Associate Professor Mark Conrad was quoted in a Law360 article about the Court of Arbitration for Sport’s decision to affirm regulations limiting testosterone levels for female athletes.
A CAS tribunal on May 1 rejected South African middle distance runner Caster Semenya’s appeal fighting the International Association of Athletics Federations’ rules, which require female athletes who compete in certain events and have testosterone levels in the male range to reduce those levels through medication. The rules apply to female athletes born with chromosomes typical of males.
The decision has sparked a heated human rights and ethics debate over the propriety of the IAAF forcing female athletes with “differences of sex development” to take medication. Outside of that, however, the decision has placed a spotlight on what is essentially a forced arbitration procedure for elite international athletes — a deeply entrenched system that is nevertheless criticized for its inconsistency, lack of a substantive appellate mechanism and a perceived bias against athletes.
And it’s not just the issue of precedent. CAS has also been criticized because its pool of arbitrators tends to come from within the international sports establishment — meaning there’s a perception that arbitrators are biased against athletes.
Although CAS has tried in recent years to expand its arbitrator pool, it’s unclear whether that will resolve the issue since these types of cases are so complex and require specialized expertise and training.
“It’s not as if an arbitrator on the street could take these cases,” said Mark Conrad, a business law professor at Fordham University who focuses on sports law.