legal and medical teams who worked on the case for presenting a solid case at CAS. We also reach out with high gratitude to the government agencies including the SA Ambassador in Geneva Nozipho Mxakato-Diseko, Minister of International Relations and Cooperation Lindiwe Sisulu for their collective role in taking the matter to the United Nations which resulted in resolution 42 condemning the new rules. We also send our gratitude to local and international organisations for their co-operation and support throughout the case from its inception in June 2018.
We are still humbled by the support of the State President Cyril Ramaphosa who led the calls of support to his government, the nation, parliament, the various political parties, superstars and friends. We thank the South African media for their support on this matter.
The support of our Minister for Sport and Recreation South Africa Ms Tokozile Xasa and her Director General Alec Moemi, was of critical importance. ASA also thanks the UNHRC, the WHO, World Medical Association, different governments around the world and fellow national federations that have continued to rally behind this noble course.
Ø PLEASE NOTE: ASA is unavailable for further comment on the matter, nor available for media interviews including sound bytes for radio and television.
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