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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!

-- Posted by Geoffrey Rapp @ 5/18/2008 06:07:00 PM -- Comments (7) -- Post a Comment

7 Comments:

As in the Martin case, the problem with the idea of "this guy is still at a net disadvantage" is that it is impossible to define this "net".

The CAS argument is, basically, that on average over the length of the race, Mr. Pistorius does about as well as racers running the same time as he is (he's slower in the beginning and on curves, but faster on straights). This is tautologically true but doesn't mean anything. The IAAF's approach, asking whether he get an advantage at any point during the race is much better: it actually makes sense.

Both here and with Martin, the courts seem to rely on the implicit idea (appropriate in public-accomodation settings) that there is a norm for what able-bodied people are able to do; if, on the whole, the disabled person can function about as well as the able-bodied, then he should be treated the same.

The problem is that world-class athletes are, by definition, not normal. The entire point of the competition is to see who is the greatest outlier. This ruling depends on comparing Mr. Pistorius to two sets of "reference athletes" (during a race in Rome and in a lab test). As I said above, these athletes were chosen to have approximately the same "ability" as Mr. Pistorius. Obviously this means that they run at about the same average speed, giving the tautology I mentioned above.

In fact, the research has shown that he required less oxygen (hence, effort) to run, compared with these reference athletes. So he is certainly at some advantage.

I wish Mr. Pistorius all the best, but at some point you have to accept that the rules can't work for everyone; that some people are sufficiently different that they cannot be accommodated. We shouldn't be chasing the meaningless chimera of "how good would he have been had he not been disabled?", nor should we tune his prostheses to match this particular level of performance (essentially what the CAS is trying to do, which tell you there's something wrong here). Rather, we should admit that we cannot accommodate him at regular athletic events while keeping the spirit of the competition.

Lior -- 5/18/2008 7:36 PM

Let's be honest here: CAS could have easily ruled differently, but they didn't because they know 1. He might not make the RSA team and 2. Even if he does, he will not be a legitimate competitor for a medal and 3. It's a feel good story for the Olympics.

Anonymous -- 5/18/2008 9:11 PM

As far as the "offensive pun" goes, I'm of the opinion that demanding that phrase not be used is going too far with political correctness. If a clerk intentionally thought to themselves "Haha, stupid cripple, hope he likes this little joke," then it's horrible and someone should be disciplined for it. But it's the common saying. Athletes of differing races/gender/nationality/religion etc. should all be on the "same footing." An athlete with two prosthetic arms should be on the "same footing." I think to affirmatively avoid using a phrase like that means he isn't on the "same footing," especially in the context of handicapped/disabled/differently-abled people, many of who just wanted to treated like people.

John -- 5/19/2008 8:56 AM

How can the prosthetic legs not provide him with an overall net advantage? He goes from not having legs with which to run to having artificial legs that enable him to sprint at world-class speeds. How is that not an overall net advantage?

Anonymous -- 5/19/2008 12:50 PM

In evaluating the concept of overall net advantage you need to compare him to himself before the loss of his legs, not to other athletes. If I was a competitive runner that ran a mile in 4:30 before losing my legs but now can run a 4:00 mile with the prosthetic limbs I have a net advantage as it relates to myself. It shouldn't matter what other people can do over that distance.

When you compare him to himself you have a major problem since he was born without a fibula in both legs so you have no "before" ability to compare him to. He can only run with prosthetics and thus has a huge net advantage relative to himself because of them.

Anonymous -- 5/19/2008 1:38 PM

Aside from the serious problems pointed out in some of the previous comments, the most serious flaw in this ruling is that Pistorius had a marked incentive to underrepresent the benefit provided by the prostheses. Paradoxically, the faster he performed using the Cheetah legs, the lesser his chance of being approved to compete in the Olympics. The problem is that the standard he was required to meet --not overall net advantage-- is almost entirely arbitrary.

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Kevin -- 6/20/2008 12:13 PM