Lexpert Magazine

16 LEXPERT MAGAZINE | MAY 2019 behaviour I had seen more than once in the eighties," he says. Nott and his colleagues successfully ne- gotiated Semenya's return to competition, where she eventually became a world cham- pion and an Olympic athlete. rough all this, the bond between law- yer and athlete only grew stronger. "I changed firms and Caster followed me, becoming a family friend as well as a cli- ent — very much a part of me," Nott said. "Over the years, with the help of my col- leagues Sandra Sithole and Patrick Bracher, and with the full support of Norton Rose, we've built a strong team around her." When the IAAF formulated the DSD regulations, Semenya consulted Dr. Payo- shni Mitra, an Indian scholar, athletes' rights advocate, and research consultant and lecturer at the University of London who had championed Chand. Payoshni knew Bunting through her involvement with Chand and suggested to Nott that he engage the Canadian. "I reached out to Jim," says Nott, who was a solicitor as opposed to a barrister in South Africa's bifurcated Bar. "We felt a kinship aer our first call and it produced a working relationship and friendship that exceeded any expectations." As it had to, because the case was even more complicated than Chand's. "Both cases engaged ethics, moral- ity, science and law in a way that we'll never see again," Bunting says. "But while Chand's case had 16 witnesses, 12 of whom were experts, there were 32 expert witnesses involved in Caster's arbitration, in fields that included gynecology, en- docrinology, genetics, psychiatry, sports medicine and physiology." Surprisingly, the hearing lasted only one week, largely because of the COA's unique process. "e parties create panels in the differ- ent areas of expertise, they meet and go over the issues in advance, and then they all go into the box," Bunting explains. "Each expert provides his or her view on the individual issues, with the panel and counsel free to ask questions," Bunting explains. "It feels a bit like a free-for-all, but it does get a lot of evidence out quickly and can be very effective." Apart from the advocacy, however, it's obvious that these types of cases make a profound personal impression on counsel. "Quite apart from the profoundly global scope and impact of what's at stake, you're dealing with an individual client whom you get to know well and whom you are trying to protect because these rules have already had a profound impact on their lives — and you want to make sure that they can continue doing the one thing they can do," Bunting says. "We're advocating for people to run the way they're born and at the simplest level, we celebrate genetic variation." Sayao, a competitive swimmer on Can- ada's national team for seven years who trained with Michael Phelps at the Univer- sity of Michigan, understood Chand and Semenya's trials from personal experience. "I'm openly gay and struggled in the world of athletics, so it was lovely to be involved in a case that engaged the funda- mental rights of a single individual whose life had been impacted in such a direct, sig- nificant way," he said. Unfortunately, the IAAF made hay of its second crack at the evidentiary can. Al- though the Semenya panel unanimously concluded that the DSD regulations were discriminatory, a 2-1 majority concluded that the regulations were necessary, rea- sonable and proportionate to obviate the "As a general litigation counsel, one of the areas I had cultivated was a niche practice in sports litigation, so when Bruce Kidd [the Canadian long- distance runner and former Olympian] asked me to help out, we decided to take on the case." XXXXXXX XXXXXXXXXXXXXXXX JAMES BUNTING DAVIES WARD PHILLIPS VINEBERG LLP

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