Sports and the Law: From Pistorius to the More Ridiculous, Disabled Athletes Seek New Rights
Next week in Lausanne, Switzerland, the Court of Arbitration for Sport will hear the appeal of double-amputee sprinter Oscar Pistorius (previously blogged about here). Pistorious is challenging the International Association of Athletics Federation's ruling that he cannot compete in the 2008 Olympics because his j-shaped, carbon-fiber prosthetic legs allegedly violate an IAAF rule against "use of any technical device that incorporates springs, wheels or any other element that provides the user with an advantage."
As of recently, Pistorious has been represented by Dewey & LeBoeuf (disclosure: my previous employer) and the firm's acclaimed sports attorney, Jeffrey Kessler. The thrust of Pistorius's appeal will be that his prosthetic legs do not provide any advantage over real legs. Although a victory for Pistorius in this appeal would not make him the first amputee to compete in the Olympic Games (American George Eyser already has that title, having won three gymnastics gold medals on a wooden leg), it would pave the way for Pistorius, if successful in his trials, to become the first Olympic track and field runner to compete on prosthetic legs.
While Pistorius and his lawyers are pushing for the Court of Arbitration for Sport to rule him eligible to compete using his choice of prosthetics, a few recent lawsuits filed by disabled American athletes have requested far more drastic accommodations.
Read about one such suit, plus more commentary on Pistorious's case, after the jump.
For an example of one of the more extreme disability claims, in Badgett v. Alabama High School Athletic Association, 2007 WL 2461928 (N.D. Ala. 2007), the parents of a wheelchair-bound student with cerebral palsy, Mallerie Badgett, brought a claim arguing that wheelchair-bound students should be allowed to compete for team points against able-bodied students running in a track race on foot. According to the complaint, "Miss Badgett [was] concerned that competing in a separate wheelchair division [would] affect her ability to receive college scholarships and other benefits." The Northern District of Alabama ultimately, and wisely, denied Badgett's request for a preliminary injunction.
Pistorius's claim, by contrast, represents a more reasonable request for accommodation. Unlike a wheelchair, even the most advanced prosthetic legs do not seem to change the essence of a track and field event.
As the Court of Arbitration for Sport hearing progresses, it will also be interesting to observe whether the efforts of a big New York law firm ultimately help Pistorius obtain a chance to compete for a spot in the 2008 Olympic Games. While the Court of Arbitration for Sport historically has shown some deference toward protecting sporting associations' rules, the court has never heard a case of this nature. That, coupled with the prospect of new expert findings, may all work to Pistorius's advantage.
P.S. Last week I blogged about Starbucks CEO Howard Schultz's potential lawsuit to rescind his 2006 sale of the Seattle Supersonics to Clay Bennett's group from Oklahoma City, OK. On Monday, Schultz filed his complaint in the U.S. District Court for the Western District of Washington at Seattle (available here).
Upon reading the complaint, one should note the following: (1) Schultz dropped his contract claim and sued only based on fraud and negligent misrepresentation; (2) rather than just seeking actual rescission, Schultz creatively requested that the team be placed into a trust; and (3) for what still seems like a weak claim, Schultz's attorney, Richard Yarmuth, presents his argument as powerfully as possible. My first recommendation to Bennett's legal team: along with the inevitable motion to dismiss, you may want to consider filing a motion for a change of venue to anywhere but Seattle, WA.
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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.
(22) 
Good for D&L
While the prosthetics may not be an advantage over real legs, they are an advantage over no legs. He should probably lose. If he wants to compete in the Olympics he should have to qualify like everyone else - with what the good Lord gave him (or didn't give him).
Dear David Lat:
I miss the ATL of old. And I'm not talking about layout (I could care less about those nonsense debates). I'm talking substance.
Seldom did a day pass where your witty commentary--from "Brokeback Lawfirm" to "fat Judge Halverson"--were not the topic of my firm's watercooler gossip.
Please ask your bloggers to post on interesting topics (e.g., "who is sleeping with who", "bonuses" (yes-- I believe my firm's quite generous bonus can be attribuited to the bad press it received from you), and "idiot lawyers' of the day"). Most readers are not interested in obtaining a job in Tibet, or taking a Lateral Link poll, or reading past the byline of "Sports and the Law: From Pistorius to the More Ridiculous, Disabled Athletes Seek New Rights". Your loyal readers are interested in legal gossip and stirring up problems in the office.
ATL Reader / Self-Appointed Ombudsman
Dear Self-Proclaimed Ombudsman-
You do not speak for all readers. Many readers appreciate the variety of content available here. If you are unhappy with some of the posts, simply scroll past, the other content is still available.
Other Readership
Don't those carbon-fiber prosthetic legs allow people run *really* fast? It's like a spring, no? I don't see how they can argue there is no advantage?
Dear David Lat/ATL/Marc Edelman,
Please, for the love of all that is holy in the world, ditch that clipart. It's either me or the clipart. One of us HAS to go.
Sincerely,
NYU 3L
I think the IOC looked into the prosthetic legs and concluded that they provided an advantage. Basically they're like springs--they don't allow him to start faster, but his stride's more efficient once he gets going. That should be the end of it.
IIRC, one of the arguments Pistorius's people made was that his running is all under his own power (i.e. there are no motors). True, of course, but the same is also true of a bicycle, and no one is allowed to compete against distance runners by using a bicycle.
NYU 3L, it's been good knowing you. I'm not sure that you've contributed anything to ATL other than your recent complaint about the clip-art, but you will be missed. Your admirable stand on principle is an inspiration to us all. Farewell.
Sadly, this is a case where there are no winners.
There's little serious question the prosthetics DO provide a competitive advantage in certain kinds of races (of course there are disadvantages also for certain distances or race condition as well). But at the same time, can you blame this guy for trying to compete despite his handicap?
Either this kid loses his chance and the Olympic Committee looks bad for depriving him a chance, or they grant him the opportunity at the disadvantage of able-bodied sprinters.
why does atl have a piece with even one citation on it? i'm with 11:42, this is a gossip site. i definitely don't visit as often as i used to.
At this point, we can only assume the repeated use of the hideous clip art is an active affront to the multitudes who've protested it.
The stride alone these prosthetics provide is significantly longer than an able-bodied runner's stride. If you go to this guy's wiki site, you will see that he has broken every record in the 200 and 400 meter and other distances as well. Clearly there is an advantage here.
I don't agree with what he's trying to do. I understand it, but I think he should have the where-with-all to know that his prosthetics provide an advantage and, therefore, it simply would not be fair to compete among able-bodied runners. I mean, would he not think he won because of his prosthetics? C'mon.
12:29. Preach on!
I liked ATL when it was more Jerry Springer(ish) and less Dr. Phil.
Dear Self-Appointed Ombudsman,
The expression is "I couldn't care less" not "I could care less".
i second the clipart comment
The clip art is cute.
Dear 1:41:
Maybe you are SEN. Both expressions are perfectly acceptable.
12:41 - those world records are for a double amputee, you idiot, not for competing against athletes with two legs.
The parts we're born with tend to tire and to get injured. The bionic ones don't tire and can be swapped out when they break. That, in itself, is an unfair advantage.
It's too bad this guy is an amputee, but most people can run all they like and aren't even going to win an age-group award at the local Y race. There's no Constitutional right to us to compete in the Olympics. Even if everybody's kids gets a trophy at Little League.
Dear 1:41:
Self-Appointed Ombudsman here. I agree with your statement, and hereby revise my Ombudsman's Column to note that "I could care less that 1:41's mother licks goat balls."
ATL Reader / Self-Appointed Ombudsman
The bionic ones also don't stress the heart or lungs, so he has greater stamina. "Real" legs need blood and oxygen going to them to work.
2:22: Yes, I know. But, the recorded times are faster than the times of able-bodied athletes. Get it now, fucko?