January 25, 2021

Volume XI, Number 25

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January 22, 2021

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CAS Dismisses Double Amputee’s Appeal in Fight to Compete at the Olympics

A recent award handed down by the Court of Arbitration for Sport has found in favour of World Athletics in its dispute with the US Paralympian 400m sprinter, Blake Leeper, concerning the athlete’s eligibility to run against able-bodied athletes in World Athletics Series competitions as well as next year’s Tokyo Olympics.

Who is Blake Leeper?

Blake Leeper was born with fibular hemimelia, a congenital birth defect which resulted in Leeper being born without most of his calf muscles, shin bones and feet.  At the age of four Leeper underwent amputative surgery on his feet and legs so that his legs could be less awkwardly attached to his prosthetics.

Leeper began competing full-time as a sprint athlete in 2011, and won silver and bronze medals in the T44 400m and T44 200m respectively at the 2012 Paralympics in London. Leeper broke the T43 400m Paralympic world record in June 2017, by running a time of 45.25 seconds. After this, he began regularly competing against able-bodied athletes.

The Nature of the Dispute

On 3 July 2019, Blake Leeper applied to the IAAF (since renamed “World Athletics”) requesting a ruling that his racing prosthetics be allowed under IAAF Rule 144.3(d) (later Rule 6.3.4 of the World Athletics Technical Rules).

The Rule provides that:

“Any athlete giving or receiving assistance from within the competition area during an event (including under Rule 163.14, 163.15, 230.10 and 240.8) shall be warned by the Referee and advised that, if there is any repetition, he will be disqualified from that event.”

“For the purpose of this Rule, the following examples shall be considered assistance, and are therefore not allowed: […]

The use of any mechanical aid, unless the athlete can establish on the balance of probabilities that the use of an aid would not provide him with an overall competitive advantage over an athlete not using such aid.”

World Athletics denied Leeper’s application on 18 February 2020, on the basis that Leeper had not met his burden of proof in demonstrating, on the balance of probabilities, that the use of his racing prosthetics would not provide him with an overall competitive advantage over an athlete not using such prosthetics.

Leeper subsequently appealed this decision to the CAS on two grounds. These were:

  1. That the provision placing the burden of proof on Leeper to demonstrate that he was not provided with an overall competitive advantage, is unlawful.
  2. That World Athletics was incorrect in finding that Leeper’s racing prosthetics provided him with an overall competitive advantage.

The CAS Verdict – Burden of Proof

In their consideration of the first ground, the CAS found that it was necessary to firstly determine exactly what the World Athletics Rule meant.

Leeper advanced a literal reading of the Rule, and argued that the Rule required a comparison to be undertaken between the disabled athlete wishing to use the mechanical aid and an able-bodied athlete who is not using such an aid. In contrast, World Athletics advanced a purposive approach, and argued that the Rule required a comparison between the likely performance which the disabled athlete would achieve while using the mechanical aid and the performance the same individual would have been able to achieve if they had intact biological legs.

The CAS explained that the exact nature of the comparative exercise was unclear, and cited the lack of definition of “overall competitive advantage”. The CAS panel found that the interpretation of the Rule must therefore be informed by its overall purpose. As a result, the Rule was held to require a comparison between the athlete’s likely athletic performance when using the mechanical aid and their likely athletic performance had they not had the disability which necessitates the use of that aid, in order to establish whether the mechanical aid gave the athlete an overall competitive advantage.

The CAS found that although on its face the Rule applied equally to all athletes, it was indirectly discriminatory. This was because, in its practical application, the Rule was likely to affect a much greater proportion of disabled athletes than able-bodied athletes. Following the approach in previous CAS jurisprudence (such as the July 2015 Chand award and the April 2019 Semenya award), this meant that World Athletics bore the burden of establishing that the Rule was a necessary and proportionate means of attaining a legitimate objective. A legitimate objective was found to exist, namely ensuring fairness and integrity of competitive athletics by guaranteeing that the outcome of World Athletics-sanctioned competitions was determined by competitors’ talent, training and effort rather than the use of mechanical aids.

This led the CAS to assess whether the Rule was necessary, reasonable and proportionate in pursuing that legitimate objective.  On this point the CAS decided that the Rule was neither necessary, reasonable nor proportionate for the following reasons:

  • World Athletics’ argument that the athlete is best able to gather and explain the evidence was not persuasive, given that World Athletics would have had no difficulty in obtaining data regarding the athlete’s performance if it bore the burden of proof.
  • World Athletics reliance on the ‘precautionary basis’ had little application in the context of this dispute.
  • Placing the burden of proof on the athlete imposes an onerous practical burden on them, in terms of time and expense, as they are required to prove a negative as well as obtain and analyse detailed scientific evidence. This was seen by the CAS as having a prohibitive effect.
  • The World Athletics’ Rules do not provide for a structured process or timetable to follow in determining whether the athlete has met the burden. This causes a lack of clarity and significant risk of unreasonable delay.
  • Given the substantial disparate impact which this Rule has on disabled athletes, it is not proportionate for any doubt to be resolved against the athlete.

Therefore, the Rule was held to be unlawful and invalid insofar as it placed the burden of proof on the athlete in question.

The CAS Verdict – Overall Competitive Advantage

The question which the CAS had to determine was whether Leeper’s racing prosthetics enabled him to run faster 400m times than he would have been able to achieve if he had intact biological legs.

On this point, Leeper submitted expert evidence based on a range of laboratory tests conducted on him, which was prepared by Dr. Alena Grabowski. These tests led to the conclusions that:

  • Leeper is 1.41 seconds slower during the acceleration out of the starting blocks over the initial 100m compare to non-amputee sprinters.
  • Leeper would likely be 0.40 seconds slower than non-amputee athletes around an outdoor track curve.
  • Leeper could therefore theoretically run a 400m race 1.81 seconds faster if he had intact biological legs.

World Athletics had not produced its own scientific data regarding Leeper’s performance, but contrary to Leeper’s submissions, this did not prevent World Athletics from being able to discharge its burden under the Rule. It was deemed sufficient by CAS that the World Athletics experts had analysed the data generated by Dr. Grabowski’s evidence.

The CAS held that it was common ground between the parties that the same basic physics apply to amputee runners and able-bodied runners (i.e. that a person’s running speed is determined by a combination of contact length, contact time, step frequency and ground reaction forces). It was also held to be common ground that Leeper’s racing prosthetics caused him to start the 400m race slower than if he had intact biological legs.

Given that Leeper’s personal record over 400m is 44.38 seconds, the CAS panel found that if he ran 1.81 seconds faster with intact biological legs (as per Dr. Grabowski’s expert evidence), he would run in 42.57 seconds, almost half a second faster than the current world record. Dr. Grabowski’s expert evidence also provided that an able-bodied Leeper would be capable of running the 100m almost a tenth of a second faster than the current 100m world record.

The CAS panel found this analysis difficult to accept. Therefore, they instead broke the question of overall competitive advantage into two parts. Firstly, did Leeper’s racing prosthetics enable him to run tall? Secondly, if they did, did this unnatural running height enable Leeper to achieve faster times than he could achieve if he had intact biological legs?

Dealing with the first question, the CAS held that Leeper’s running height when using his racing prosthetics was 189.2cm. If he were competing in Paralympic events, he would have to comply with the World Para Athletics rules concerning Maximum Allowable Standing Height (MASH). In line with this rule, he would not be permitted to run at a height of above 174.4cm, representing an approximate difference of 15cm. Although the MASH rules do not govern World Athletics events, they were considered in this case as an objective and reliable indication of Leeper’s likely maximum height if he had intact biological legs. Given that Leeper ran at a height which was significantly taller than his MASH height, he was held to be running unnaturally tall.

With regards to the second question, the CAS referred to the ‘cogent evidence’ provided by World Athletics’ experts, which established a close correlation between an athlete’s leg length and their ground contact length. Ground contact length is the distance which a runner’s body travels while their foot is in contact with the ground. The CAS panel agreed that ground contact length is a direct determinant of running speed. Therefore, the CAS found that Leeper’s increased height and limb length enabled him to run several seconds faster than the fastest time he would be able to achieve with intact biological legs.

Moving Forward

As the situation currently sits, Leeper will be unable to participate in the delayed Tokyo 2020 Olympic Games using his current racing prosthetics.

Since the award, Leeper has raised fresh allegations that the decision was racially discriminatory, as “no Black people were represented in making the MASH standards”, and therefore

Leeper was subject to artificial height limitations in the proceedings which were based solely on the body proportions of Caucasian and Asian athletes. It has also been confirmed by Leeper’s legal team that he will be appealing the CAS award to the Swiss Federal Tribunal.

World Athletics has issued a press release welcoming the CAS ruling and has confirmed that it will review the respective provision of Rule 6.3.4 which places the burden of proof on the athlete in question. In the press release, World Athletics strongly rejected the fresh allegations concerning the Paralympic MASH rule being racially discriminatory.

This article was written by Simon Watts-Morgan.

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© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 329
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