Semenya, the Ecthr and CAS, What Switzerland's Athletes, Federations and Counsel Must Do in 2026

The Grand Chamber of the European Court of Human Rights handed down its landmark judgment in Semenya v. Switzerland on 10 July 2025, finding that Switzerland had breached the applicant’s Convention rights in connection with a Court of Arbitration for Sport award. For every actor operating at the intersection of CAS, ECtHR and sports law in Switzerland, athletes, national federations, clubs, selection committees and their counsel, the ruling reshapes the litigation and compliance landscape heading into 2026.

This practitioner guide sets out the concrete steps Swiss stakeholders must take now: how to challenge a CAS award, how to defend one, and how to restructure internal governance to withstand human-rights scrutiny under Article 6 and Article 8 of the European Convention on Human Rights.

Executive Summary and Recommended Immediate Steps

The Semenya Grand Chamber decision confirmed that Switzerland bears responsibility under the Convention for the procedural and substantive human-rights compliance of CAS awards rendered on Swiss soil. The ruling does not give the ECtHR the power to annul or rewrite a CAS award directly, but it imposes a clear obligation on the Swiss legal system, and therefore on the Swiss Federal Supreme Court, to provide effective scrutiny of CAS awards that engage fundamental rights.

For athletes, this creates a new avenue of pressure: after exhausting domestic remedies (including the Swiss Federal Supreme Court appeal under Article 190 of the Swiss Private International Law Act, known as PILA), a successful ECtHR application can result in declaratory relief, just satisfaction, and systemic pressure on Switzerland to widen its review of CAS awards. For federations and clubs, the decision means that eligibility rules, disciplinary procedures and arbitration clauses must now demonstrably satisfy Convention standards, or risk successful challenges.

Industry observers expect a measurable increase in human-rights-based challenges to CAS awards and in compliance overhauls by Swiss-based international federations throughout the remainder of 2026. The following five-point checklist captures the highest-priority actions.

What the ECtHR Semenya Judgment Said: A Concise Legal Summary

The Grand Chamber judgment in Semenya v. Switzerland (Application No. 10934/21, 10 July 2025) addressed whether Switzerland had violated the European Convention on Human Rights by failing to provide adequate judicial review of a CAS award that upheld World Athletics’ Differences of Sex Development (DSD) regulations. The applicant argued that the CAS proceedings and subsequent Swiss Federal Supreme Court review failed to protect her rights under Article 8 (right to respect for private life) and Article 14 (prohibition of discrimination), read together with Article 6 (right to a fair trial).

The Grand Chamber held that Switzerland had violated Article 8, taken together with Article 14, by not ensuring that CAS or the Swiss Federal Supreme Court carried out a sufficiently thorough proportionality analysis of the eligibility regulations as applied to the athlete. The Court emphasised that where fundamental rights are at stake in sports arbitration, the reviewing court, here the Swiss Federal Supreme Court, must exercise more than minimal, formalistic scrutiny.

Key Legal Takeaways for Swiss Sports Law

• State responsibility for CAS. Because CAS has its seat in Lausanne and Swiss law governs the annulment of its awards, Switzerland is accountable for ensuring that Convention rights are respected in the CAS framework.
• Heightened proportionality review. A narrow public-policy review under Article 190(2)(e) PILA may no longer suffice where an award engages fundamental rights. The Court signalled that Swiss courts must apply substantive proportionality scrutiny.
• Discrimination and private life. Rules that classify athletes on the basis of innate biological characteristics engage both Articles 8 and 14; the respondent State must demonstrate that any restriction is necessary, proportionate and based on robust evidence.
• Remedial impact. The judgment awarded just satisfaction and is declaratory; it does not formally annul the CAS award. However, it creates an obligation on Switzerland to draw the necessary consequences in its domestic legal order.

What the Judgment Does NOT Say

The ECtHR did not rule that CAS lacks jurisdiction over sports disputes, nor did it declare the CAS system incompatible with the Convention as a whole. It did not order Switzerland to reopen or set aside the specific CAS award. The decision is not a blanket prohibition on sex-differentiated eligibility rules; rather, it requires that such rules be subjected to genuine, evidence-based proportionality assessment at every level of review. Athletes and counsel should therefore avoid over-reading the judgment as a guarantee of success in future challenges, the Court’s reasoning is fact-specific and centred on the adequacy of review, not the merits of the underlying regulation.

CAS, ECtHR and Swiss Review: Article 6 and Arbitral Jurisdiction After Semenya

The relationship between CAS jurisdiction and human rights has been contested across multiple ECtHR judgments. To challenge a CAS award in Switzerland, or to defend one, counsel must understand how the Strasbourg jurisprudence has evolved and what it now requires of CAS panels and Swiss reviewing courts.

Is CAS a “Court” for Article 6?

In Mutu and Pechstein v. Switzerland (Applications Nos. 40575/10 and 67474/10, 2 October 2018), the Grand Chamber held that CAS constitutes a “tribunal” within the meaning of Article 6 § 1 of the Convention when athletes have no realistic alternative but to accept its jurisdiction. The Court examined CAS’s institutional independence, procedural safeguards and the nature of the disputes submitted to it. This precedent was reinforced in Ali Riza and Others v. Turkey (2020), where the Court applied Article 6 to a national sports arbitration body and found structural independence deficiencies.

After Semenya, the position is clear: when an athlete is compelled to submit to CAS arbitration as a condition of competing, CAS is bound by the fair-trial guarantees of Article 6. This includes the right to a public hearing (unless waived), the right to a reasoned decision, and the requirement of an independent and impartial tribunal. Counsel acting for athletes should explicitly invoke Article 6 in CAS submissions and request a public hearing where the case involves fundamental-rights issues.

Jurisdictional Objections, Preserving the Record

A party that wishes to challenge CAS jurisdiction, or to argue that a particular dispute is non-arbitrable because it engages inalienable human rights, must raise that objection at the earliest procedural stage. Under the CAS Code of Sports-related Arbitration, jurisdictional objections not raised in the answer or the first written submission may be deemed waived. Preservation is essential: any argument that CAS lacks competence, or that the arbitration clause is vitiated by the absence of genuine consent, must be pleaded expressly and carried through every subsequent submission.

The following comparison table summarises the remedies available, the forum for each, and their practical effect for Swiss practitioners in CAS, ECtHR and sports arbitration in Switzerland.

How to Challenge a CAS Award in Switzerland: Practical Step-by-Step

For athletes and other parties seeking to challenge a CAS award, the primary domestic route is an appeal to the Swiss Federal Supreme Court under Article 190 PILA. This section provides the procedural roadmap, timelines and tactical advice that counsel need for an effective challenge.

Grounds for Annulment Under Article 190 PILA

Article 190(2) PILA provides an exhaustive list of grounds on which an international arbitral award, including a CAS award, may be challenged before the Swiss Federal Supreme Court:

1. Irregular constitution of the tribunal (Art. 190(2)(a)), including challenges to arbitrator independence or impartiality.
2. Jurisdiction (Art. 190(2)(b)), the tribunal wrongly accepted or declined jurisdiction.
3. Ultra petita or infra petita (Art. 190(2)(c)), the tribunal ruled beyond or failed to address the claims submitted.
4. Violation of equal treatment or the right to be heard (Art. 190(2)(d)), a critical ground post-Semenya, as denial of a fair hearing on proportionality evidence may now be more readily established.
5. Incompatibility with public policy (Art. 190(2)(e)), the broadest and most litigated ground; after Semenya, industry observers expect the Swiss Federal Supreme Court to interpret “public policy” to include Convention rights where fundamental interests are at stake.

Timelines and Procedural Steps, Swiss Federal Supreme Court

The following procedural timeline governs an appeal against a CAS award before the Swiss Federal Supreme Court:

Urgent Preservation Steps During CAS Proceedings

Counsel who anticipate a Swiss Federal Supreme Court challenge must lay the procedural groundwork during the CAS hearing itself. Failure to preserve arguments at the CAS stage can result in waiver or preclusion before the Federal Supreme Court.

• Plead Article 6 and Article 8 expressly. State on the record that the athlete’s Convention rights are engaged and that the panel must apply proportionality analysis.
• Request a public hearing. Where Convention rights are at issue, request an oral and public hearing in accordance with Article 6 § 1. If denied, note the denial on the record.
• Request detailed reasons. Ask the panel to provide a fully reasoned award, including its treatment of proportionality and any scientific or medical evidence.
• Object to procedural irregularities immediately. Any perceived irregularity, failure to admit evidence, time restrictions on oral argument, panel composition issues, must be objected to at the time, in writing.

Tactical Options: Provisional Measures, Amicus and Public Hearing Requests

Beyond the standard appellate pathway, counsel should consider several tactical tools. CAS Rule 37 allows parties to request provisional measures (e.g., interim eligibility pending resolution). Amicus curiae briefs, while not traditional in CAS proceedings, are increasingly accepted in cases raising systemic or human-rights issues, and their submission signals the broader significance of the dispute. Finally, a formal request for a public hearing, if refused, creates a documented procedural objection that strengthens an Article 6 argument before the Swiss Federal Supreme Court or the ECtHR.

Defending a CAS Award After Semenya: For Federations and Counsel

Federations and international governing bodies that have obtained a favourable CAS award must now prepare for heightened scrutiny. The Semenya judgment raises the evidentiary and procedural bar for defending eligibility rules, disciplinary sanctions and other regulatory measures that engage fundamental rights.

Defence Checklist

• Proportionality justification. Compile contemporaneous evidence, scientific studies, medical expert opinions, comparative regulatory analysis, demonstrating that the rule pursues a legitimate aim and is proportionate to that aim.
• Procedural fairness record. Document every stage of the decision-making process: notice given, opportunity to be heard, reasons provided, and the athlete’s actual participation.
• Human-rights balancing analysis. Include in written submissions a structured balancing exercise: identify the right engaged, the aim pursued, the necessity of the restriction, and the availability of less restrictive alternatives.
• Expert evidence strategy. Retain independent experts in advance, not only in the discipline itself but also in human-rights law, medical science and sports governance, to provide evidence that withstands cross-examination and proportionality review.
• Model witness statement points. Witness statements from federation officials should address the consultative process behind the rule, the scientific basis considered, and the efforts made to minimise interference with athletes’ rights.

How Federations Should Document Regulatory Decision-Making

The likely practical effect of Semenya is that reviewing courts will scrutinise not only the content of a federation’s rule but the process by which it was adopted. Federations should maintain a decision log that records: the evidence considered, the stakeholder consultations undertaken (including with affected athletes), the alternatives evaluated and rejected, and the reasons for the final decision. This documentation should be contemporaneous, not prepared after a challenge is filed, and should be disclosed to the CAS panel as part of the evidentiary record.

Swiss Federal Supreme Court Practice and Recent 2025–2026 Rulings Affecting CAS Review

The Swiss Federal Supreme Court (Bundesgericht / Tribunal fédéral) has historically applied a narrow standard of review to CAS awards under Article 190 PILA. In practice, annulment has been granted rarely, and the Court has repeatedly emphasised that it does not act as a court of appeal on the merits. However, the Semenya judgment is expected to shift this posture in cases engaging fundamental rights.

Practical Tips for Petition Drafting and Oral Argument

• Frame the public-policy ground broadly. When invoking Article 190(2)(e), explicitly argue that Swiss public policy incorporates the Convention rights found violated in Semenya. Cite the Grand Chamber’s reasoning on State responsibility.
• Attach the HUDOC judgment. Include the full Semenya judgment as an annex to the petition and reference specific paragraphs of the Grand Chamber’s proportionality analysis.
• Request oral argument. While the Swiss Federal Supreme Court often decides on the papers, an oral hearing can be requested in cases of particular significance. In a post-Semenya challenge, this request underscores the fundamental-rights dimension.
• Address the standard of review directly. Acknowledge the Court’s traditionally narrow review but argue that the ECtHR’s findings require a more intensive proportionality scrutiny where Convention rights are at stake.

Common Defects on Which Courts Annul Awards

Based on established Swiss Federal Supreme Court jurisprudence, the most successful grounds for annulment of CAS awards have been:

• Right to be heard (Art. 190(2)(d)). Failure by the CAS panel to address a party’s key arguments or to admit critical evidence.
• Public policy (Art. 190(2)(e)). Awards that contradict fundamental principles of Swiss law, a category that, after Semenya, early indications suggest will be interpreted to include Convention-derived proportionality requirements.
• Jurisdiction (Art. 190(2)(b)). Disputes over the scope of the arbitration agreement or the arbitrability of the underlying claim, particularly relevant where a party contests whether consent to CAS jurisdiction was genuine.

Compliance Checklist for Swiss Federations and Clubs

Sports governance compliance in Switzerland now requires active alignment with Convention standards. The following entity-specific checklist identifies the changes that federations, clubs and selection committees should implement by September 2026 to reduce litigation risk and demonstrate good-faith compliance with the principles established in Semenya.

Practical Annexes: Sample Pleadings, Preservation Language and Checklist Templates

Note: The following templates are schematic and illustrative only. They do not constitute legal advice. Parties should instruct qualified counsel to adapt them to the facts of each case.

Template A, Preservation Language for CAS Submissions

“The Respondent/Claimant hereby expressly preserves all arguments under Articles 6, 8 and 14 of the European Convention on Human Rights, as applicable to these proceedings by virtue of the Grand Chamber’s judgment in Semenya v. Switzerland (Application No. 10934/21, 10 July 2025). The party requests that the Panel apply a full proportionality analysis to the impugned regulation and provide detailed reasons for its findings. The party further requests a public hearing in accordance with Article 6 § 1 ECHR. In the event that any of these requests are denied, the party notes the denial on the record for purposes of any subsequent appeal.”

Template B, Sample Ground for Swiss Federal Supreme Court Challenge (Schematic)

“The award is incompatible with Swiss public policy (Art. 190(2)(e) PILA) in that it applies [the impugned regulation] without conducting the proportionality analysis required by Articles 8 and 14 ECHR, as mandated by the Grand Chamber in Semenya v. Switzerland. The CAS Panel failed to assess whether the restriction on the athlete’s rights pursues a legitimate aim, is necessary in a democratic society, and is proportionate to that aim. This failure renders the award incompatible with the fundamental values of the Swiss legal order.”

Template C, Federation Clause Language to Reduce Risk

“Any eligibility or disciplinary decision taken under these regulations shall be accompanied by written reasons, shall be communicated to the affected athlete within [X] days, and shall be subject to appeal before [an independent internal body] prior to referral to the Court of Arbitration for Sport. In reaching any decision, the decision-maker shall apply a proportionality analysis, having regard to the athlete’s fundamental rights including the right to respect for private life and the prohibition of discrimination.”

Conclusion

The Semenya Grand Chamber judgment has redrawn the boundaries of CAS, ECtHR and sports arbitration practice in Switzerland. Athletes now have stronger tools to demand proportionality review; federations face higher procedural and evidentiary standards; and Swiss counsel must master a dual-track litigation strategy that spans Lausanne and Strasbourg. The steps in this guide, from preservation language in CAS submissions to compliance overhauls for federations, are designed to be actionable immediately. For athletes, federations and counsel navigating this new landscape, expert guidance from a qualified sports law specialist is essential. Practitioners across Switzerland can find experienced Swiss sports lawyers through the Global Law Experts directory.

Sources

1. HUDOC, ECtHR, Semenya v. Switzerland (Grand Chamber)
2. European Convention on Human Rights, Council of Europe Treaty Text
3. Court of Arbitration for Sport (CAS / TAS), Official Site
4. Swiss Federal Supreme Court (Bundesgericht / Tribunal fédéral), Decisions Repository
5. WADA, World Anti-Doping Agency
6. Swiss Federal Office of Sport (BASPO)