Running, Sports

Sports and the Law: Oscar Pistorius’s Claim has Strong Legs to Stand on

Sports and the Law Above the Law blog.jpg[Ed. note: This is the second column by ATL’s new sports columnist, Marc Edelman. You can read more about Marc, and check last week’s inaugural column (in case you missed it), by clicking here.]
Twenty-one year old South African runner Oscar Pistorius had his heart set on running the 400-meter event at the 2008 Summer Olympics. However, on January 14, the International Association of Athletics Federations (“IAAF”) ruled that Pistorius was ineligible to compete because he has artificial legs.
According to the IAAF, Pistorius’s j-shaped carbon-fiber prosthetics (sometimes known as “cheetahs”) give him an advantage over runners with natural legs. As a result, the IAAF put the kibosh on what should have been the feel-good story of the 2008 Beijing games.
The story of Oscar Pistorius is truly remarkable. Born with a congenital disease that prevented the fibula in his legs from forming properly, Pistorius, at the age of 11 months, had both of his legs amputated below the knee. A few years later, he was fitted with his first prosthetics.
Read the rest of the column, after the jump.

Despite having artificial legs, Pistorius’s parents did not treat him differently from able-bodied children. His parents encouraged him to compete in sports such as rugby, tennis, water polo, and wrestling. To their delight, he proved quite talented.
In high school, Pistorius decided to join the rugby team. Competing against able-bodied athletes, he suffered a serious knee injury that required rehabilitation. While rehabbing his injury, Pistorius started to run short distances.
Pistorius made his formal debut as a runner at the age of 17 in the 2004 Summer Paralympics, competing against both single- and double-amputees. Despite not having much running experience, Pistorius set the Paralympic record in the 200-meters, finishing in just 21.97 seconds. Pistorius then went on to shatter the Paralympic record in the 100 meters and the 400 meters.
By 2005, Pistorius was not only beating Paralympic runners, but he was leaving old records in the dust. Seeking higher competition, he began competing against able-bodied athletes. In March 2007, Pistorius’s time of 46.56 in the 400 meters earned him a second-place finish against able-bodied South African national champions. His time seemed to place Pistorius within grasp of an Olympics bid, if not for concern about the IAAF rule prohibiting technological aids that affect the purported “purity of the sport.”
Oscar Pistorius Above the Law blog.jpgAlthough the IAAF makes decisions about technological aids on a case-by-case basis, the IAAF ultimately decided that Pistorius’s artificial limbs give him an unfair advantage. This is a point over which many medical experts disagree. It is also a position with which the National Collegiate Athletic Association (“NCAA”) disagrees, having allowed women’s runner and double amputee Aimee Mullins to compete in Division I athletics for Georgetown University despite using “cheetah” legs.
Before completely chastising the IAAF’s decision, it is worth noting that there is a real slippery slope argument here. Indeed, the day may come when science will make artificial body parts that are so far superior to the real things that athletes wanting Olympic championships badly enough might choose to remove their healthy body parts, leading a race to the bottom. We have also seen this kind of race to the bottom emerge in the world of professional modeling, where models regularly undergo invasive bodily surgery to gain a competitive edge.
Then again, Pistorius’s case is not about someone wanting to replace his real legs to get an edge. Nobody questions that Pistorius’s legs were amputated when he was a baby because he did not have fibulae. Pistorius’s artificial legs were meant to serve as the next-best alternative. In addition, even if his j-shaped carbon-fiber alternatives were to have certain advantages over human legs, the IAAF has not disqualified athletes for undergoing other medical procedures that yield superior results. For example, the IAAF has not disqualified athletes for having undergone laser eye surgery that produces better than 20-20 vision. So, why should Pistorius be treated differently?
Pistorius is currently appealing the IAAF’s ruling to the Court of Arbitration for Sport in Lausanne, Switzerland. However, because the Olympics appeals process is slow, he does not expect a decision in time for the 2008 games. Of course, there is a chance that the Court of Arbitration for Sport eventually will overturn the IAAF decision, paving the way for Pistorius to run in the 2012 Olympics. Yet, even that outcome is uncertain.
Beyond the appeals process, Pistorius could attempt to overturn the IAAF decision in other ways. For example, he can try to get major Olympic sponsors to apply pressure to bring about a rule change, as well as try to follow in the footsteps of Casey Martin and bring suit under the Americans with Disabilities Act (“ADA”) — although, of course, an ADA suit would be a tremendous stretch on jurisdictional grounds.
For now, it seems highly unlikely that we will see Pistorius running in Beijing. Although Pistorius’s claim has strong legs to stand on, his artificial legs may be just too special for this year’s Olympics.
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Marc Edelman is an attorney, business consultant, published author and professor, whose focus is on the fields of sports business and law. You can read his full bio by clicking here, and you can reach him by email by clicking here.

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