Image rights: Caster Semenya case raises some issues

By Athena Constantinou, managing director, APC Sports Consulting, Nicosia, Cyprus

By all accounts, the dismissal by the Court of Arbitration for Sport (CAS) of the claim by the  South African 800 metres Olympic, World and Commonwealth champion, Caster Semenya, to have the new IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development) (DSD) declared invalid on the grounds of discrimination, came as a surprise in a number of sporting circles.

See the CAS Media Release of 1 Mya 2019, which is reproduced on the GSLTR website and, in particular, the rationale behind the CAS Decision regarding the issue of discrimination.

In fact, Athletics South Africa has said that “it is reeling in shock” and that the CAS Decision “goes to lengths to justify” discrimination.

Be that as it may, in addition to any considerations on the legal merits of this Decision, which I note was a majority one, and on which I shall not comment nor am I in any position to do so; however, the case and its outcome does raise some issues and concerns regarding Semenya’s image rights and their future commercial exploitation.

Certainly, the outcome of the Decision does nothing for her reputation and brand as a sporting celebrity.

On the contrary, the Decision seems to suggest that her sporting achievements to date may have been obtained by taking unfair advantage of her naturally high testosterone levels, which give her muscle bulk and additional stamina over her fellow competitors.

In other words, it appears that, although competing as a female, she has the physiological attributes of a male competitor; however, no one is denying that she was born a woman, has been brought up as a woman and lives as a woman. This might imply and suggest by her fellow women competitors that, in some way, she is a cheat?

Such an implication is, of course, damaging to her reputation and standing as an athlete and, as already mentioned, may tarnish her valuable image and brand.

In representing the financial interests of athletes generally and particularly in relation to the legal protection, development and commercial exploitation of their image rights, this thorny issue of reputation needs careful and sensitive attention, on an individual case-by-case basis.

Also this issue is likely to crop up more in the future in the classification by sports bodies not only of DSD athletes but also in relation to transgender athletes who, whilst being born a male, have chosen to transition to being and competing as a female.

A positive public relations programme and damage-limitation exercise, therefore, needs to be put in place in such cases, as may be necessary and appropriate, in order, as far as possible, to rehabilitate such athletes in the eyes of the general as well as the sporting public. Quite a challenge and balancing act!

In any case, is this not a matter of human rights? And, in this connection, perhaps the sports governing bodies may do well to pay heed to the Olympic Charter which expressly lays down that the practice of sport is a human right!

Likewise, the Charter also condemns all forms of discrimination!

Athena Constantinou may be contacted by e-mail at ‘athena@apc-sport.com’