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Sunday, May 18, 2008
Double-Amputee Pistorius Wins Right to Run with Cheetahs; Most Offensive Metaphor in a Disability Case Ever?
Oscar Pistorius has become "the first amputee to successfully challenge the notion that his carbon-fiber prosthetics gave him an unfair advantage and assured his right to race against able-bodied athletes in the Olympics . . ." The full text of the Court for Arbitration of Sport ("CAS") panel's decision can be downloaded here. However, since CAS has not yet created a searchable database of past decisions, the PDF will only be available as long as it is classified a "recent" decision. For a background on the dispute, see my January post on this blog or Marc Edelman's Above-the-Law piece.
The meat of the CAS panel's decision begins around page 10. The panel characterized the IAAF's investigation of Pistorius's case as procedurally "off the rails." The IAAF expert recruited to analyze whether the Cheetah prosthetic gave Pistorius an advantage was tasked with examining the runner's performance only in the "straight" portions of a run (it appears that Pistorius is slower than other runners in the curved and starting portions of his races, but faster in the straight portions). The expert's analysis, in the panel's view, was flawed from the start and rigged to produce a conclusion that Pistorius had a competitive advantage.
The second issue considered by the panel was whether the IAAF's exclusion of Pistorius amounted to unlawful discrimination. The panel, hopefully not intending this rather shocking and offensive pun, opined that "disability laws only require that an athlete such as Mr. Pistorius be permitted to compete on the same footing as others." Maybe some law clerk or research assistant was playing a joke on this panel by trying to see if s/he could slip this in? Regardless, Pistorius attempted to demonstrate that the IAAF had violated the international Convention on the Rights of Persons with Disabilities. Since the IAAF was not a signatory to the convention, the panel ruled that the Convention did not impose any obligations on the federation.
Pistorius earned his victory thanks to the panel's analysis of whether the IAAF violated its own Rule 144.2(e) in declaring him ineligible. That rule forbids the use of "any technical device that incorporates springs, wheels, or any other element that provides the user with an advantage over another athlete not using such a device." The panel begins with some snide commentary about the rule itself -- asking whether it might bar the use of the "natural human leg" which "is itself a spring." This is kind of a silly venture, of course, since the rule bans any "technical device" - whether springed or otherwise. Any sensible observer of this dispute and this rule knows the Cheetah prosthetics qualify as a "technical device."
But does the system give Pistorius an advantage over an athlete not using the prosthetics? Here, the panel had to decide what the rule meant by "advantage". The panel reads the rule as barring only devices that provide a "net advantage" -- "If the use of the device provides more disadvantages than advantages, then it cannot reasonably be said to provide an advantage over other athletes, because the user is actually at a competitive disadvantage." Since the IAAF investigation did not explore whether the Cheetah provided a "net advantage" (in comparison, I take it, with running on a pair of natural legs), the IAAF's exclusion of Pistorius was reversed.
The CAS panel here has embraced a very similar notion to one of the bases of the U.S. Supreme Court decision in the Casey Martin ADA golf cart case. (I raised the analogy in my last post on the case). Although the panel did not cite Martin, it shares the view that a disabled athlete who requests the use of a technical device as an accommodation should be permitted to use that device if, even after using the device, he will still be as fatigued as healthy athletes not using that device.
As NY Times reporters Robinson and Schwarz astutely observe: "The ruling’s direct impact on disabled athletes could be limited, in part because Pistorius, 21, still must post a time fast enough to qualify for the Games."
Run, Oscar, run!