Running Down a Dream: Oscar Pistorius, Prosthetic Devices, and the Unknown Future of Athletes With Disabilities in the Olympic Games

• Publication year: 2008
• Citation: Vol. 10 No. 2008

Alexis Chappell⁰

Oscar Pistorius, a double-amputee sprinter set on competing in the Olympic Games, was banned from competition by the International Association of Athletics Federation ("IAAF") after it found his prosthetic legs gave him an unfair advantage over other runners. On appeal, the Court of Arbitration for Sport held that Pistorius had no such advantage, but the court's ruling was limited only to Pistorius and his specific prosthesis. This Recent Development describes how the court's ruling imposes substantial burdens on both athletes with disabilities and the IAAF. This Recent Development also discusses why the IAAF is not in the best position to enforce the ruling, and it enumerates remedies the IAAF can implement to resolve eligibility questions when evaluating athletes with disabilities.

I. Introduction

On May 16, 2008, the Court of Arbitration for Sport ("CAS")¹ ruled that Oscar Pistorius, a double-amputee sprinter, could compete for a place on the South African Olympic team for the 2008 Summer Olympic Games.² The International Association of Athletics Federations ("IAAF")³ initially prevented Pistorius from competing because it determined his prosthetics gave him an unfair advantage.⁴ Extensive testing commissioned by Pistorius's legal team revealed that Pistorius, who had already experienced tremendous success in the Paralympics,⁵ did not benefit from such an advantage, but the court limited its decision only to Pistorius and the specific model of prosthetic with which he wished to compete.⁶

This Recent Development argues that although the CAS ruled correctly in allowing Pistorius to compete, it imposed a substantial new burden on both disabled athletes and the IAAF. In Part I, this Recent Development describes how the IAAF prevented Pistorius from competing in track events after extensive testing of his prostheses. Part II explains how the CAS's verdict hurts athletes with disabilities and compels the IAAF to have more oversight than it is capable of having. Finally, Part III offers remedies for both athletes with disabilities and the IAAF.

II. The Path to the Court

Oscar Pistorius was born without fibulae⁷ and has used prosthetics to walk and run for most of his life.⁸ He has been racing competitively for four years,⁹ has earned four gold medals in the Paralympic Games,¹⁰ and recently achieved victories against non-disabled sprinters in South African competitions overseen by the IAAF.¹¹ Pistorius competed in these events without objection from the IAAF,¹² but the organization changed its position when it revised its rules of competition in March 2007.¹³ The altered rules prohibit 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."¹⁴ The IAAF subsequently withdrew Pistorius's invitation to a future race and, in November 2007, requested that he submit his prosthetics for testing in Cologne, Germany, to determine whether such an advantage existed.¹⁵ Pistorius filed an appeal with the CAS in January 2008¹⁶ and convened, in February 2008, his own group of experts to test his prosthetics in Houston, Texas.¹⁷

The conclusions of the two tests were dramatically different. The IAAF asked the Cologne experts to determine if Pistorius had an advantage,¹⁸ whereas the CAS later found the correct determination should have been if Pistorius had a net advantage.¹⁹ The court determined the device would be eligible under the net advantage qualification "[i]f the use of the device provides more disadvantages than advantages."²⁰ The Cologne experts found Pistorius to have an advantage, but the Houston experts found no net advantage.²¹ The conflicting results were also the unfortunate consequence of each team testing different variables.²² The CAS ruled that the IAAF failed to prove that Pistorius had a net advantage over able-bodied runners, so it declared him eligible to compete in IAAF-sanctioned events, including the time trials for the 2008 Summer Olympic Games.²³

III. Analysis: The CAS Verdict Burdens All Involved

Although the verdict of the CAS is correct in light of the evidence specific to Pistorius, the narrow holding presents numerous hurdles for other disabled athletes seeking to compete in the Olympics. The CAS ruled that its decision was limited only to Pistorius and his use of the Cheetah® Flex-Foot prosthesis and held that the ruling "ha[d] absolutely no application to any other athlete, or other type of prosthetic limb."²⁴ Contrary to the court's intent,²⁵ this decision likely imposes an encumbrance not only on the IAAF, but also on athletes with disabilities.

A. The CAS Ruling Imposes a Substantial Financial Burden on Athletes with Disabilities

The CAS ruling imposes substantial new burdens on athletes with disabilities who wish to compete in able-bodied events. Given the advances in assistive technology, there will most likely be an increase in the number of people who use prosthetic devices in athletics, perhaps eventually leading to an increase in elite athletes with prosthetics who wish to compete in the Olympic Games.²⁶ This CAS ruling provides little guidance, as even athletes who use the same model of Cheetah® Flex-Foot as Pistorius must receive IAAF's approval prior to competing in IAAF-sanctioned events.²⁷ If Pistorius decides to change his prosthetics, he again must prove that the new prosthetics do not give him a net advantage over other athletes.²⁸

The process of proving eligibility is a costly one, in terms of both financial costs and athletic setbacks.²⁹ A large international law firm³⁰ represented Pistorius on a pro bono basis,³¹ but other athletes may not be able to attract such representation without incurring excessive legal fees. In addition to the legal fees incurred, athletes may also be responsible for funding the necessary testing because the CAS failed to designate who should bear the financial burden of testing the prosthesis to determine eligibility. The IAAF incurred costs of approximately 30,000 Euros for the tests conducted in Cologne;³² the cost of Pistorius' Houston testing was likely of similar magnitude. Given the lack of direction from the CAS, athletes with disabilities may have to bear similar costs in future challenges.

Even after testing has been conducted, the path to the CAS is expensive. It costs 500 Swiss francs³³ to file an appeal with the CAS,³⁴ and when the case is heard, each side must pay in advance for "its own witnesses, experts and interpreters."³⁵ When the court issues its ruling, it can require one or both of the parties to pay for the arbitration costs, an amount that could be large, if not exorbitant.³⁶ Furthermore, since the CAS sits in Lausanne, Switzerland,³⁷ athletes and their trainers could incur substantial costs in traveling to the court as well as for their lodging and living expenses for the duration of the proceeding.

If the need for legal representation and the costs of testing and appearing before the CAS do not deter athletes with disabilities from seeking approval to compete in IAAF-sanctioned events, the missed opportunities while seeking approval may prove to be the tipping point. Pistorius lost precious training time waiting in legal limbo by the time the CAS issued its ruling, which might have contributed to his failure to qualify for the South African Olympic team.³⁸ If the CAS truly wants to ensure that qualified athletes with disabilities are eligible to compete in IAAF-sanctioned events, then the process of qualifying for competition must be streamlined to eliminate these substantial costs and delays.

B. The CAS Ruling Imposes a Substantial Burden on the IAAF

In addition to the substantial burden the court's ruling places on athletes with disabilities, the mandate that the IAAF resolve such issues in the future also imposes a substantial burden on the Association. The CAS provided the IAAF little guidance regarding procedures to follow when athletes with disabilities seek to compete in IAAF-sanctioned events.³⁹ In addition, the IAAF may not have the resources, efficiency, or neutrality required to judge disabled athletes' eligibility.⁴⁰

1. The IAAF Does Not Have the Resources or Efficiency to Make Eligibility Decisions

As stated above,⁴¹ the cost of testing athletes' prosthetic devices would be high should the IAAF have to bear this expense every time an athlete with a prosthetic device wished to...