Revisiting State Responsibility in CAS Arbitration: Lessons from Semenya v Switzerland

The Court of Arbitration for Sport (“CAS”) is the final body for dispute resolution in international sports arbitration. However, CAS is a private body primarily governed by Swiss law (Article R45 of CAS Code). Its jurisdiction is based on arbitration clauses contained in contracts between parties. The international sporting ecosystem is also largely private, with most actors, including major sporting federations, operating as private legal entities. This has raised longstanding concerns that the private and arbitration-oriented structure of international sport does not adequately protect the human rights of athletes involved in sports disputes.

These concerns have been partially mitigated by the jurisprudence of the European Court of Human Rights (“ECtHR”), which has held in X and Y v The Netherlands that states have a positive obligation to ensure that private bodies within their jurisdiction comply with international human rights instruments, even where those instruments are not directly binding on the bodies themselves. CAS is located in Switzerland (Article R28 of CAS Code), a signatory to the European Convention on Human Rights (“ECHR” or “Convention”). Accordingly, Switzerland has a positive obligation to ensure that CAS complies with Convention standards, as confirmed by the ECtHR in Mutu & Pechstein v Switzerland (see here for the Blog’s previous coverage).

However, determining which state bears this positive obligation is not straightforward. CAS is seated in Switzerland, meaning that the Swiss legal system is almost always implicated. At the same time, the parties to the dispute and the sporting bodies involved are often located in different jurisdictions, including states that are not parties to the ECHR. The question of which state is responsible for guaranteeing Convention rights in such situations has therefore remained uncertain.

Previous coverage on the Blog has examined Semenya, including the Grand Chamber’s reasoning under Article 6(1), explaining the Court’s “particularly rigorous examination” standard and its implications for future cases (see here). Another post has considered whether this heightened standard is confined to sports arbitration or could also extend to commercial and other forms of voluntary arbitration, drawing comparisons with the CJEU’s judgment in RFC Seraing v FIFA (see here).

This post, on the other hand, focuses on the question of state responsibility for CAS awards under the European Convention on Human Rights. Instead of examining how courts should review CAS awards, it asks which state should bear responsibility for a CAS award in the first place. It examines whether responsibility should depend on the place of arbitration or the location of the sporting body, an issue that has developed through the case law of both the CAS and the ECtHR.

This post argues that the ECtHR’s 2025 judgment in Semenya v Switzerland (“Semenya”) clarifies this issue by distinguishing between procedural and substantive obligations within international sports arbitration. The judgment expressly confirms Switzerland’s responsibility for procedural Convention guarantees arising from its supervisory relationship with CAS arbitration. At the same time, by declining to attribute substantive responsibility for the underlying sporting regulations to Switzerland, the judgment narrows the possible location of substantive responsibility to the state in which the relevant sporting body is constituted and regulated. The post first discusses the two competing standards for determining state responsibility in sports arbitration: the place-of-arbitration standard and the place-of-sporting-body standard. It then examines how Semenya reconciles these standards.

Competing Standards of State Responsibility in Sports Arbitration

Over the years, courts have approached the question of state responsibility in sports arbitration through two competing standards. The first is the place-of-arbitration standard, under which responsibility lies with the state where the arbitration takes place. The second is the place-of-sporting-body standard, under which responsibility lies with the state where the relevant sporting federation is constituted and regulated.

Consider the example of World Athletics, the international governing body for athletics, headquartered in Monaco. If an athlete alleges that World Athletics violated their human rights, but the arbitration is held before CAS in Switzerland, the two standards yield different outcomes. Under the place-of-arbitration standard, Switzerland would be responsible for ensuring compliance with Convention rights. Under the place-of-sporting-body standard, responsibility would instead lie with Monaco.

The place-of-sporting-body standard first emerged in Pistorius v IAAF (2008). Oscar Pistorius, a double-amputee sprinter, challenged regulations issued by the International Association of Athletics Federations (“IAAF, now World Athletics”) that affected his eligibility to compete. The CAS panel declined to apply the Convention on the Rights of Persons with Disabilities and its Optional Protocol (the “Disability Convention”) because Monaco, where the IAAF was headquartered, had not ratified the Disability Convention. The relevant question was therefore tied to the state’s legal obligations governing the federation, rather than to the arbitral seat. The IAAF was consequently treated as not being bound by the corresponding obligation.

This approach appeared at the ECtHR level in Ali Rıza v Turkey (2020). The five applicants challenged the structural independence of the Turkish Football Federation's arbitration committee. The ECtHR found an Article 6 violation in relation to two applicants. The ECtHR held Turkey responsible for the Article 6 violation because the Turkish Football Federation was constituted and regulated under Turkish law. This remained the case even though the first applicant later pursued independent proceedings before CAS and the Swiss Federal Tribunal (“SFT”). The ECtHR located the source of the violation in the regulatory structure of the Turkish Football Federation.

Alongside this, courts also developed the place-of-arbitration standard, under which Switzerland bears responsibility for CAS awards because CAS is seated in Lausanne and its awards are reviewable only by the SFT. This argument first emerged in Lazutina and Danilova v Switzerland. The applicants, two Russian cross-country skiers disqualified for doping, argued that the CAS award violated their human rights. They contended that Switzerland was responsible because the CAS award remained a private decision until the SFT upheld it, giving it legal effect under Swiss law. Switzerland, therefore, became responsible for any resulting violation, despite not being a party to the original dispute. Although the application was withdrawn before the ECtHR ruled on the merits, the same reasoning was later revived in Mutu and Pechstein v Switzerland.

The standard was developed in NADA & KNSB v W. There, a CAS panel observed that although the direct applicability of the ECHR to private arbitration remained unsettled, Switzerland nevertheless bore indirect obligations because Swiss courts exercised supervisory jurisdiction over CAS proceedings.

The ECtHR endorsed this reasoning in Mutu and Pechstein v Switzerland. The Court held that Switzerland’s responsibility was engaged because the SFT had dismissed the appeals against the CAS awards, thereby incorporating them into Swiss law. This was so even though Switzerland had no substantive connection to the underlying dispute. The same reasoning was subsequently reaffirmed in Platini v Switzerland. The SFT later confirmed, in a Turkish match-fixing dispute (4A_486/2019), that ECHR claims remained indirectly relevant through the doctrine of procedural public policy.

The coexistence of these two standards left a central question unresolved in sports arbitration. It remained unclear whether state responsibility arose from procedural supervision of arbitration or from the fact that the relevant sporting federation created and imposed the underlying rules in the first place. As the next section argues, Semenya's reasoning significantly clarifies this ambiguity by separating procedural responsibility from substantive attribution.

Procedural and Substantive Responsibility after Semenya

The controversy in Semenya arose from challenges brought by South African athlete Caster Semenya against the Differences of Sex Development (“DSD”) Regulations, 2019, issued by World Athletics. Semenya argued that the regulations were discriminatory and violated her Convention rights. After unsuccessfully challenging the regulations before CAS and the SFT, she approached the ECtHR. The dispute resulted in both a 2023 Chamber judgment and a subsequent 2025 Grand Chamber judgment.

The 2023 Chamber judgment created uncertainty about the basis for allocating Convention responsibility in sports arbitration. On the one hand, the Chamber found Switzerland’s Convention obligations engaged because the SFT had reviewed and validated the CAS award within the Swiss legal order. On the other hand, the Chamber stopped short of attributing the underlying DSD Regulations themselves to Switzerland. The judgment, therefore, appeared to engage both the place-of-arbitration and place-of-sporting-body standards without clearly distinguishing their respective roles.

The 2025 Grand Chamber judgment can be read as clarifying this issue by drawing a clearer distinction between procedural responsibility and substantive responsibility. The Grand Chamber held that Switzerland’s obligations arose because CAS and the SFT formed part of a procedural framework operating within Swiss jurisdiction (paragraphs 104-105 of the judgment). Switzerland, therefore, bore responsibility for procedural Convention guarantees within the arbitral process, including effective judicial review, institutional independence, and meaningful scrutiny of arbitral outcomes (paragraph 201). At the same time, the Grand Chamber declined to attribute substantive responsibility for the DSD Regulations themselves to Switzerland (paragraph 80). Switzerland’s responsibility was instead confined to the adequacy of judicial protection available within the Swiss arbitral framework (paragraph 200).

The logic behind the distinction is the existence of a sufficient jurisdictional nexus between the state and the relevant private actor. Under the ECtHR’s positive obligations framework, a state can only be expected to secure Convention compliance in relation to bodies operating within its jurisdictional and supervisory control. In Semenya, Switzerland possessed such a nexus in relation to CAS and the SFT, both of which operated within the Swiss legal order and were subject to Swiss supervisory authority. However, the Court did not treat Switzerland as exercising comparable control over World Athletics, a sporting federation constituted and regulated outside Switzerland.

Read together, this reasoning implicitly clarifies the relationship between the two competing standards discussed earlier. The place where arbitration is conducted has sufficient jurisdictional nexus to ensure procedural rights arising from the arbitral process itself. However, that nexus does not necessarily extend to the substantive conduct of sporting federations whose regulations may give rise to the underlying rights violation. In such cases, the logic of the judgment points toward the state exercising regulatory authority over the relevant sporting federation as the more appropriate locus of substantive responsibility. While the Grand Chamber did not expressly endorse a place-of-sporting-body standard, its reasoning substantially narrows the possible basis on which substantive Convention responsibility may be allocated in future sports arbitration disputes.

Conclusion

Semenya represents an important development in the relationship between international sports arbitration and the Convention system. The Grand Chamber expressly confirms Switzerland’s procedural obligations arising from its supervisory relationship with CAS arbitration. At the same time, by declining to attribute substantive responsibility for the underlying sporting regulations to Switzerland, the judgment reshapes the understanding of substantive responsibility within the Convention framework. Although the Court did not expressly adopt a place-of-sporting-body standard, its reasoning points strongly in that direction. Read in this way, Semenya introduces greater doctrinal coherence into sports arbitration while preserving meaningful human rights accountability within an increasingly transnational sporting order.