November 30, 2020

Volume X, Number 335

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Breaking stride? Elite running shoes back in the spotlight

New records

Issues surrounding athletics footwear returned to the spotlight this month as two athletes wearing new models of Nike running spikes ran in world record times at an event in Valencia, Spain.

Uganda’s Joshua Cheptegei and Ethiopia’s Letsenbet Gidey broke the men’s 10,000 metre and women’s 5,000 metre world records respectively wearing Nike’s ZoomX Dragonfly shoes at a meeting in Valencia, Spain.

Meanwhile, men’s marathon world record holder and Nike poster-boy Eliud Kipchoge completed the London Marathon wearing Nike’s Alphafly NEXT% shoes – the first time he has worn a version of the controversial shoes in an official race. Despite being surprisingly beaten to victory by Shura Kitata, it was notable that Kitata was also wearing Nike shoes (albeit from the Vaporfly range).

The four fastest official times in men’s marathon history have been set by athletes wearing the shoes since Kipchoge set his world record of 2:01:39 in September 2018.

Commentators are asking: is it still possible for runners wearing competitor brands to compete with Nike-sponsored athletes at the top level? Critics argue that Nike’s range of high-specification shoes – including the Dragonfly spikes for track races and Vaporfly and Alphafly ranges for road running – offer their athletes an unfair advantage. Among other features, the shoes’ soles include a spring-like carbon-fibre plating that assist with stabilising the shoe and directing momentum forwards during each stride.

In setting a time of 26 minutes 11 seconds in the men’s 10,000 metres, Cheptegei’s achievement comes seven months after he had also set the record for the men’s 5 kilometres road record in a time of 12 minutes 51 seconds. On that occasion, he was wearing Nike’s Vaporfly shoes, which received the implicit approval of World Athletics in January 2020 when it released new rules on shoe specifications.

Despite attempts by World Athletics to clarify the parameters on which footwear is permitted, the issue remains live and is likely to remain so until after the Tokyo Olympics, expected to be held in the summer of 2021.

Competitive advantage?

Although technological progression in athletics footwear is nothing new, the issue of footwear has been on the agenda recently for athletics’ governing body – who rebranded from the IAAF to World Athletics in October 2019 – in recent years. Since Nike’s Vaporfly range was introduced in 2016, times set by elite long distance runners have fallen, with records taken by Nike shoe wearing athletes. The issue was brought to mainstream media attention in September 2018 when Kipchoge broke the world record wearing Vaporfly – little more than a year after setting a faster, albeit unrecognised, time in Nike’s well-documented “Breaking2” project. Meanwhile, Vaporfly-wearing Brigid Kosgei took the women’s marathon world record in 2019’s Chicago Marathon by running a time almost 90 seconds quicker than the record Paula Radcliffe had set at the same event 16 years previously.

A day earlier, Kipchoge ran the world’s first unofficial sub-two-hour marathon in Vienna wearing Nike’s “Alphafly NEXT%” prototype shoes, although the effort did not count as an official world record owing to Kipchoge’s use of multiple pace-keeping runners and a pursuit vehicle.

Some have raised questions about the “fairness” of Nike’s footwear technology. In the wake of Kipchoge’s and Kogsei’s efforts, World Athletics announced a panel to investigate its rules on footwear and established the Working Group on Athletic Shoes after receiving complaints from present and former athletes. American runner Ryan Hall said at the time that the Nike shoes were no longer a shoe, but “a spring” that offered a “clear mechanical advantage to anyone not in those shoes.”

In January 2020, World Athletics introduced prescribed parameters as to the composition of athletic footwear. This came after extensive discussions within its Working Group on Athletic Shoes – which included input from manufacturers themselves, through leading industry body the World Federation of the Sporting Goods Industry (WFSGI). The rules focused on the maximum thickness of athletic shoes’ soles. After being updated over the summer, the rules now state that for “road events” such as marathons, the maximum thickness is 40 millimetres, while for track events such as 100 and 200 metre sprints, the limit is set at 20 millimetres. The rules also introduced a ban on shoes with multiple carbon-fibre plates: each shoe could contain no more than one such plate.

Nike has not released the specifications of the shoes worn during Kipchoge’s sub-two-hour effort, but there is unverified speculation that the prototype worn included three carbon-fibre plates under the front of the shoe. The plurality of the plating is where experts decided to draw the line. Indeed, analysis of filings with the US Patent Office conducted by the blog site “Believe in the Run” revealed that Nike’s prototype design included, inter alia, a segmented forefoot which enabled multiple carbon-fibre plates to interact with cushioning pods. The plates help wearers to adopt a forward motion, which athletes have described as akin to running downhill. Studies have shown that the plates enable runners to reduce the amount of energy expended with each stride. With each added plate, the effect is amplified.

Furthermore, the increasingly widespread use of prototype trainers by the top runners, unavailable to non-sponsored athletes and well out of the reach of everyday joggers, meant that the use of prototypes was also on the agenda. With the Tokyo Olympics on the horizon, World Athletics decided to take action.

World Athletics’ rule changes

As mentioned, in January 2020, the body issued rule amendments which prescribed specification parameters and prohibited the use of prototype shoes in competition. It ruled that any shoe must have been available for purchase by “any athlete on the open retail market” before it can be used in races.

The rules also introduced an “indefinite moratorium” on any shoes which did not meet the following requirements: (1) the sole must be no thicker than 40 millimetres; (2) the shoe must not contain more than one rigid embedded plate or blade of any material; (3) for a shoe with spikes, an additional plate or other mechanism is permitted, but only for the purpose of attaching the spikes to the sole, and the sole must be no thicker than 30mm.

An amendment to the rules released in July appears to confirm that the allowance for spikes has since been reduced to 25 millimetres for track events of 800 metres and longer, and 20 millimetres for track events under 800m.

The practical effect of the rules means prototype shoes are banned. World Athletics President Sebastian Coe said at the time of the announcement: “It is not our job to regulate the entire sports shoe market”, adding: “we don’t believe we can rule out shoes that have been generally available for a considerable period of time, but we can draw a line by prohibiting the use of shoes that go further than what is currently on the market while we investigate further.”

Kipchoge’s prototype Alphafly shoe  – with its alleged multiple layers of carbon plating – would be prohibited if worn today. Proponents of the rule changes suggest that this is likely to reduce the competitive advantage offered to sponsored athletes able to wear bespoke footwear equipped with the latest technological advances, as all shoes worn in elite competition must be available on the retail market.

On the other hand, the new rules did not outlaw Nike’s Vaporfly range and its DragonFly spikes, which critics argue continue to favour athletes sponsored by providers able to use the latest patented technologies.

With the Tokyo Olympics postponed until next summer, World Athletics has put the debate on hold, freezing the current regulations in place. This allows athletes and manufacturers to prepare for the Olympics and Paralympics in the knowledge that the prescribed criteria for athletics footwear are set in stone until at least the end of August 2021.

Referring to the existing parameters as “transitional rules”, World Athletics CEO Jon Ridgeon said that they would allow “more time to develop a set of working rules for the long term, which will be introduced after the Olympic Games next year, with the aim of achieving the right balance between innovation, competitive advantage and universality.”

Where we are

While the banning of prototypes may go some way to addressing complaints surrounding “universality”, questions about innovation and fairness will doubtless persist.

Nike’s existing range of footwear is now expressly approved by World Athletics. This means that the recent records set by the likes of Cheptegei and Gidey will stand. With the Dragonfly and Vaporfly ranges approved for competition, continued strong performance by Nike-sponsored athletes in major events appears likely. Whether World Athletics’ approval is enough to silence the doubters is far less certain.

Former world marathon champion Rob de Castella called the shoes “ludicrous”, voicing his concerns that the shoes amounted to an “artificial performance enhancement.”

For his part, Kipchoge said last month: “We live in the 21st century, whereby firstly, we need to accept change and secondly, development goes hand in hand with technology. The shoe is good and they accepted the technology patent. We need to accept technology in our hearts and move on.”

In striking a balance between divergent views on the issue, Ridgeon said in July: “In developing these rules we have been mindful of the principles of fair play and universality, maintaining the health and safety of athletes, reflecting the existing shoe market in these challenging economic times, and achieving a broad consensus with the shoe manufacturers who are major investors in our sport.”

James Pascoe contributed to this article. 

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 300
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