The Court of Arbitration for Sport (CAS) announced on October 26 that it has invalidated a rule adopted by World Athletics (formerly “IAAF”) — the international sports federation governing track & field — which imposed the burden of proof on disabled athletes that required them to prove that their prostheses do not provide them with an overall advantage against able-bodied athletes.
Winston & Strawn LLP, which advocated for the decision, called the decision “a very important victory for all disabled athletes, as the panel found it to be unlawful and a discriminatory violation of the World Athletics Constitution to require disabled athletes to meet such an onerous burden before they can compete against able-bodied athletes.”
The firm pointed to the panel’s finding: “the IAAF’s discussions surrounding the enactment of the Rule were mainly focused on the perceived negative implications of disabled athletes competing with prosthetic aids against able-bodied athletes, with little or no discussion of how the participation of such disabled athletes could be facilitated without compromising fairness.” Further, the IAAF had an “apparent lack of attention and concern regarding the impact of the Rule on the rights and interests of disabled persons” which the panel found was “regrettable,” with the IAAF giving the rights and legitimate interests of disabled persons only a “secondary consideration.” The arbitration panel thus struck from the rule the language imposing the burden of proof on the athlete, concluding that “the Rule is unlawful and invalid insofar as it places the burden of establishing the absence of an overall competitive advantage on the athlete who is seeking to use a mechanical aid,” and “the IAAF bears the burden” of establishing that any disabled athlete who wishes to use prosthetic aids in order to run against able-bodied athletes derives an overall competitive advantage from the use of the particular prosthetic aid.
Firm Challenges CAS’ Individual Ruling on Another Matter
While the firm credited CAS panel with making “the correct decision on the Rule,” it suggested it “veered sharply off course” on another when it conclude that a “disabled athlete who brought the arbitration — 400m double-amputee sprinter Blake Leeper — should not be permitted to compete on his prostheses against able-bodied athletes because he purportedly runs at an ‘unnaturally’ tall height. Specifically, the panel decided that because Mr. Leeper’s prostheses were set at a height greater than the current Maximum Allowable Standing Height (MASH) that Paralympic organizations have used for various events, it would be unfair to permit him to run at this height against able-bodied athletes. This part of the decision was racially discriminatory and thus against public policy.
“Mr. Leeper is an African American. The MASH height limits, by contrast, were exclusively derived from data on the height proportions of Caucasians and Asians. As a result, the MASH height limits do not account for the fact that Black athletes may have different height proportions and should not be required to run at heights that may not be natural to them. These points of racial bias were presented to the CAS panel, but were ignored. The ruling was especially unjust since World Athletics’ own experts have admitted that ‘it is not known if the equations [in one of the studies upon which the new MASH limits are based] are predictive of stature in other populations” and have even conceded that their work “would perhaps be strengthened from future studies with an internationally representative sample.’ There was thus no scientific or reliable basis to apply these height limitations to a Black athlete like Mr. Leeper, whose prostheses were otherwise found by the Panel not to provide any competitive advantage. And, the MASH height rules have never been adopted by World Athletics, and have never been applied to able-bodied athletes.”
Winston & Strawn LLP, which is representing Leeper on a pro bono basis, promised its client “will file a legal action to challenge this racially discriminatory decision of the CAS panel to preclude him, as a Black athlete, from competing at the same height, on the same prostheses, that he has been using in world competitions for five years. He has already met the qualification time to run in the Tokyo Olympics, which is his dream, and he will not give up his fight to compete against able-bodied athletes on the Olympic stage on the basis of a racist study that does not include any data from Black athletes in its database. Indeed, the height at which Mr. Leeper runs on his prostheses is comparable to the height at which other world class able-bodied 400-meter athletes run and he does not have any competitive advantage running without biological legs at that height, which has not been shown to be unnatural for him as an African-American athlete.”
The firm’s team will be led by partners Jeffrey L. Kessler, David Feher, Michael Stepek and Mathilde Lefranc-Barthe. They will be supported by the expert testimony, provided on a pro bono basis, of Dr. Hugh Herr of the MIT Media Lab and Dr. Alena Grabowski of the University of Colorado Boulder Applied Biomechanics Lab, and by the scientific research done at the University of Colorado Boulder by Drs. Grabowski, Owen Beck from Georgia Institute of Technology and Paolo Taboga from California State
“The CAS panel’s two rulings are incongruous with each other,” said Kessler. “On the one hand, the panel strikes down a World Athletics Rule which it finds to be discriminatory against the rights of disabled athletes to compete against the able bodied. This was a just decision which we salute. On the other hand, the same panel issued a decision authorizing an even more insidious form of racial discrimination — against Black disabled athletes — by finding that their prosthetic limbs are subject to artificial height limitations based solely on the body proportions of Caucasian and Asian athletes. Data from Black athletes were not even considered in these studies, as if these athletes did not exist. It is ironic that Blake Leeper, who has been fighting for the rights of disabled athletes of every race, now finds himself the victim of discrimination against Black disabled athletes. We do not believe the courts will tolerate such discriminatory treatment and we will support Blake as he continues his fight to compete in the Olympics.”
