- Jagyansh Kumar (Second Year Law Student at National Law Institute University, Bhopal)
Introduction
“The law is made to be accessible to everyone, but at the gate, the man is denied entry by a gatekeeper.” This quote by Kafka reflects the theme of intermingled bureaucratic procedures and showcases the common man’s helplessness and how the legal system treats him. It symbolizes that justice is out of the reach of the common man. The current conundrum of Vinesh Phogat’s struggle for the silver medal before the Court of Arbitration for Sport (“CAS”) brings Kafka’s satire on the obtuse procedure of law back to life. The award passed by CAS, denying her the medal invites several questions and due analysis of the award. Moreover, this also presents an opportunity to discuss the arbitrability of sports disputes. In this blog, the author attempts to analyse the award passed by the CAS. It will also delve into Lex Sportiva and its role in arbitration. The gender dynamics and concept of fair play will also be discussed. Thereafter, policy suggestions will be given for an equity-based framework followed by a conclusion.
The CAS Award: A Critical Analysis
The dispute between Vinesh Phogat and CAS arose due to the former exceeding the weight limit under which she had participated in earlier rounds. Pursuant to Article 11 of the United World Wrestling International Wrestling Rules 2023, she was disqualified from the competition, which resulted in the present appeal. The rule follows a strict “pacta sunt servanda” approach. This is evident as she was denied participation solely on account of being 100g over the prescribed limit. In her appeal, she contended not the invalidity or overruling of the rules, but to interpret the rules in view of equity, justice and good conscience.
She suggested that the terms “and” should be construed as “or”, but they were of no avail. Such interpretation although contributes to maintaining the integrity of the sport and creating a deterrent effect on future cases, reflects overly rigid and lacking compassion, especially considering that such a small discrepancy is unlikely to provide her with any competitive advantage. Applying a rule so strictly when the breach is so minimal does not align with the principles of fairness and good conscience. The rule might be interpreted more flexibly to account for human factors, especially in female wrestlers due to bodily changes during the menstrual period. The point of menstrual imbalance was also raised before the sole arbitrator as Vinesh Phogat was in her pre-menstrual phase which normally results in fluid retention. Menstruation, which can lead to water retention and bloating, is a natural, uncontrollable process that can temporarily alter body weight. It was argued that the biological differences between men and women must be accommodated while identifying such eligibility. However, the arbitrator denied such reasonable distinguishment. This reflects the ignorance of the athlete’s need to manage her body’s natural processes and imposes a one-size-fits-all standard that may not be equitable for women athletes.
In the Tokyo Olympics, Laurel Hubbard, a transgender woman, was allowed to compete in women’s weightlifting, marking a significant step towards inclusion and accommodation for athletes whose bodies differ from the typical male or female physiology. This parallel highlights a contradiction: while transgender athletes are allowed to compete under the category of their identified gender, thereby recognizing gender and physiological diversity, the denial of Vinesh Phogat’s claim fails to acknowledge the biological variations within cisgender female athletes. If sports rules are flexible enough to include gender identity considerations, they should also be flexible enough to accommodate other inherent biological differences, such as the impact of menstruation.
Lex Sportiva’s Role in Arbitration and Failure
Lex Sportiva primarily refers to the collection of rules and principles established through decisions made by the Court of Arbitration for Sport, dealing with disputes of international sports law. It can be perceived as a legal fiction because it does not derive its authority from a national legal system or an international treaty. However, in practice, it operates as a specialized legal order for the global sports community. The Mercury Bay Case played an important role in the development of Lex Sportiva and the arbitrability of sports disputes by showing that traditional courts may not be the ideal forum for resolving sports disputes, particularly those involving nuanced interpretations of sporting rules and values like fairness, equity and sportsmanship. This stance was highlighted by Justice Hancock as a dissenting opinion in the judgement. Much like in the Mercury Bay case, where the courts focused solely on the legal interpretation of the Deed of Gift and ignored sportsmanship considerations, the CAS decision in Phogat’s case also displayed a narrow focus on rule compliance. This indicates that, despite the evolution of Lex Sportiva, there are still scenarios where the emphasis on technicalities overrides broader considerations of fairness and equity, especially in cases involving gender-specific physiological conditions.
Gender Dynamics and the Concept of Fair Play
The principles of equity and fairness have long been the principles upon which every court delivers its judgement. Lord Denning has remarked that “Equity is not a rigid system. It is, as it has always been, a flexible system which seeks to achieve fairness and justice according to the specific circumstances of the case.” This quote reflects the importance of upholding such principles and captures the essence of how equity operates to achieve justice beyond the constraints of rigid legal principles. However, the award given in Vinesh Phogat’s case lies in clear derogation of such principles. The strict application of rules with no respect towards such guiding principles marks the failure of equity jurisprudence in sports disputes. A reference can be made to the Canadian Ski Jumpers case that highlighted the conflict between national anti-discrimination laws and the authority of international sports bodies like the IOC. Although the courts acknowledged the gender-based discrimination, they ruled against the athletes due to legal technicalities. This parallels Vinesh Phogat’s case, where strict rule enforcement overlooked fairness, revealing the need for gender-sensitive policies and greater alignment between fairness and legal interpretations in sports.
However, this poses a question: How does arbitration come into play in such disputes? Arbitration, through institutions like the CAS, aims to provide a balance between strict adherence to rules and broader principles of equity. The fundamental purpose of arbitration is to resolve disputes while considering not only the letter of the law but also the spirit of the law. However, in Vinesh Phogat’s case, the CAS decision highlights a divergence from these principles. By focusing solely on the technical breach of weight regulations, the CAS disregarded the principle of fairness, which would have necessitated taking into account factors such as menstrual-related weight fluctuations in female athletes. While sports governing bodies are becoming more inclusive by recognizing gender identity, they fail to acknowledge other gender-specific variations, such as the impact of menstruation on performance and weight in women athletes. Arbitration bodies like CAS need to incorporate these considerations to ensure a fair and equitable resolution of disputes.
Policy Suggestions
While arbitration aims to balance rule enforcement with fairness, the rigidity observed in Vinesh Phogat’s case suggests a need for further evolution in Lex Sportiva. It is essential for arbitration bodies to recognize gender-specific factors, ensuring that women athletes are not disproportionately affected by rules designed without considering their unique physiological attributes. This would align arbitration decisions more closely with the principles of equity and fairness, promoting a more inclusive and just sporting environment. Similar to the 2-kg weight tolerance provided in other international sporting events, the International Olympic Committee can also bring a weight concession for female athletes. The rule of assigning the last rank without rank should also be done away with as it is in clear contrast with rules of fairness. The toil behind reaching the finals should not be ignored on mere account of 100 grams of excess weight as it casts doubt and shame on the athlete’s hard work. There should be introduction of compliance metrics that consider gender-specific physiological factors, such as permissible weight variations for women athletes during their menstrual cycle. These metrics should be developed in consultation with sports scientists and medical professionals to ensure fairness and inclusivity. A special panel comprising of an arbitrator, and experts in gender studies and sports medicine can be formed to decide sensitive issues of gender equality and sports disputes.
Conclusion
Vinesh Phogat’s struggle before the CAS shines a glaring light on the complexities and contradictions inherent in the intersection of sports, law, and gender equality. Kafka’s haunting reflection on accessibility in the legal realm finds resonance in Vinesh’s experience, where bureaucratic rigidity overshadows the very principles of equity and fairness that should govern sports. Her disqualification for exceeding the weight limit by a mere 100 grams exemplifies a system that, while striving for integrity, often neglects the human elements at play especially the physiological realities faced by female athletes. From the analysis of the award and governing law, it becomes clear that institutions like CAS have an opportunity and a responsibility to evolve. The principles of Lex Sportiva must extend beyond strict rule enforcement to embrace a more equitable approach that considers the unique challenges faced by female athletes. The proposed policy changes, including the introduction of gender-sensitive guidelines and the formation of specialized panels, offer a pathway to a more just framework in which the spirit of the law can thrive alongside its letter.
