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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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Staying Flexible: With The Postponement Of The Tokyo 2020 Olympic Games, This Gymnast’s Goal Hasn’t Changed

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The 19-year-old South African gymnast was all set for the Tokyo 2020 Olympic Games in July, for which she had qualified. With the event’s postponement, her goal hasn’t changed, she says, only the timeline has. 

At just 19 years old, Caitlin Rooskrantz is South Africa’s gold medal-winning international gymnast.

From Florida, a small suburb in Roodepoort in Johannesburg, and currently in lockdown in the country, if the Covid-19 pandemic hadn’t happened, Rooskrantz would have now been intensely training for the Tokyo 2020 Olympic Games in July, for which she had qualified.

 “I qualified for the 2020 Games being the first woman in South Africa’s gymnastics history to have achieved an outright qualification at the world championships,” she told an audience of female powerhouses at the 2020 FORBES WOMAN AFRICA Leading Women Summit in Durban on March 6.

Even as a child, when she first took to gymnastics, she had been set on making it to the Olympics one day.   

The news of the Games’ postponement has been quite upsetting, but says Rooskrantz: “It is in the best interest of all the athletes because our health comes first, always!” Her favorite quote, in particular, comforts her at this time: “The goal hasn’t changed, just the timeline has, keep going!”

Her training has continued through the lockdown and it has kept her afternoons busy.

“We have set programs to keep up our strength, fitness and flexibility. To try and keep up my mental game, I watch videos daily of any past successful competitions. I analyse my training videos and try to mentally put myself in the video,” she says.

2019 had been “a spectacular year” for her.

“I managed to pass matric well with two distinctions and university entrance while training for my childhood dream. Not only did I bag South Africa’s first-ever gold medal on uneven bars on an international stage, but at just 18 years old, I made history,” she said at the summit, to an applauding audience. 

In an interview with FORBES AFRICA, Rooskrantz reflects on the days when it all started, as a young child, when she was a bundle of energy and her parents knew early on that they had to redirect that energy to sport.

A teenager now, but if Rooskrantz has already seen much success, she has also experienced tragedy and hardship.

When she was just eight, her father, from whom she inherited her deep love for sport, passed away. He took his own life.

She had been training at a gymnastics center a few kilometers from home, but that had to stop because of the tragedy and transportation issues. But her former trainer took it upon herself to regularly drive her there.

“Everything started escalating and things took a turn. I dropped all my school sports because I didn’t have any time for them; I had to pick one, especially with the high demand of gym,” she says.

Rooskrantz was placed on a high-performance program and soon started traveling; training more than four hours a day six days a week at the age of 11. This was the intermediate level of her tumbling (a gymnastic feat including the execution of acrobatic feats) profession and the best was yet to come.

Her first overseas trip was to Australia for a training camp in 2012. A few months later, Rooskrantz competed in Serbia for her first international competition. It might have not been the best competition for her, but it was great exposure.

In 2014, South Africa hosted the African gymnastics championships with Rooskrantz the youngest member of the junior team.

“I did well, I don’t remember falling and I made it to the bar finals and that was the time I started to realize my potential on the asymmetric bar. I left that with a big boost to my confidence.” 

The young student was progressing quickly, reaching new heights.

On her last year as a junior in the 2016 Junior Commonwealth Games in Namibia, she made three apparatus finals; asymmetric bar, vault and the balancing beam.

An injury kept her away from the Commonwealth Games in Australia in 2018, when she went in for surgery and was off the apparatus for months.

“I was in bed after my operation but back at gym a week after, still on crutches, working on my upper body. In a sport like gymnastics, when you are that injured, it is critical to do something because you lose strength, flexibility and fitness. I was also working on my mental state,” she says of those hard days. Her coach told her the surgery was either going to make or break her career. She was determined to return stronger. She did, and how.

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All Home And No Play: Not Since World War II Has The Global Sports Industry Faced Such A Crippling Crisis

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Not since World War II has the global sports industry faced such a crippling crisis, which is likely to cost billions of dollars in lost revenue and could yet see the permanent extinction of some teams and competitions.

The coronavirus pandemic that has spread across the world has the potential to change the face of sports forever, and Africa will not be spared, with one administrator suggesting the outbreak could set their game back 20 years.

The severity of the impact will be determined by how long it takes for society to live alongside the pandemic, but even if that were to happen in June, there has already been significant damage done.

Confederation of African Football (CAF) President Ahmad Ahmad has tried to provide a positive outlook, but knows the complexity of the situation on the continent is dire.

None of the 54 domestic leagues in Africa was still running in May, as Burundi was the last to close up shop the month before, but just when cross-border competitions such as the lucrative CAF Champions League, and qualifiers for the Africa Cup of Nations and World Cup, can resume, is anybody’s guess given travel restrictions are likely to be in place for some time, and vary from country to country.

“CAF is already focused on the conditions for relaunching our competitions and our events,” Ahmad said in comments supplied to FORBES AFRICA.

“Never has a crisis of such great magnitude crossed the world, never has world sport decreed so many postponements of its programs and never has such a tsunami struck the most basic sporting practice.

“We are now condemned to rebuild the basics, or at least to reinforce them, to energize them so that at the time of recovery, we will be the best structured and best disposed to conquer or re-conquer, the dry territories of sport and football.

It is Ahmad’s way of saying that any thought of returning to pre-coronavirus levels of engagement and sponsorship are fanciful in the short-term, or perhaps even medium-term.

His suggestion of having to “rebuild the basics” is a key admission and will be the same for many sports that face a sponsorship vacuum from some of the world’s leading brands.

When airlines, major sponsors of African sport, have been laying off staff and cut their schedules to next to nothing, can they justify pumping millions of dollars into sport?

The same for car manufactures, loss-making banks and oil companies hit by the drop in the price of crude.

The health conditions to allow play for many sports in Africa may return this year, but the question is whether there will be the financial support vital to being able to play the game.

Selwyn Nathan, commissioner of South Africa’s Sunshine Tour and a leading expert on global golf, suggests the pandemic may return the sport to the year 2000 in terms of financial capabilities.

“It could be like starting a business all over again, you can’t have an attitude that people [sponsors] will just come back,” Nathan says.

“It’s not something unique to Africa, or sport anywhere in the world, but we are going to have to change the way we do things.

“Players will have to accept that they are not going to be playing for the same money, and organizers must accept they will have to ask for less [money] and possibly do more just to retain sponsors.

“It is going to fundamentally change the way we operate and we have to adapt to that.”

Winners in some co-sanctioned Sunshine Tour and European Tour golf events can earn upwards of $1.5-million per tournament, but Nathan believes those numbers will be fanciful for the foreseeable future and it is likely to be a fraction of that.

The pandemic could be the death knell for ailing Super Rugby, the southern hemisphere club championship that has been hanging on for dear life, as it was, due to dwindling interest and its format that sees players criss-cross the globe between Argentina, Australia, South Africa, New Zealand and Japan.

In the case of world champion Springboks, that could actually work in their favor and see them looking north to Europe for club and country competitions, where the TV revenues are greater and load on players less, according to respected Stormers coach John Dobson.

“I believe there will be a restructuring of the game and that could be at Super Rugby’s expense,” Dobson says. “There could be stronger focus on domestic competitions with less travel and more tailored for television, because ultimately, that is where you get the revenue to run the game.

“It’s critical you have a product that is appealing to rugby fans, and after this period, maybe that will rather involve South African teams playing in the [European] Heineken Cup. I don’t know, but something has to change.”

Nicolas Pompigne-Mognard, who is chairman of the APO Group, a communication and business consultancy in Africa, says he has seen first-hand the toll the virus has taken on sports federations almost across the board.

“I think, unfortunately, it will have a devastating effect for many. First of all, athletes cannot train properly and when you are at the level of international competition, just a few percentage points off can compromise your body,” he says.

“Added to that, there is no competition and the longer this goes on, the longer it will take for athletes to return to peak performances, so in the near term, you will have a poorer product for television and sponsors.”

Pompigne-Mognard says cross-border competitions are vital in Africa and it is in these multi-national tournaments where many federations across different sports make most of their revenue.

“Each African nation is unlikely to return to full health at the same time, so, for example, the Basketball Africa League, which involves 12 teams from across the continent has to be put on hold until travel is possible.

“It will go ahead, but the question is when and what are the financial consequences of this? It is something that we cannot quantify now, so we live in this state of uncertainty and that is not good for anybody, sport or business.”

The postponement of the Tokyo Olympic Games to 2021 has brought much relief for many athletes, who had seen their training regimes brought to a halt, or at best conducted in the confines of their own home.

Olympic gold medalist swimmer Chad le Clos had had to make do with what he has at home while in lockdown in South Africa, one of thousands of elite athletes from across Africa in similar situations.

“It is what it is and I am happy with the decision (to move the Olympics) that has been made,” Le Clos says. “I have a small pool at home, so I attach a cord that allows me to stay stationary as I swim.”

 “We cannot afford to take a break, even in lockdown. You cannot let yourself lose the months and months of work that you have put into your body.

“I don’t know where or when I will compete again, but you have to stay positive. You have to hope for the best, that is all we can do.”

-Nick Said

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Ronaldo’s $105 Million Year Tops Messi And Crowns Him Soccer’s First Billion-Dollar Man

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Add another zero to soccer’s most expensive rivalry.

Cristiano Ronaldo earned $105 million before taxes and fees in the past year, landing him at No. 4 on the 2020 Forbes Celebrity 100, one spot above his top rival in the sport, Lionel Messi, and making him the first soccer player in history to earn $1 billion.  

The 35-year-old striker is only the third athlete to hit mark while still playing following Tiger Woods, who did it in 2009 on the back of his long term endorsement deal with Nike NKE, and Floyd Mayweather in 2017, who’s made most of his income from a cut of pay-per-view sales for his boxing matches. 

Ronaldo, the first to do it in a team sport, has made $650 million during his 17 years on the pitch, and is expected to reach $765 million in career salary after his current contract ends in June 2022. Messi, who began playing at the senior level three years after Ronaldo, has earned a total of $605 million in salary since 2005. The only team athlete to even come within striking distance of those figures was former New York Yankees slugger Alex Rodriguez, who retired in 2016 after 22 years in MLB having earned $450 million in salary. Not even soccer legend David Beckham came close, ending his career with total earnings of $500 million, half of which came from off-pitch endorsements. 

“Cristiano Ronaldo is one of the greatest players of all time, in the world’s most popular sport, in an era when football has never been so rich,” said Sporting Intelligence’s Nick Harris, whose Global Sports Salaries Survey ranks teams worldwide based on total salary expense. “He’s box office.”

Ronaldo and Messi’s head-to-heads heated up in Spain’s La Liga in 2009, where Ronaldo played for Real Madrid and Messi for Barcelona. Their faceoffs on the pitch ignited a nine-year battle for bragging rights as the best — and top-paid — in the sport, a highly personal tit-for-tat that had them re-negotiating contracts in lockstep and monopolizing the game’s highlight reel. 

The rivalry was as entertaining as it was profitable, coming just as clubs around the world were seeing soaring attendance and an influx of television money. The two were perfectly matched for battle, on and off the pitch: Ronaldo perfected a shirtless, stylized showmanship while Messi played the quiet game, always a tad unkempt and as prolific a scorer as he was a wingman. Ronaldo strutted after every goal. Messi was a master at thanking his teammates. 

Both backed it up. Barcelona won the La Liga title six times and two Champions Leagues trophies with Messi on the squad. Real Madrid won the Spanish title twice and the Champions League four times with Ronaldo. During their years in the league, each player nabbed four Ballon d’Ors (soccer’s MVP) and their El Classicos, the nickname for their clubs fierce clashes, were record-setting television events worldwide. 

But when it came to leveraging celebrity, it has been no contest. Guided by Jorge Mendes of Gestifute, one of the world’s most powerful agents, Ronaldo has amassed an ever-growing following of fans and consumers drawn to his poster-boy good looks, trend-setting hair styles, impeccable fashion sense and, lately, his softer side as a family man whose toddlers pop up on his social media posts. In January he became the first person with 200 million followers on Instagram, part of a social media army of 427 million across Facebook, Instagram and Twitter that makes him the most popular athlete on the planet. 

Nike pays him upwards of $20 million annually and signed him to a lifetime deal in 2016, making him just the third athlete after Michael Jordan and LeBron James hitched to the Swoosh for eternity. In May, the footwear maker announced the release of a 10-year anniversary edition of his first signature Mercurial Superfly and a child’s version to celebrate his son’s 10th birthday, complete with his famous celebration stance, signature and logo. Pitches for Clear shampoo, Herbalife HLF, and pharmaceutical maker Abbott help raise his endorsement tally to $45 million.

Ronaldo, Inc. even has a trademark — CR7, a mix of his initials and jersey number — part of a lifestyle brand that Forbes estimates accounts for a quarter of his annual endorsement income, including branded underwear that debuted in 2013 that was followed by a line of shoes, fragrances and denim wear. He partnered with Pestana Hotel Group in 2015 to open his first property a year later in his hometown of Funchal, Madeira, right above Museu CR7, a shrine for his trophies and a retail outlet for his merchandise. He’s since added CR7 clubs with Crunch Fitness, posts workout routines on YouTube and has attached his name to a social media influencing degree offered by Italian online university eCampus.

And the rivalry is far from done.

Ronaldo’s 2020 earnings include a salary of $60 million, slightly less than last year due to a 30% pay cut he agreed to take this April as a result of the pandemic. Messi, who earned $104 million in the past year after taking a 70% pay cut while coronavirus sidelined play, is poised to surpass $1 billion in all-time earnings as soon as next year, before his current Barca contract ends.

Christina Settimi, Forbes Staff, SportsMoney

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