On July 10, 2025, the Grand Chamber of the European Court of Human Rights (ECtHR) ruled that Switzerland violated Article 6 of the European Convention on Human Rights (the Convention) by failing to provide elite runner Caster Semenya with a fair hearing. This decision relates to the Swiss Federal Supreme Court’s limited review of a Court of Arbitration for Sport (CAS) award that upheld Semenya’s exclusion from international women’s competitions due to her refusal to undergo hormone therapy to reduce her naturally elevated testosterone levels.

Because of the rules governing athletes› participation in international competitions, Semenya’s legal avenues for contesting her exclusion were confined to CAS arbitration and the ensuing right to appeal the CAS award to the Swiss Federal Supreme Court as the sole judicial authority reviewing arbitral awards in Swiss-seated arbitrations. In terms of substance, the Swiss Federal Supreme Court’s power of review is limited to public policy, meaning it merely examines whether an award complies with the fundamental principles and values that, according to Swiss conceptions, should form the basis of any legal order.

As case law demonstrates, the Swiss Federal Supreme Court has been very reluctant to set aside arbitral awards on this ground, having done so only twice in the past 25 years. In line with this, in the Semenya set-aside proceedings, it did not fully review the CAS panel’s conclusion that Semenya’s exclusion was proportionate and compatible with her fundamental rights and, based solely on public policy review, rejected her set-aside application.

In line with Mutu & Pechstein v. Switzerland, the ECtHR found that Semenya was compelled to accept mandatory arbitration in order to be eligible to participate in international competitions. Given the compulsory nature of the arbitration, the structural imbalance between athletes and sports governing bodies and the dispute’s implications for civil rights – specifically, fundamental rights related to bodily integrity and dignity – the ECtHR found that the Convention requires a «particularly rigorous examination». It concluded that the Swiss Federal Supreme Court had failed to meaningfully address Semenya’s arguments, relying instead on an overly restrictive interpretation of public policy. Accordingly, Switzerland was found in violation of the guarantees pursuant to Article 6 of the Convention.

The ECtHR ruling aligns with a broader trend in European jurisprudence demanding heightened judicial scrutiny in mandatory arbitration, particularly in sports arbitration. In International Skating Union v. European Commission, the Court of Justice of the European Union (ECJ) held that the mandatory CAS arbitration system, coupled with limited judicial oversight by the Swiss Federal Supreme Court and the lack of judicial review by the ECJ, undermined effective judicial protection in EU competition law matters.