Can a double amputee compete in the Olympics? Pistorius v. the IAAF before the CAS

Apologies for two sports-related posts in one day, but a fascinating, if slightly strange, decision has just been handed down today by the Court of Arbitration for Sport (CAS) in Lausanne, relating to the right of a double-amputee sprinter to compete, using specially-designed prosthetic limbs, against able-bodied athletes in sporting events sanctioned by the International Association of Athletics Federations (including, of course, the forthcoming Olympic Games in Beijing). Oscar Pistorius, a 21-year old South African sprinter, is already the paralympic world record holder over 100, 200 and 400 metres.

The case before the CAS arose over whether Pistorius' use of the prosthesis known as the Cheetah Flex-Foot contravened IAAF Rule 144.2, which was newly amended in March 2007 (with, in the view of the Arbitration Panel at least, Pistorius' particular case in mind) to prohibit, inter alia,

(e) 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 IAAF then conducted a series of scientific tests on Pistorius in 2007, in order to determine whether his prosthetic limbs did in fact give him such an advantage, culminating, in January 2008, with an IAAF Council Decision (no. 2008/01) that

a. running with these prostheses requires a less-important vertical movement associated with a lesser mechanical effort to raise the body, and

b. the energy loss resulting from the use of these prostheses is significantly lower than that resulting from a human ankle joint at a maximal sprint speed.

On this basis, then, the IAAF concluded that the Cheetah Flex Foot was a device prohibited under Rule 144.2(e), and thus banned Pistorius from participating in international sporting events that it sanctioned. The case before the CAS raised three points, each of which is of direct and significant interest from a global administrative law perspective (see para. 53 of the Decision):

1) Was the process leading to the IAAF Decision procedurally unsound?
2) Was the IAAF Decision unlawfully discriminatory?
3) Was the IAAF Decision wrong in determining that the use of the Cheetah Flex Foot contravened Rule 144.2(e)?

It's hardly necessary, but to frame this in terms of global administrative law in particular, we have the administrative action of a private global regulatory body (the IAAF) affecting the interests of a private individual (Pistorius) held to account ex post by a private arbitration tribunal (the CAS). In many ways an entirely "private" dispute, then; yet the influence (we may even say the application) of the rules and mechanisms of public administrative law is simply undeniable. The three issues dealt with in the case run the whole range of those commonly raised in terms of court-based oversight of administrative action: the formal, due process question; the human rights-based non-discrimination question; and even the the possibility of a critical re-evaluation of the substance of the administrative decision in question. (Indeed, had counsel for Pistorius not dropped (see para. 55) his initial claim - that the IAAF didn't have the jurisdiction to adopt the decision in the first place - we would also have had a consideration of ultra vires, making a pretty complete set of administrative oversight questions).

Procedure
The actual Panel Decision itself is no less interesting than the facts promised it would be. The Panel spends some time dealing first with the procedural issue (paras. 56-71), and finds it wanting in a number of ways: finding that, for example, the second set of scientific tests was limited to finding only if the athlete had an advantage the part of the race in which he was strongest, and did not consider the balance of advantage and disadvantage over the race as a whole (para. 61); that the scientific experts nominated Pistorius had been denied participation, having effectively been "frozen out" of the testing process (paras 62-63); that the IAAF voting procedure was rushed and otherwise unsatisfactory, in that insufficient and inaccurate information was given to the IAAF Council (paras. 64-67); and that there was evidence of prejudice among some leading IAAF officials (para. 68).

There are two points of great interest in the Panel's Decision in this regard. Firstly, it seems clear that, despite the private nature of all parties involved, there is a public law sensibility being applied to the issue of procedural propriety. There is no attempt to evaluate the conduct of the IAAF according to its own standards (or those of an implied "contract" between that Organization and Pistorius); rather, the evaluation is informed by a more general sense of "fairness" and community expectation:

In the Panel's view, the manner in which the IAAF handled the situation of Mr. Pistorius in the period from July 2007 to January 2008 fell short of the high standards that the international sporting community is entitled to expect from a federation such as the IAAF (para. 77).

The second interesting, if slightly odd, feature of the Panel's Decision on the procedural issue is that, immediately after having made this finding, they go on to conclude that it "makes little difference, if any, to the outcome of the appeal" (para. 78). The proceedings before the CAS in this case were a de novo process, in which the facts are to be evaluated anew, "in a judicial manner", on the basis of the evidence and submissions of the parties in the case. The question remains, then, of why the Panel spent the time it did making the finding that the IAAF process was insufficient, only to find this issue irrelevant to the case...

Non-discrimination
Pistorius also argued that the IAAF Decision breached the legal requirement of non-discrimination, in that they did not seek to find an appropriate alternative solution to allow him to participate in IAAF-sanctioned events on an equal basis with all able-bodies athletes. Interestingly, the Panel deals with this (presumably pursuant to Pistorius' claim) in terms of the newly in force Convention on the Rights of Persons with Disabilities (see my earlier post on this Convention here).

The issue was not, however, whether the Convention was binding directly on the IAAF, but rather (apparently, the Decision isn't very clear on this point) whether it could be said to form part of the law of the Principality of Monaco, to which the IAAF is subject (as it has its seat there). This seems like an extremely weak argument, and was dismissed by the Panel. Not only did the Convention only enter into force in May 2008 (after the contested IAAF Council Decision in January), but Monaco has neither signed nor ratified it. Moreover, the Convention requires only that States "take appropriate measures" with "a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities". Hardly directly effective, or even particularly mandatory, language; and in any event, the "equal basis" requirement is precisely the question at issue in the contested IAAF Decision. All in all, then, the non-discrimination claim here seems to have been a bit of a non-starter; the attempted reliance on the new Convention is interesting, if a bit... odd.

Substance
Entertainingly, the Panel derides the amendment to IAAF Rule 144.2 ("without implying any criticism of the draftsman") as being a "masterpiece of ambiguity" (para. 80). In general, however, they find that the advantage conferred must be an overall net advantage; the fact that the prostheses help in one part of the race must be balanced against any part in which they are a hindrance (i.e. the Cheetahs help Pistorius gain speed over the final straight, but they actually impede his speed over the first 200 metres compared to an able-bodied athlete. This must be taken into consideration, and wasn't in the key stage of the IAAF's scientific testing). There was agreement that the burden of proof fell on the IAAF in the case, and that the relevant standard of proof was the "balance of probabilities" (paras. 86-87). On the basis of the scientific evidence available, the Panel concluded that the IAAF Decision had failed to satisfy even this burden of proof; on this basis, it revoked Decision 2008/01 with immediate effect, allowing Pistorius to compete in international IAAF-sanctioned sporting events.

An interesting judgment, then (even if the Panel insisted (paras. 101-104) on limiting any precedential value by stressing that this judgment applies only to this particular athlete using these particular prostheses; and that, moreover, should new evidence come to light, the IAAF would be entirely entitled to reintroduce its prohibition), and one that demonstrates with exceptional clarity the relevance of public, administrative law mechanisms to even ostensibly entirely private realms of global regulatory governance.