Sports and the Law: Pistorius is Finally Free to Run
I previously wrote (here and here) about Oscar Pistorius, the Olympic hopeful who was ruled ineligible to compete in the Beijing Games by the International Association of Athletics Federations (“IAAF”) because he uses Cheetah Flex-Foot prosthetic legs. With help from Dewey & LeBoeuf (disclosure: my previous employer) as his pro bono counsel, Pistorius recently challenged the IAAF’s ruling in the Court of Arbitration for Sport.
On Friday, a three-person arbitration panel ruled in Pistorius’s favor, finding that Pistorius’s prosthetics do not provide him with “an overall net advantage” in violation of IAAF Rule 144.2(e). This opens the door for Pistorius to compete in South Africa’s Olympic trials using his prosthetics. The panel reserved the right to change its ruling if new scientific evidence emerges.
With this matter resolved for now, let’s take a look at the big winners and losers from the litigation:
Big Winners
Oscar Pistorius: Finally eligible for South Africa’s Olympic trials, the Blade Runner is a step closer to competing against the world’s finest. In addition, he is also a step closer to earning the kind of endorsement dollars that would make even Dan & Dave envious.
Ossur HF Company: The Iceland-headquartered supplier of the Cheetah Flex-Foot prosthetics is gaining all kinds of free publicity. Most of us have now heard of the Cheetah Flex-Foot. Can anybody name a competitor prosthetic? I didn’t think so.
Dewey & LeBoeuf: Forget the goodwill that comes with pro bono representation. By winning this case, Dewey & LeBoeuf has expanded its sports-law footprint across the Atlantic Ocean, as well as opened the door to secure new business in international sports arbitration.
Debevoise & Plimpton: Real kudos goes to the Court of Arbitration for Sport for their gutsy and articulate 18-page decision that does not pull its punches with the IAAF. David W. Rivkin, a partner in the New York and London offices of Debevoise & Plimpton, was one of the three named arbitrators in this dispute. His work could only look good for the firm.
Read the rest, after the jump.
The Biggest Loser
IAAF: Not only did the arbitration panel rule against the IAAF, but the panel’s opinion made the association look as foolish as Craig Ehlo trying to guard Michael Jordan. The panel found the IAAF rule banning Pistorius was “a masterpiece of ambiguity” and procedurally “off the rails.” It also called into question many of the IAAF’s specific decisions, including (1) to vote on Pistorius’s eligibility over a single weekend, (2) to count abstention votes as votes against Pistorius, (3) to tell the press that Pistorius would be banned even before voting occurred, (4) to ask scientific experts to test Pistorius’s performance only in straight parts of the run, and (5) to ask scientific experts to analyze advantages, but not disadvantages, of Pistorius’s prosthetics.
The Jury’s Still Out
DLA Piper: To quote Rosie Perez’s character from the hit 1992 movie White Men Can’t Jump, “sometimes when you lose, you really win.” DLA Piper represented the IAAF in this matter and lost the case. However, between representing the IAAF here and working on Baseball’s Mitchell Report last December (George Mitchell is a partner at DLA Piper), the international law firm is positioning itself to grow its sports practice.
South Africa Tourist Bureau: Most human interest stories about Pistorius seem to describe South Africa in a positive light. This may help tourism. At least, it certainly can’t hurt.
2008 Olympic Broadcasters and Sponsors: While Pistorius still has to improve his time to qualify for the Beijing Olympics, one can expect a ratings boom if he ultimately qualifies. This story has great human interest appeal. (Heck, we’ve covered it three times, and some of our readers don’t even like people).
Olympic Dream Stays Alive, on Synthetic Legs [New York Times]
Double-Amputee Pistorius Wins Right to Run with Cheetahs; Most Offensive Metaphor in a Disability Case Ever? [Sports Law Blog]
Earlier: Sports and the Law: Oscar Pistorius’s Claim has Strong Legs to Stand On
Sports and the Law: From Pistorius to the More Ridiculous, Disabled Athletes Seek New Rights
* * * * *
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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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?
It's just you they don't like Edelman, they're fine with people generally. You're a self-important poser.
From the NYT article:
"The I.A.A.F. sponsored three days of testing on Pistorius, who gave his consent, in Cologne, Germany, under the supervision of Peter Brüggemann, a professor at the German Sport University."
"Brüggemann found that the Cheetah prosthetics were more efficient than a human ankle. He also found that they could return energy in maximum speed sprinting and that Pistorius was able to keep up with a few able-bodied sprinters while expending about 25 percent less energy."
these ATL posts are always stupid
these ATL posts are always stupid
I'm thinking about getting metal legs. It's a risky operation, but it'll be worth it.
Cheetah Flex Foot -- sounds like a stripper move. I prefer the motorboat and toe touch however.
My shaolin style beats your Cheetah Flex Foot style.
-Michael Scott
Regardless of the statistics on whether he has an unfair advantage, this is one of those "I know it when I see it" instances where he just shouldn't be permitted to compete. What's next, discus competitors with robotic arms, swimmers with mechanical fins instead of legs, etc.? Inspiring story, but that doesn't mean he belongs in the games.
1:25, you must be a litigator (i.e., a little soft in the noggin). If he can show that he has no advantage over other competitors, why shouldn't he be able to compete?
1:30, how can he possibly have shown that he has no advantage over other competitors? Because his legs were amputated when he was very young, there is no data on his speed in the 400 meters with real (i.e. not prosthetic) legs. It might be that, had he kept his legs, he would have been incredibly slow. It also might be the case that he would have been blazingly fast with real legs. But really, we have nothing other than speculation to go on, and certainly, if it is Pistorius who bears the burden of proof, he cannot meet it with mere speculation.
1:45, there's a difference between "mere speculation" and scientific evidence that favors (or doesn't) a proposition. Just because it is impossible to actually measure this guy's running speed on real legs doesn't mean it is impossible for him to demonstrate that the fake legs give him no net advantage.
The fact finders here evidently found that (i) it is possible to determine whether the fake legs give him an unfair advantage and (ii) in fact the fake legs do not give him an unfair advantage. None of this involves mere speculation.
By your standards, every criminal trial involves mere speculation because the jury did not actually witness the alleged crime take place.
1:30 -- you must be a complete idiot (i.e., a complete idiot).
"Brüggemann found that the Cheetah prosthetics were more efficient than a human ankle. He also found that they could return energy in maximum speed sprinting and that Pistorius was able to keep up with a few able-bodied sprinters while expending about 25 percent less energy."
What about the above do you not understand? He's running on things that are more efficient than the human body.
Moron.
1:45 nailed it. We will never know if this guy is a world class runner with two real legs because he never had two real legs. It isn't possible to level the playing field for everyone, so we shouldn't even try. Sports, by their very nature, are not subject to accommodation such as the prosthetic leg here. Some people are blessed with natural ability beyond others, something that can only be proven on the track/field/etc. Some of these people are further blessed with an athletic career free from major injuries while others, who are merely victims of circumstance, will suffer injuries that will prevent them from realizing their natural potential. It sucks, but it's true.
Hey 2:01, try reading the whole article. The rest of the article states that (i) Pistorius convinced the court that the Bruggerman test did not accurately state the full situation and (ii) the court ultimately ruled that he had no unfair advantage.
See this part of the article:
"In overturning a ban imposed by the International Association of Athletics Federations, track and field’s governing body, the court deemed that there was not enough evidence to prove that Pistorius’s flexible j-shaped blades, attached below his knees, gave him an advantage."
I accept your apology.
1:57,
Your analogy makes little sense to me. In a criminal trial, there may be a serious dispute over whether an event (a crime) actually happened. Here, all are in agreement that an event (Pistorius running with real legs) did not ever happen. Yet the panel reaches its conclusion based on speculation as to how the event would have happened had it ever happened. That is clearly speculation, whether it is based on some sort of scientific evidence or not.
Even worse, the conclusion was reached that Pistorius did not have an advantage over other runners by comparing him to comparable runners. This is tautological.
1:57,
Your analogy makes little sense to me. In a criminal trial, there may be a serious dispute over whether an event (a crime) actually happened. Here, all are in agreement that an event (Pistorius running with real legs) did not ever happen. Yet the panel reaches its conclusion based on speculation as to how the event would have happened had it ever happened. That is clearly speculation, whether it is based on some sort of scientific evidence or not.
Even worse, the conclusion was reached that Pistorius did not have an advantage over other runners by comparing him to comparable runners. This is tautological.
-1:45
2:18, you need to brush up on epistemology. In short, just because you believe an inquiry involves "speculation" doesn't mean that it is not worthwhile and cannot arrive at truth.
Also, the criminal trial analogy works very well here because both involve a court trying to arrive at truth with no direct evidence. Just like everyone in the Pistorius case agree that he never could run with real legs, everyone in a criminal trial agrees that the jury was not there to witness the acts that allegedly took place or the defendant's state of mind during the commission of those acts.
2:31,
The problem, of course, is how you want to define "truth." I am positing that the so-called "truth" about Pistorius's natural speed is both unknown and unknowable. i don't know about you, but I have a hard time calling that truth. That is where your analogy falls apart: in a criminal trial, presumably the truth that the jury is seeking is actually knowable.
1:45/2:18
2:55, I again don't think you are drawing a meaningful distinction. The truth in a criminal trial is also unknowable, yet we have this process that arrives at something we call the truth.
2:55, I again don't think you are drawing a meaningful distinction. The truth in a criminal trial is also unknowable, yet we have this process that arrives at something we call the truth.
2:55 - People who use the term "positing" are douchebag law students who are proud of themselves for learning a new word. In this case, a word that signals that you are a douchebag law student.
The douchebaggery on this site never ceases to amaze me. I'm ashamed to call you all colleagues.
This is hilarious. I hope he wins. Then next year they will let some quadripilegic with a rocket engine on his wheelchair join the race, and it will all become a big joke.
"People who use the term "positing" are douchebag law students who are proud of themselves for learning a new word. In this case, a word that signals that you are a douchebag law student"
"The douchebaggery on this site never ceases to amaze me. I'm ashamed to call you all colleagues."
What, did all the Herbs convene a meeting a while back and declare "douchebag" to be the new cool word?
I hear ducks say this shit all the time now. I can't call it. Is it b/c I was born & raised in NYC? I mean, the word was cute in the 80's, and I know that shit takes a long time to go from NYC to the rest of the world. Did it take 25 years?
Or are you part of the secret Herb society and were issued a directive to use that corny ass word as much as possible until the next meeting is called, and a new word takes its place?
douchebag
douchebag
9:36 = Douchebag