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Caster Semenya: The Legal And Ethical Issues That Should Concern Us All

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Early last year the International Association of Athletics Federations(IAAF) introduced regulations requiring South African 800m Olympic champion Caster Semenya – and other middle distance runners with differences of sex development – to lower their naturally high levels of testosterone.

In February 2019 Semenya’s legal team argued that the policy was invalid. But in May the Court of Arbitration for Sport ruled that discrimination in sport is legal provided it is justified.

The way in which the IAAF has gone about dealing with Semenya raises serious legal and ethical concerns. And Semenya isn’t the only athlete involved. This is an issue that goes beyond just the difference of sex development. It goes to the fundamental root of human dignity, of privacy of every athlete who participates at the World Championships.

There are ethical concerns about the way in which the research was conducted that led to the decision. The legal concerns revolve around serious fundamental rights concerns, in particular in the way a number of female athletes have been treated.

In a paper I wrote two years ago – “You can play as long as you don’t win: Legal perspectives on the regulations pertaining to the participation of women with hyperandrogenism in women’s athletics” – I explored the big ethical and legal problems I believe are involved in Semenya’s case, as well as those of dozens of other women.

My view is that some women are being singled out because they are different. If Semenya looked different, if she was a blonde bombshell or if she didn’t win, we wouldn’t be having this debate today.

My big concern is that if this ruling by the Court for Arbitration in Sport remains unchallenged, this way of thinking and behaving might filter into the International Olympic Committee, the overarching body that regulates sport. That, in turn, will affect all its affiliations. These include the national Olympic committees and international federations like the IAAF and Fifa and the national associations under them.

That’s fundamentally wrong.

The ethics question

The first problem lies in the way in which the World Anti-Doping Authority has behaved. The World Anti-Doping Authority and national anti-doping authorities – which operate parallel to the other sporting bodies – are supposed to be independent. The World Anti-Doping Authority should be a completely separate, independent body that checks on the sports federations to ensure they enforce anti-doping measures uniformly and in a correct manner.

In reality, this isn’t the case.

This is how it works. At an event like the World Athletic Championships, it will be responsible for conducting the anti-doping tests. It will set up its own anti-doping control stations; collect the samples.

As part of the process athletes who enter agreements to participate in World Athletic Championships will also give consent to the World Anti-Doping Authority to conduct these tests. Part of that consent is also that the agency will, in terms of the rules, keep these samples for up to 10 years. They can re-test later for substances but they can also conduct research on anti-doping matters.

That’s important.

What happened in practice was that in 2011 and 2013 the IAAF instructed athletes to give both urine and blood samples. The reason given was that they were developing what is called a biological passport. This is an athlete’s biological profile that’s developed over a period of time. A sudden anomaly could indicate that there’s a doping or some other issue.

The problem is that IAAF passed these samples onto its medical team, the medical commission, which conducted its own research to determine the hormone levels of the athletes.

The argument being forwarded by the IAAF is that this is about doping. But the World Anti-Doping Agency ruled that the regulations on hyper-androgenism or difference of sex development have nothing to do with anti-doping.

This raises the question: if biological samples that have been collected for one purpose by one entity are passed onto another entity to do research for which consent has not been given, is this a lawful use of that sample?

The basis of modern ethical biological research and medical treatment is the Declaration of Helsinki. Though not an internationally legally binding document, it’s nevertheless set the standard for a lot of countries, including South Africa, that have developed their own biomedical laws.

In South Korea – where the tests took place – the Helsinki Declaration led to the adoption of the Bioethics and Safety Act. This states that to conduct any form of biomedical research you need the informed consent of the individuals. But none of the athletes – and I have spoken to a number who have participated at these championships – have been informed these samples could be used on hormone research.

Lots of countries have similar rules. For example Monaco, where the IAAF is based, has a strong requirement that there must be proper, informed consent.

One thing all of these laws have in common is that the consent can be withdrawn at any stage and there should be no penalty for that. And it’s a criminal offence if one does not obtain the proper, informed consent.

This issue has been raised repeatedly with the IAAF throughout the process. But to no avail.

I’m still to see that there is a single form or indication that any athlete has been properly informed of the nature of the research conducted, who will conduct the research, what the possible consequences are, what it means for the athlete and how their identity is being protected in the process.

The IAAF has not been able to produce any of this. And the Court of Arbitration for Sport dismissed these arguments and considered all the evidence that had been collected in spite of the lack of informed consent.

Human rights

The second major issue relates to massive human rights concerns.

The rights I’m referring to are set out in the European Convention on Human Rights, in particular Articles 2 and 8.

Let me begin with Article 8 which I believe should have been applied and was in fact raised before the court. It provides that everyone has the right to respect for private and family life. In the case of Solomakhin v Ukraine, for example, the European Court of Human Rights ruled that any compulsory medical intervention, even if it was of a minor importance, constituted an interference with this right.

Effectively coercing a healthy athlete into taking hormone treatment is certainly a compulsory medical intervention. They can argue that she has the choice. But there is no choice.

For its part, Article 2 of the European Convention on Human Rights and Biomedicine provides that the interest of welfare of each human being takes precedence over the interest of society.

Even the IAAF’s constitution, in article 3, gives a commitment to human rights with ethical values, while the Olympic Charter is against any form of discrimination and is for the promotion of women, equality of men and women, sport for all.

These have all been laid bare as empty promises.

-Steve Cornelius; Professor of Private Law, University of Pretoria

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30 under 30

Applications Open for FORBES AFRICA 30 Under 30 class of 2020

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FORBES AFRICA is on the hunt for Africans under the age of 30, who are building brands, creating jobs and transforming the continent, to join our Under 30 community for 2020.


JOHANNESBURG, 07 January 2020: Attention entrepreneurs, creatives, sport stars and technology geeks — the 2020 FORBES AFRICA Under 30 nominations are now officially open.

The FORBES AFRICA 30 Under 30 list is the most-anticipated list of game-changers on the continent and this year, we are on the hunt for 30 of Africa’s brightest achievers under the age of 30 spanning these categories: Business, Technology, Creatives and Sport.

Each year, FORBES AFRICA looks for resilient self-starters, innovators, entrepreneurs and disruptors who have the acumen to stay the course in their chosen field, come what may.

Past honorees include Sho Madjozi, Bruce Diale, Karabo Poppy, Kwesta, Nomzamo Mbatha, Burna Boy, Nthabiseng Mosia, Busi Mkhumbuzi Pooe, Henrich Akomolafe, Davido, Yemi Alade, Vere Shaba, Nasty C and WizKid.

What’s different this year is that we have whittled down the list to just 30 finalists, making the competition stiff and the vetting process even more rigorous. 

Says FORBES AFRICA’s Managing Editor, Renuka Methil: “The start of a new decade means the unraveling of fresh talent on the African continent. I can’t wait to see the potential billionaires who will land up on our desks. Our coveted sixth annual Under 30 list will herald some of the decade’s biggest names in business and life.”

If you think you have what it takes to be on this year’s list or know an entrepreneur, creative, technology entrepreneur or sports star under 30 with a proven track-record on the continent – introduce them to FORBES AFRICA by applying or submitting your nomination.

NOMINATIONS AND APPLICATIONS CRITERIA:

Business and Technology categories

  1. Must be an entrepreneur/founder aged 29 or younger on 31 March 2020
  2. Should have a legitimate REGISTERED business on the continent
  3. Business/businesses should be two years or older
  4. Nominees must have risked own money and have a social impact
  5. Must be profit generating
  6. Must employ people in Africa
  7. All applications must be in English
  8. Should be available and prepared to participate in the Under 30 Meet-Up

Sports category

  1. Must be a sports person aged 29 or younger on 31 March 2020
  2. Must be representing an African team
  3. Should have a proven track record of no less than two years
  4. Should be making significant earnings
  5. Should have some endorsement deals
  6. Entrepreneurship and social impact is a plus
  7. All applications must be in English
  8. Should be available and prepared to participate in the Under 30 Meet-Up

Creatives category

  1. Must be a creative aged 29 or younger on 31 March 2020
  2. Must be from or based in Africa
  3. Should be making significant earnings
  4. Should have a proven creative record of no less than two years
  5. Must have social influence
  6. Entrepreneurship and social impact is a plus
  7. All applications must be in English
  8. Should be available and prepared to participate in the Under 30 Meet-Up

Your entry should include:

  • Country
  • Full Names
  • Company name/Team you are applying with
  • A short motivation on why you should be on the list
  • A short profile on self and company
  • Links to published material / news clippings about nominee
  • All social media handles
  • Contact information
  • High-res images of yourself

Applications and nominations must be sent via email to FORBES AFRICA journalist and curator of the list, Karen Mwendera, on [email protected]

Nominations close on 3 February 2020.

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The Springboks And The Cup Of Good Hope

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After their epic win beating England at the 2019 Rugby World Cup in Japan on November 2, the Springboks returned home to South Africa, undertaking a nation-wide tour, in an open-top bus, holding high the Webb Ellis Cup. In this image, in the township of Soweto, they pass the iconic Vilakazi Street with throngs of screaming, cheering residents and Springbok fans lining the street. The sport united the racially-divided country. For the third time in history, the South African national rugby team was crowned world champions.

Image by Motlabana Monnakgotla

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Déjà vu: South Africa Back to Winning

Our Publisher reflects on the recent Springbok victory in Yokohoma, Japan

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Rugby World Cup 2019, Final: England v South Africa Mtach viewing at Nelson Mandela Square

By Rakesh Wahi, Publisher
FORBES AFRICA

Rugby is as foreign to me as cricket is to the average American. However, having lived in South Africa for 15 years, there is no way to avoid being pulled into the sport. November 2, 2019, is therefore a date that will be celebrated in South Africa’s sporting posterity. In many ways, it’s déjà vu for South Africans; at a pivotal time in history, on June 24, 1995, the Springboks beat the All Blacks (the national rugby team of New Zealand) in the final of the World Cup. The game united a racially-divided country coming out of apartheid and at the forefront of this victory was none other than President Nelson Mandela or our beloved Madiba. In a very symbolic coincidence, 24 years later, history repeated itself.

South Africans watched with pride as Siya Kolisi lifted the gold trophy in Yokohama, Japan, as had Francois Pienaar done so 24 years ago in Johannesburg. My mind immediately reflected on this extremely opportune event in South Africa’s history.

The last decade has not been easy; the country has slipped into economic doldrums from which there seems to be no clear path ahead. The political transition from the previously corrupt regime has not been easy and it has been disheartening to see a rapid deterioration in the economic condition of the country. The sad reality is that there literally seems to be no apparent light at the end of the tunnel; with blackouts and load-shedding, a currency that is amongst the most volatile in the world, rising unemployment and rising crime amongst many other issues facing the country.

Rakesh Wahi, Publisher Forbes Africa

Something needed to change. There was a need for an event to change this despondent state of mind and the South African rugby team seems to have given a glimmer of hope that could not have come at a more opportune time. As South African flags were flying all over the world on November 2, something clicked to say that there is hope ahead and if people come together under a common mission, they can be the change that they want to see.

Isn’t life all about hope? Nothing defies gravity and just goes up; Newton taught us that everything that goes up will come down. Vicissitudes are a part of life and the true character of people, society or a nation is tested on how they navigate past these curve balls that make us despair. As we head into 2020, it is my sincere prayer that we see a new dawn and a better future in South Africa with renewed vigor and vitality.

Talking about sports and sportsmen, there is another important lesson that we need to take away. Having been a sportsman all my life, I have had a belief that people who have played team sports like cricket, rugby, soccer, hockey etc make great team players and leaders. However, other sports like golf, diving and squash teach you focus. In all cases, the greatest attribute of all is how to reset your mind after adversity. While most of us moved on after amateur sports to find our place in the world, the real sportspeople to watch and learn from are professionals. It is their grit and determination.

My own belief is that one must learn how to detach from a rear view mirror. You cannot ignore what is behind you because that is your history; you must learn from it. Our experiences are unique and so is our history. It must be our greatest teacher. However, that’s where it must end. As humans, we must learn to break the proverbial rear view mirror and stop worrying about the past. You cannot change what is behind you but you can influence and change what is yet to come.

I had the good fortune of playing golf with Chester Williams (former rugby player who was the first person of color to play for the Springboks in the historic win in 1995 and sadly passed away in September 2019) more than once at the SuperSport Celebrity Golf Shootout.

Chester played his golf fearlessly; perhaps the way he led his life. He would drive the ball 300 meters and on occasion went into the woods or in deep rough. Psychologically, as golfers know, this sets you back just looking at a bad lie, an embedded or unplayable ball or a dropped shot in a hazard. For a seasoned golfer, it is not the shot that you have hit but the one that you are about to hit. Chester has a repertoire of recovery shots and always seemed to be in the game even after some wayward moments. There is a profound lesson in all of this. You have to blank your mind from the negativity or sometimes helplessness and bring a can do and positive frame of reference back into your game (and life). Hit that recovery shot well and get back in the game; that’s what champions do.

We need to now focus our attention on the next shot and try and change the future than stay in the past.

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