This article explores the applicability, if any, in the United States of a decision rendered by a private sports arbitration organization in Lausanne, Switzerland: the Court of Arbitration for Sport (CAS). The decision validated regulations of World Athletics—the private organization that governs track and field internationally—which had the effect of banning an Olympic champion, Caster Semenya of South Africa, from international competition against females because she had testosterone levels that World Athletics deemed too high. The article focuses on the fact that the CAS decision uses the law of Monaco to decide the matter. CAS specifically states that the decision may not apply in other countries like the U.S. CAS expressly leaves such decisions to the courts of the respective countries involved. The article then explores the reasoning of CAS with respect to both the U.S. law of discrimination and the law of evidence. The article concludes that the CAS decision would not stand up under either set of laws in the United States. In particular, most of the evidence relied on by CAS would not be admissible in U.S. courts because of the standards set in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), that prohibit expert testimony not in accord with generally accepted scientific standards.
Katz, Ronald S. and Luckinbill, Robert W.,
Can Track and Field’s Governing Body Ban Female Runners From Competing in the U.S. Because of High Testosterone Levels?,
61 Santa Clara L. Rev.
Available at: https://digitalcommons.law.scu.edu/lawreview/vol61/iss1/11