Davies, Chris --- "Women, Sport and the Law in the Twenty-First Century" [2023] JCULawRw 6; (2023) 29 James Cook University Law Review 93

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Women, Sport and the Law in the Twenty-First Century

Chris Davies^[1]*

Abstract

A feature of sport in Australia has been the rise of women’s sport, particularly in regard to leagues in team sports, namely netball, cricket, basketball and Australian football. Rugby union’s appearance at the 2016 Rio Olympic Games in its sevens format included women while the success of soccer’s 2023 Women’s World Cup highlights the rise of women in that sport. A legal issue with the Australian Football League Women’s League (‘AFLW’) is the use of a draft system to spread the available playing talent, and it is the author’s view that a draft system, while a restraint on a player’s freedom of employment is a reasonable, and therefore a legal, one. While issues of labour market controls are not restricted to women’s sport, issues of the participation of pregnant women and intersex/transgender athletes are unique to women’s sport. The present legal position is that it is discriminatory to exclude pregnant women from participation in sport, and while the issue of intersex/transgender athletes from women’s sport remains a complex one, regulations limiting their participation have been upheld by the Court of Arbitration for Sport (CAS). While World Aquatics has implemented a policy to effectively prohibit intersex/transgender swimmers from competing in elite women’s events, it is presently looking at how an open division can be included.

I Introduction

The success of the recent women’s football World Cup and the level of support for the Australian team, including record television ratings, is an indication of the potential for women’s sport. However, it is not alone as other sports have seen a rise in interest with leagues in team sports, such as netball, cricket, basketball and Australian football being formed over, in particular, the last decade. Rugby union’s re-appearance at the 2016 Rio Olympic Games in its sevens format included women, with Australia’s gold medal win giving the team a high profile on the world sevens circuit. The Australian Football League Women’s League (‘AFLW’) has been a success while in cricket the Women’s Big Bash League continues to increase its profile, with the success of the 2020 Women’s T20 World Cup also enhancing its profile.

There are a number of legal aspects arising from the formation of these leagues, the AFLW, for instance, relies on a draft system to spread the available playing talent, as does the men’s competition, the Australian Football League (‘AFL’), while maximum wage restraints have been implemented by some of these leagues. The fact that these leagues are now professional, or at least, semi-professional, raises potential contract issues, such as Cricket Australia’s (‘CA’) pregnancy disclosure clause, with the issue of the participation of pregnant women being a potential legal one for all sports, as is the participation of intersex and transgender athletes.

This paper will therefore examine the legal aspects of these women’s leagues, as well as individual sports, in regard to the application of contract law, restraint of trade, torts, discrimination and doping. It will highlight the interaction of the law with these sports, both actual and potential, with the underlying themes being whether there is anything unique in regard to this application of the law to women’s sport, and what the cases have contributed to sports law overall.

II Professional Women’s Leagues

A Contract Issues

An earlier contract that CA had with its women players included a clause that required them to inform CA if they were pregnant. This raised the issue of whether this was discriminatory, or merely involved an employer needing to know about what is, essentially, a medical condition that could have potential workplace health and safety issues. Thus, while the legislation is clear that discrimination based on pregnancy is unlawful, there is a question as to whether it is discriminatory to merely ask a player if they are pregnant. Considering it is not a question the male players need to be asked, it arguably is.

It is suggested therefore that CA, like any governing body, should have first engaged in a full consultation process with the players. A possible compromise situation for all sports is to have a confidentiality clause that allows any pregnant player to initially seek medical advice from their own doctor, with a doctor from a governing body, such as CA, only becoming involved when it becomes necessary for the governing body to be made aware of it, that is, when it may have become a genuine workplace health and safety issue.

It should be noted that CA, or its earlier equivalent, the Australian Cricket Board, have had to deal with young male fast bowlers with potentially career-ending back injuries. One example is present-day captain, Pat Cummins, who made his test debut in 2011 at the age of 18, with an historical example being Dennis Lillee who made his debut in 1970 and went on to become one of Australia’s greatest-ever bowlers. On both occasions the player was able to make a recovery, with one of the key factors being that the governing body was fully aware of the situation and was therefore able to work with the player in regard to matters such as workloads. Thus, dealing with player medical conditions does not need to be an employer against employee situation and, in relation to pregnant players, it is suggested the best solution is for the players to work with governing bodies such as CA. It also should be noted that the clause was subsequently removed from the CA’s women’s contracts.

B The Restraint of Trade Doctrine

Any sporting governing body that implements a labour market control will be subject to the restraint of trade doctrine. This requires the use of the Nordenfelt test, developed in the late nineteenth century in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company Ltd,^[1] which requires the court to ask:

Is the contract or are the regulations reasonably necessary to protect the interests of the party in whose favour the contract or regulations are made? That is:

1. Is the contract or are the regulations an unreasonable restraint on the party who is affected by them?

2. Is it unreasonably injurious to the public.^[2]

The restraint of trade doctrine is therefore a part of contract law, though it is arguably a distinct area of law in its own right. The Nordenfelt test has been applied to sports cases that have reached the courts regarding the control of payments to players, and player movement between clubs. In its application to sport, the Nordenfelt test involves examining the protection of the league’s interests, known as protectable interests, and asking the question as to whether it is reasonable on the players, and also not contrary to the public interest.^[3] In regard to women’s leagues the labour market controls that have so far been utilised have been maximum wage restraints and draft systems.

A maximum wage restraint places a limit on the amount each individual player, no matter how good, can be paid. This system was first introduced into English football in 1901, with the maximum amount any player at the time could be paid being £4, the equivalent of about $10.00. It lasted in English soccer until 1961 when it was dropped by the English Football Association after the players threatened to go on strike if it was retained. Maximum wages, however, did continue in the Northern Ireland Football League until the 1980s when a player claimed it was a restraint on freedom to practice his trade. In the subsequent case of Johnston v Cliftonville Football and Athletic Club Ltd,^[4] it was held that the maximum wage was an unreasonable restraint of trade as it restricted the amount of money the player could earn, and the regulations were declared invalid.^[5]

However, it is the author’s view that a maximum wage restraint is an example of a labour market control that is reasonable in a certain situation, namely, a fledgling league. For example, it was probably reasonable when first introduced into English league football over a hundred years ago when the clubs’ only real income was from fickle gate receipts in what was then still a fledgling league. However, it was most definitely unreasonable by 1961 when other revenue streams, such as television rights, were available in what was by then a well-established league.

This raises the question as to whether the use of a maximum wage restraint in the women’s leagues, such as the Women’s National Basketball Association (‘WNBA’) in the United States, and the former Trans-Tasman Netball Competition, constitutes an unreasonable restraint of trade. It, firstly, should be pointed out that the players in these leagues agreed to such a restraint, and it is suggested that in fledgling leagues such as these it is reasonable on the players as it can help to ensure the league remains financially viable. Looking at it from a player’s perspective, there is not much benefit in being a well-paid player if the competition folds because it is not financially sustainable. It is suggested therefore that imposing a maximum wage is a reasonable restraint in new women’s leagues, as it is in any fledgling league, particularly if it is combined with a guaranteed minimum wage and the league has a longer-term goal of reverting to a less restrictive salary cap.^[6]

A feature of the AFLW is that it involves the use of a draft system where players wishing to enter the competition are selected by the clubs in the reverse order in which those clubs finished the previous season’s competition. That is, the team finishing last has first selection, the team finishing second last gets second selection etc until the winner of the competition has a selection. The process is then repeated for a second and subsequent rounds. Players already in the competition can be traded for other players, or for draft selections in the national draft. Rugby league also implemented a draft system in 1990, though it was successfully challenged by the players in Adamson v New South Wales Rugby League.^[7]

In that case the Full Court of the Federal Court held that the rules of the draft were more restrictive than was necessary to help the league obtain its stated objective of a more even competition.^[8] The Court, however, did state that a set of draft rules that was less restrictive on the players may be reasonable.^[9] The author has suggested that the AFL draft can be distinguished from the rugby league draft successfully challenged in Adamson^[10] due to greater bargaining power for the players, which now includes the introduction of free agency in 2012 which allows players to leave their club without having to go through the trade process after eight years’ service.

In the AFLW, the draft for the inaugural 2017 season could not be conducted in the traditional way, but instead used a lottery style system to ensure that a few clubs could not sign all the best players. However, a traditional style draft has taken place prior to the start of subsequent seasons and has included similar trade provisions to the AFL draft that allowed players to seek a trade to another club in exchange for draft selections and/or other players. It is suggested that once the AFLW is in operation for eight years it will need to incorporate free agency into its draft system, as it is in the men’s AFL, because it unquestionably helps to improve its reasonableness.^[11]

C Gender Issues and Equal Pay Issues

While the question of equal pay for women in sport raised the issue of gender equality, it should also be kept in mind that it also involves the application of market forces. Even in men’s sports there are varying levels of spectator support for different sports which, in turn, affects the amount of money generated, and therefore player’s income, in that sport. Within a particular sport there are, at present, usually differing levels of support between men’s and women’s competition which can determine differences in pay based purely on market forces.

Tennis, however, is an example of a sport that has equal prizemoney for men and women in what is a joint tour which means gender equality is essential. When equal pay was introduced there were suggestions it actually favoured the women as they only played the best of three sets matches while for the men it was often five. The logical solution to this perceived problem was to reduce the men’s matches to the best of three which is now the norm in all tournaments, except in the four Grand Slam events. Golf meanwhile has always had a separate women’s tour which raises its own prizemoney. Thus, golf is one sport where the income earned by players is based purely on market forces.

Compared to tennis and golf, women’s leagues in team sports are relatively recent. While women have been representing Australia in cricket since the 19^th century, the players were, until relatively recently, purely amateurs. However, the introduction of a T20 Big Bash League Women tournament has provided an opportunity for players to earn enough to be fully professional. The success of this tournament can be gauged by the fact that it now has its own broadcasting rights. The introduction of an Indian Women’s Premier League meanwhile has brought in a new era for women’s cricket since the top players are now earning over $500 000 for the six-week tournament.^[12] In rugby league, all games in the National Rugby League Women’s competition are now all shown on free to air television, a sign of the growing interest in that competition which will lead to increases in salaries.

Women’s football leagues have been around for many decades in Europe with Australia now having its own Women’s A-League. While these leagues are already professional, there is no doubt that interest will only grow after the huge success of the recent World Cup which became the first women’s event to break even after generating $888m in revenue.^[13] The broadcasting rights were relatively miniscule as, locally, the Seven Network paid only a reported $5m for the Australian rights.^[14] This resulted in a financial bonanza for the network due to the record-breaking ratings with the 7m viewers for the Australia versus England semi-final being the highest ranked Australian programme of all time. There is no doubt that the broadcasting rights will be much greater for the next World Cup. However, at present, the total prizemoney awarded to the women’s World Cup is only a quarter of that awarded to the men, being $110m as against $440m.^[15] Thus, there is no doubt the quest for parity in this prizemoney will be an on-going one until it is achieved.

The success of the women’s football World Cup is already having an impact on other women’s sports, with Rugby Australia recently receiving a letter of complaint from a number of its players concerning the way they are presently being treated in the 15-a-side version of the game compared to the men. This is in comparison with the Matildas who, since 2019, have had an agreement whereby they have the same treatment as the men’s Socceroos side. While rugby union was at one time ahead of the other football codes with its involvement of women in its sevens programme it now has some catching up to do with other codes and has recently announced that its 15-a-side women’s players will be full time professional by 2025.^[16] With Australia to host the Women’s Rugby World Cup in 2029 there will be an opportunity to promote the women’s game just as the recent football World Cup did for that sport.

III Discrimination

A General Gender Discrimination

The gender discrimination that has existed against women in sport is perhaps best illustrated by the fact that no women competed in the First Modern Olympic Games in 1896, the founder of the modern Olympics, Baron Pierre de Coubertin, being opposed female participation. Guttnam, however, does suggest that this prejudice against women may have been derived more from Victorian attitudes about ‘porcelain-doll femininity’, and therefore was not so much a result of direct hostility against women as over-protectiveness.^[17]

Women’s tennis and golf were included in the 1900 Paris Olympic Games with women also being able to compete in croquet. However, the prestigious swimming and athletic programmes did not include any women’s events until 1912 and 1928 respectively. Today, however, paragraph 6 of the Fundamental Principles of Olympism outlined in the Olympic Charter^[18] states that:

The enjoyment of the rights and freedoms set forth in this Olympic Charter shall be secured without discrimination of any kind, such as colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other states.

It should be noted that the women’s programme at the 2020 Tokyo Olympic Games was all but the same as the men’s and in swimming, for example, a women’s 1500m freestyle was finally added. Swimming, athletics and triathlon also had mixed relays for the first time.

In Australia, legislation at both Commonwealth and state levels makes discrimination in sport unlawful, and usually it does not allow children being excluded from any sport up until the age of 12. After the age of 12, however, children can be excluded on the basis of gender, with s 66(1) of the Equal Opportunity Act 1995 (Vic), for example, stating a person may be excluded on the grounds of gender from participating in a competitive sport if strength, stamina or physique are relevant to the activity.^[19] For instance, Taylor v Moorabbin Saints^[20] involved Football Victoria’s Female Participation Regulation, which excluded girls over the age of 12 from competing in boys’ competitions. It was held that, while it was unlawful for the football association to exclude girls from the under-14 competition,^[21] the relative differences in strength, stamina and physique between the sexes in the under-15 competition was sufficiently significant to be make it lawful for girls to be excluded from under-15 competitions.^[22]

It is suggested that this decision is relatively uncontroversial. What has been controversial, however, in regard to gender discrimination issues has been the participation of pregnant, transgender and intersex women. .

B Pregnancy

Discrimination against pregnant woman is prohibited by the Sex Discrimination Act 1984 (Cth), and while it needs to be acknowledged that the law relating to the unborn can be a complicated one, a pregnant woman does owe a duty of care to the unborn child.^[23] The issue of banning pregnant women from participating in sport reached the courts in Gardner v All Australia Netball Association Ltd.^[24] Trudy Gardner was captain of the Adelaide Ravens in the Commonwealth Bank Trophy, the then national competition organised by the All Australian Netball Association (‘AANA’). On 18 June, 2001, the AANA imposed a ban on pregnant women playing in the competition. Gardner, who was 15 weeks pregnant at the time, was therefore prevented from playing in three matches^[25] before successfully obtaining an injunction to allow her to resume playing.^[26] At the subsequent trial it was held that Gardner had been discriminated against by being prevented from playing in those three matches. Damages of $6750 were awarded.^[27]

After Gardner, the Australian Sports Commission (‘ASC’) produced guidelines in regard to pregnant woman in sport^[28] which leaves the decision whether to compete or not being left to the individual player, with medical advice being recommended.^[29] It is worth noting that Gardner had in fact sought medical advice when she discovered she was pregnant, firstly from her General Practitioner, then from an obstetrician to whom she was referred. That advice was that there was no medical reason preventing her from playing netball at her stage of what was a healthy pregnancy.^[30] The fact that it is now 20 years since Gardner suggests the guidelines have worked well with a sport like netball.

However, with the ever-increasing number of women playing professional sport, the legal issues arising from pregnancy are yet to be fully determined, particularly as some of these sports involve far more physical contact than netball.

C Intersex Athletes

The term intersex refers to the fact that ‘some individuals have congenital conditions that cause atypical development of their chromosomal, gonadal, and/or anatomic sex.’ These are ‘known as differences of sex development, or DSD’s and sometimes referred to as “intersex”.’^[31] In sport the issue invariably involves athletes who identify as being female but have naturally high levels of testosterone and whether they should be allowed to compete in female competitions. South African middle-distance runner, Caster Semenya, for example, was ordered to undergo sex tests after winning the 800m at the 2009 World Athletics Championships. She was allowed to compete at the 2012 London Olympic Games, where she won the silver medal, before winning gold at the 2016 Rio Olympic Games.^[32]

Prior to the Rio Games there was a CAS decision in relation to Dutee Chand, an Indian sprinter.^[33] Chand was banned under the International Association of Athletic Federations (IAAF)’s Regulations Governing the Eligibility of Females With Hyperandrogenism to Compete in Women’s Competition (the ‘Regulations’).^[34] The Panel held that, on the then current evidence, it was ‘unable to conclude androgen-sensitive hyperandrogenic female athletes enjoyed such a substantial performance advantage.’^[35] The Regulations were therefore suspended for two years during which time the IAAF (now World Athletics) was required to produce evidence supporting their need, otherwise they were to be declared void.^[36]

On 23 April 2018 the IAAF announced it was reintroducing rules to prevent or limit hyperandrogenic females from competing in women’s events, with the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (‘DSD Regulations’)^[37] coming into operation on 1 November 2018. The IAAF referred to medical and scientific evidence it had collated to support a level of five nmol/L being selected, based on that evidence, as being the cut-off point.^[38] Athletes affected needed to reduce their blood testosterone level to below this level by means of hormonal contraceptives for at least six months in order to be eligible to compete. Another feature of the DSD Regulations is that they are restricted to certain track events where intersex athletes are considered to have an advantage, these being distances from 400m to 1500m (and one mile).^[39]

The announcement of the DSD Regulations received immediate criticism from the African National Conference (‘ANC’) that the rules were ‘yet another attempt... to exclude and discriminate against’ Semenya.^[40] In response, IAAF President, Sebastian Coe, stated that ‘it had a responsibility to ensure a level playing field for athletes.’^[41] Semenya then challenged the DSD Regulations in the CAS,^[42] but the majority of the Panel was satisfied that DSD athletes enjoyed ‘significant performance advantage over other female athletes without such DSD, and that this advantage is attributable to their exposure levels of circulating testosterone in the adult male range.’^[43] Thus, the DSD Regulations were considered ‘necessary to maintain fair competition in female athletics’^[44] and were therefore ‘necessary and reasonable.’^[45]

Well respected sports journalist, David Walsh, suggests that the governing bodies need ‘to be allowed to decide the rules for their competition because it is their responsibility to ensure fairness for the majority of participants.’ He further suggests that in regard to the participation of intersex athletes that ‘World Athletics has got this right.’ Walsh’s comments came after the European Court of Human Rights had found in Semenya’s favour in her appeal after the Swiss Federal Tribune had ruled against her appeal of the CAS decision.^[46] It is also worth noting that the CAS verdict was only a majority decision, indicating this is a matter that is far from settled.

What has recently become another major legal issue in sport is the separate, but related, area of the participation of transgender athletes in sport.

D Transgender

Transgender is a term used when a person is born as one gender but identifies with being the other. While athletes who were originally female and wish to compete in men’s events does not raise issues with fair competition, there are issues when biologically born males wish to compete in women’s events.

The IOC has adopted an open policy in regard to the participation of transgender athletes and, for instance, 43-year-old Lauren Hubbard from New Zealand participated in the women’s weightlifting competition at the 2020 Tokyo Games. Hubbard had won national junior titles and set records in the boy’s divisions before giving the sport away. In 2017, five years after her transition, she began competing in the women’s heavyweight division. She was eligible to compete at the Games as she had met the requirements set by the International Weightlifting Federation (‘IWF’), namely having a testosterone level at below 10 nanomoles (nm) per litre for twelve months before first competition. However, many sports scientists suggest this level is too low as the average range for women is between 0.3nm and 2.4nm.^[47]

Despite the IOC’s open policy, international governing bodies are still free to develop their own. In the year following the Tokyo Olympics, the world governing body for swimming, Federation Internationale de Natation (FINA - now World Aquatics), released a transgender policy. This was done after its Congress in Budapest where the attending delegates had received a detailed report FINA had commissioned from independent scientists and medical experts. Its most significant conclusion was ‘that the physical benefits males derive from puberty cannot be reversed.’^[48] Seventy-one of the delegates voted in favour of the Policy^[49] which bans male to female transgender and 46 XY DSD athletes from elite female competition unless they can comply with cl 4(b). It states that they need to ‘establish to FINA’s comfortable satisfaction that they have not experienced any part of male puberty beyond Tanner Stage 2 or before age of 12, whatever is the later.’ It then states they must specifically produce evidence’ which establishes that they either ‘have complete androgen insensitivity and could not have experienced male puberty’ or that ‘they are androgen sensitive but had male puberty suppressed.’ They are then required to ‘have maintained testosterone levels below 2.5 nmol/L.’^[50] It was stated the Policy applied to FINA-organized events and also in regard to the recognition of world records. Thus, it was restricted to elite competitions. That then raises the issue as to what is elite. The author suggests it should include state championships.^[51]

Swimming has not only been one of the first sports to produce a detailed policy on the participation of transgender athletes but is also the first to announce that a trial open category event would go ahead sometime in 2023. It would allow ‘swimmers to compete regardless of their sex, their legal gender or gender identity.’ The problem is how it will require a working group that consists of ‘scientists, human rights advocates, lawyers and athletes, to come up with recommendations.’^[52] It is suggested that the fact this working group required people from such diverse professional backgrounds indicates just how complex this issue is.

Within Australia, Basketball Victoria has been willing to approve the participation of a transgender player in the NBLI South women’s competition, a decision, like most in this area, that drew strong and divided views. Former Australian player, Andrew Bogut, being one who was strongly against it, stating that a ‘“biological man” would be playing in the NBLI this season.’ However, Basketball Victoria had collaborated with Basketball Australia to produce Guidelines for the Inclusion of Transgender and Gender Diverse People in regard to this issue of allowing such players to participate .^[53] Gymnastics Australia meanwhile has changed its rules ‘to allow transgender people to self-identify and compete in all community gymnastics events.’^[54] It is a decision that has been criticised, including by tennis champion, Martina Navratilova, a supporter of women’s sport being restricted to biological females.

One of Navratilova’s concerns is that competitors she considers to be biological males would not only be competing against females but will also be allowed to use female changerooms which she describes as something that ‘heavily discriminates against young girls and women.’^[55]

While this is a potential issue, there is no doubt the main issue surrounding the participation of transgender athletes in women’s competitions is whether these athletes have in fact retained a significant physical advantage. The IOC has therefore funded a research programme at the University of Loughborough to assess the performance, strength and speed of elite athletes ‘over a period of time after transitioning and undergoing hormone therapy.’ However, in a blow for the IOC, and sport in general, three of the four participants have withdrawn from this study.^[56] While decisions need to be made in this area based on reliable scientific evidence, this result highlights just how hard it is going to be to obtain such evidence.

IV Doping in Sport

The issue of doping in sport is probably of more relevance to women than it is to men for the simple reason that women invariably have more to gain from the use of prohibited substances, particularly strength related substances, such as steroids. This is illustrated by the dominance of the East German women athletes and swimmers during the 1970s and 1980s after being part of a state-based doping program. In some events, such as the women’s athletics’ 400m, this dominance continues to the present day as the world record is still held by East Germany’s Marita Koch.^[57] However, the now well-known long-term health problems faced by many of the East German athletes also highlights the negative health aspects of the use of performance-enhancing drugs.

In order to help remove, or at least, reduce doping in sport, the World Anti-Doping Agency (‘WADA’) was established in November 1999. It produced the World Anti-Doping Code (‘WADA Code’) in 2003. This document sets out to harmonise the rules relating to drug testing, with the banned substances being listed in the WADA Prohibited List. Article 4.3 sets out the criteria for including substances on the Prohibited List, namely that there is medical evidence the substance has the potential to, or does, enhance sport performance, or represents potential health risks to athletes, or its use violates the spirit of sport.

Five times tennis Grand Slam winner, Maria Sharopova is one of the most high-profile female athletes to have failed a doping test. This was after she tested positive at the 2016 Australian Open to meldonium, a substance that she had been taking for health reasons for many years, and one that had only been added to the banned list on 1 January 2016.^[58] Sharapova also delegated the job of finding out about what was on the WADA banned list to her agent. It was acknowledged by the CAS Panel that this was an acceptable action for a professional athlete.^[59] However, it also held that she had not given sufficient instructions to the agent as to exactly what he was supposed to do, and banned her for fifteen months, backdated to January 2016.^[60] The response to her return to women’s tennis in 2017 was mixed, with some being adamant she should not have been allowed back in as she was a drug cheat who had been taking a performance-enhancing drug for the best part of a decade.^[61] This was a response that, in the author’s opinion, showed ignorance of both the WADA Code and the CAS decision.

The issue of contamination has been raised in a number of CAS cases and one such case involving a female competitor was that of Australian swimmer, Shayna Jack.^[62] Jack had been subjected to an out-of-competition test on 26 June 2019 at the Tobruk Pool in Cairns while preparing for the World Swimming Championships. It returned a positive test for ligandrol, a substance that is classified under ‘other anabolic agents’ and ‘is prohibited at all times under the WADA Prohibited List.’^[63] Jack received an immediate provisional suspension and was subsequently given a four-year period of ineligibility, backdated to 12 July 2019 when her provisional suspension was imposed.^[64] On appeal to CAS the Sole Arbitrator held that the anti-doping rule violation (ADRV) was not intentional^[65] and that she did not know how it had entered her body, ^[66] noting that Jack was a ‘reliable and very plausible witness.’^[67] A two year ban commencing on 12 July 2019 was therefore imposed.^[68] Sports Integrity Australia (SIA) and WADA appealed that decision, but were unsuccessful.

A feature of the present doping rules is that after a positive test, competitors can now be retrospectively disqualified from events. One of the best examples of this involves Marion Jones who had been considered by many to be one of the greatest female track athletes of all times after her performances in the 2000 Sydney Olympic Games. However, in 2006 she returned a positive test to the blood boosting hormone, erythropoietin (EPO), before confessing to steroid use prior to the 2000 Games. She was forced to return her five Olympic medals.

More recently the retest of doping samples taken at the 2008 Beijing and 2012 London Olympic Games, has seen many athletes, including women, retrospectively lose their medals. During the Beijing Games, Ukrainian Lyudmila Blonksa had lost her silver medal won in the women’s heptathlon after returning a positive test for methyltestosterone, American, Hyleas Fountain then receiving the silver while Russian Tatyana Chernova was given the bronze.

However, Chernova’s Beijing sample was retested in July 2016, and this revealed the presence of dehydrochlormethyltestosterone (Turinabol).^[69] In the subsequent appeal to the CAS Panel it was held that the laboratory analysis of Chernova’s sample was valid^[70] which meant she lost the bronze medal she had only won as a result of a positive test by another athlete.

The retest of women’s weightlifting also resulted in the re-distribution of medals, the first two in the 48kg, China’s Chen Xiexia and Turkey’s Sibel Ozkan later being disqualified. The gold and bronze medallists in the 69kg, China’s Liu Chunhong and Ukraine’s Nataliya Davydora, also later returned positive retests, as did the first and third placegetters in the 75kg, China’s Cao Lei and Russian Nadezhda Evstyukhina.

At the London Games meanwhile the women’s 800m had been won by Russian Mariya Savinova, but in 2017 she was considered to have had irregularities in her biological passport with the gold medal being awarded to South Africa’s Caster Semenya. The winner of the 3000m steeplechase, Russian Yuliya Zaripova, returned a positive retest for anabolic steroids and in 2015 also lost her medal.

The 1500m results meanwhile were changed even more remarkably as both the original gold and silver medallists, Turkey’s Asli Cakir Alptekin and Gamze Bulut, were found in 2015 to have breached doping regulations.^[71] Women’s field events meanwhile saw Russian athletes losing medals with the retesting of the sample of original gold medallist in the hammer throw, Russian Tatyna Lysenko Beloborodva, for instance producing a positive result for metabolites of dehydrochlormethyltestosterone.^[72] Both the original winner of the shot put, Nadzeya Ostapchuk from Belarus, and silver medallist, Russian Yevgeniya Kolodko, lost their medals which elevated original bronze medallist, New Zealand’s Valarie Adams, to Olympic champion. Other minor medals were also lost for doping violations, including silver medallist in the discus, another Russian, Darya Pishchalnikova, after she failed a drug test in 2013.

Women’s weightlifting in London also had its doping issues with 2016 retests leading to the disqualifications of Zulfiya Chinshanlo of Kazakhstan, gold medallist in the 53kg, and bronze medallist, Cristina Iova of Moldova, both results being for steroids. Bronze medallist in the 58kg class, Yuliya Kalina of Ukraine, likewise failed a 2016 retest for steroids as did the 63kg division gold medallist, Maiya Maneza from Kazakhstan. In the 75kg division meanwhile all three medallists, Svetlana Podobedova, from Kazakhstan, Russian Natalya Zabolotnaya, and Iryna Kulesha from Belurus, failed these 2016 retests for steroids. It took a few more years, but in 2020, original silver medallist in the 69kg division, Romania’s Roxana Cocos, failed a retest of her London sample.

V Conclusion

Women’s competitive sport has been around for over a hundred years, first appearing, for instance, in the 1900 Paris Olympic Games, even if it was limited to just three sports. In the Grand Slam events of tennis, women have been competing at Wimbledon since 1884 while women have been representing Australia at cricket since the nineteenth century. However, there is no doubt that women’s sport has reached a new level in the twenty-first century, particularly in relation to ever-growing team leagues, while the success of the recent women’s football World Cup has highlighted the interest in international team sports.

With the continuing increase in the participation of women in sport, particularly at the professional level, there will almost certainly be an increase in the number of cases involving women needing to be heard by CAS, and possibly the general courts. An examination of the decided CAS cases indicates that, with many, the fact that one of the parties was a female athlete was not directly relevant. However, decisions involving the likes of tennis player Maria Sharapova and swimmer Shayna Jack have still contributed to the lex sportiva of one of the most significant areas of sports law, namely doping. Similarly, in Australia the tax case involving Joanne Stone^[73] provided a significant High Court decision in relation to what constitutes income for Olympic athletes, whether they be male or female.

There are two areas of sports law which are unique to female participants, namely pregnancy and intersex/transgender athletes. The issue of pregnant women competing in sport has raised discrimination, torts and contract issues in sports such as netball and cricket. While guidelines developed by the ASC appear to have presently provided a sound basis for avoiding issues in netball, it is suggested that further issues are still probable with the increase of women’s participation in sport, particularly contact sport.

The IAAF’s DSD Regulations have been approved by the CAS and presently provide the foundation for the participation of intersex athletes in women’s track events, though it is the author’s view that further hearings in CAS are likely. Each governing body is also going to need to develop a policy for the participation of both intersex and transgender athletes suitable for its sport.

There is no doubt that the year 2023 has been a significant one for women’s sport with the introduction of a women’s Indian Premier League in cricket and the success of the women’s football World Cup. Both have indicated that gender parity in team sports may not be far away and that women’s sport will continue to grow in future years – as will its legal challenges.

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^* Associate Professor, College of Business, Law and Governance, James Cook University.

^[1] [1894] UKLawRpAC 52; [1894] AC 535.

^[2] Ibid, 565.

^[3] Chris Davies, ‘The Use of Salary Caps in Professional Team Sports and the Restraint of Trade Doctrine (2006) 22 Journal of Contract Law 246, 247.

^[4] [1984] NI 9.

^[5] Ibid, 23.

^[6] Note that while salary caps have used in men’s leagues for many decades, they have never actually challenged in court. For further discussion on the use of salary caps see Antonio Buti, ‘Salary Caps in Professional Teams Sports: An Unreasonable Restraint of Trade’, (1999) 14 Journal of Contract Law 130, Chris Davies, ‘The Use of Salary Caps in Professional Team Sports and the Restraint of Trade Doctrine (2006) 22 Journal of Contract Law 246.

^[7] [1991] FCA 425; (1991) 31 FCR 242.

^[8] Ibid, 296.

^[9] Ibid, 297.

^[10] Chris Davies, ‘Draft Systems in Professional Team Sports and the Restraint of Trade Doctrine’ (2006) 1 Australian and New Zealand Sports Law Journal 80,100.

^[11] Justin Cook and Chris Davies, ‘Free Agency and the Australian Football League’, (2012) 24 Bond Law Review 64.

^[12] Will Stanton, ‘Reality bites as T20 riches create an awkward truth,’ The Australian, 15 February 2023, 28.

^[13] Marco Monteverde, ‘Best ever’ World Cup’, The Australian, 23 August 2023, 22.

^[14] John Stensholt and Sophie Elsworth, ‘Operation Matildas and the $1b Cup,’ The Australian, 17 August 2023, 7.

^[15] John Stensholt and Jessica Halloran, ‘Matilda’s Cup motza won’t stop parity pay fight’, The Australian, 3 August 2023, 3.

^[16] Pamela Whaley, ‘Wallaroos go public in brawl over funds’, The Australian, 21 August 2023, 7.

^[17] Alan Guttnam, From Ritual to Record: the Nature of Modern Sport, Columbia University Press, New York, 1978, 34.

^[18] The Olympic Charter, in force 15 October 2023, https://olympics.com

^[19] See also s 57M Discrimination Act 1991 (ACT); s 56(1)(c) Anti-discrimination Act 1992 (NT);

s 111(1)(c) Anti-discrimination Act 1991 (Qld); s 49ZYW (1) Anti-discrimination Act 1977 (NSW);

s 66ZJ(3) Equal Opportunity Act 1984 (WA); s 31 Anti-discrimination Act 1998 (Tas); s 85Q Equal Opportunity Act 1984 (SA).

^[20] Taylor v Moorabbin Saints Junior Football League and Football Victoria Ltd [2004] VCAT 158.

^[21] Ibid, [82].

^[22] Ibid. Note the decision is consistent with Robertson v Australian Ice Hockey Federation and Victorian Ice Hockey Association (Unreported, ADTVIC, No 207 of 1997) where a 15 year old girl was prevented from playing in a boys’ competition, it being held that s 62(2) of the Equal Opportunity Act 1995 (Vic) permitted age restrictions in participating in competitive sporting activities.

^[23] Lynch v Lynch (1991) 25 NSWLR 411.

^[24] [2003] FMCA 81; (2003) 197 ALR 28.

^[25] Ibid, 29.

^[26] Ibid.

^[27] Ibid.

^[28] Australian Sports Commission, Pregnancy in Sport: Guidelines for the Australian Sporting Industry, Canberra, ASC, 2002.

^[29] Ibid.

^[30] Gardner v All Australian Netball Association Ltd [2001] FMCA 50; (2001) 182 ALR 408, 412.

^[31] Ibid, 1.

^[32] Nicole Jeffrey, ‘Gender Games’, The Australian, 17 August 2016, 31.

^[33] CAS 2014/A/379 Dutee Chand v Athletics Federation of India & International Associations of Athletic Federations.

^[34] Ibid, [4].

^[35] Ibid, [532].

^[36] Ibid, [548].

^[37] https://www.iaaf.org.

^[38] Ibid, 2.

^[39] Ibid, 3.

^[40] ‘New Testosterone rules racist, say African National Congress’ The Australian, 28 April, 2018, 45.

^[41] Ibid.

^[42] CAS 2018/O/5794 Caster Semenya and Athletics South Africa v International Association of Athletics Federation: CAS 2018/O/5798 Athletics South Africa v International Association of Athletics https://www.tas-cas.org.

^[43] Ibid, [575].

^[44] Ibid, [580].

^[45] Ibid, [584].

^[46] David Walsh, ‘Semenya case highlights need for sports to be able to create level playing field’, The Australian, 24 July 2023, 22.

^[47] Matt Dickenson, ‘Early exit cannot allow IOC to dodge transgender issue’, The Australian, 4 August 2021, 25.

^[48] Julien Linden, ‘What science has to say about male advantage’ The Weekend Australian, 25-26 June 2022, 40.

^[49] ‘Policy on Eligibility for the Men’s and Women’s Competition Categories’ https://resources.fina.org.document.2022/06/19.

^[50] Ibid, 7.

^[51] Chris Davies, ‘FINA’s transgender policy and the integrity of women’s sport’ (2023) 1 Sports Law Bulletin 26, 28.

^[52] Julien Linden, ‘The first plunge into trans comp’ The Australian, 26 July 2023, 22.

^[53] Matt Logue, ‘Sporting world in new trans dilemma’ The Australian, 14 March 2023.

^[54] Jacquelin Magnay, ‘Navratilova slams gymnastics’ trans stance’ The Weekend Australian, 7-8 October 2023, 11.

^[55] Ibid.

^[56] Marty Zeigler and Craig Lord, ‘Athlete exodus rocks trans study’, The Australian, 3 February 2023, 24.

^[57] This was run in Canberra, Australia on 6 October 1985. https://www.iaaf.org/record/worldrecords

^[58] CAS 2016/A/ 4643 Maria Sharapova v International Tennis Federation [6].

^[59] Ibid, [40].

^[60] Ibid, [103].

^[61] Will Swanton, ‘Sharapova aims to rebuild reputation’, The Australian, 17 January 2018, 26.

^[62] CAS A1/2020 Shayna Jack v Swimming Australia & Australian Sports Anti-Doping Authority.

^[63] Ibid, [8].

^[64] Ibid, [14].

^[65] Ibid, [77].

^[66] Ibid, [83].

^[67] Ibid, [87].

^[68] Ibid, [102].

^[69] CAS 2017/A/5124 Tatyana Chernova v International Olympic Committee (IOC), 3.

^[70] Ibid, 12.

^[71] CAS 2016/A/4615 Asli Cakir Alptekin v World Anti-Doping Agency (WADA), 20.

^[72] CAS 2018/O/5674 International Association of Athletic Federations (IAAF) v Russian Athletics Federation (RUSAF) & Tatyana Lysenko Beloborodva, 3.

^[73] Commissioner of Taxation v Stone (2005) 229 CLR 289.