On 23 October 2020, a panel of the Court of
Arbitration for Sport (‘CAS’) rendered
an award in the matter opposing Mr Blake Leeper (‘Mr Leeper’ or ‘the
Athlete’) to the International Association of Athletics Federation (‘IAAF’).[1]
The CAS panel was asked to make a ruling on the validity of the IAAF rule that
places on a disabled athlete the burden to prove that a mechanical aid used to
compete in IAAF-sanctioned competitions does not give such athlete an overall
competitive advantage.
The award is remarkable in that it declared
the shift of the burden of proof on the athlete invalid, and reworded the rule
so that the burden is shifted back on the IAAF to show the existence of a
competitive advantage. Thus, while the IAAF won its case against Blake Leeper
as the panel found that the sport governing body had discharged its burden in
casu, the outcome can be viewed as a victory for disabled athletes looking
to participate in IAAF-sanctioned events. It remains to be seen how this
victory will play out in practice. Beyond the immediate issue at stake, the
case further presents an illustration of how – all things equal – assigning the
burden of proof can be decisive for the real-life impact of a policy involving
complex scientific matters, as much as the actual legal prerequisites of the
underlying rules.
This article focuses on some key aspects of
the award that relate to proof issues in the context of assessing competitive
advantage. Specifically, the article seeks to provide some food for thought
regarding burden and degree of proof of an overall advantage, the contours of
the test of ‘overall advantage’ designed by the CAS panel and its possible
bearing in practice, and potential impact of the ruling on other areas of
sports regulations such as anti-doping.
The award also analyses broader questions
regarding the prohibition of discrimination in the regulation of sports, as
well as the interplay with international human rights instruments such as the
European Convention on Human Rights (‘ECHR’), which are not explored in depth here.
1. Some background: from Pistorius
to Leeper
In 2008 already, a CAS panel was asked to
look into the requirements for participation of disabled athletes using
mechanical aids in IAAF-sanctioned events. Oskar Pistorius, a bilateral amputee
and track runner using a carbon fibre prosthesis, claimed the right to compete
in IAAF track events along ‘able-bodied’ athletes. The IAAF refused his participation,
relying on a newly introduced rule prohibiting use of technical devices that
give an athlete an advantage over other competitors, more specifically:
“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” (IAAF Competition
Rule 144.2(e), at the time).[2]
As a result, Oskar Pistorius brought the
matter before CAS. Though the rule contained no explicit allocation of the
burden of proof, it was common ground among the parties that the burden of
proof was on the IAAF to prove the existence of an ‘advantage’.[3]
As regards the standard of proof, the CAS panel determined that it would apply
the ‘balance of probabilities’ standard, since it did not regard the issue as a
disciplinary one that would mandate a higher standard, such as ‘comfortable
satisfaction’.[4]
Though Pistorius underwent a series of performance tests supervised by the
Sports University in Cologne, Germany, the CAS panel deemed the scientific
evidence produced inconclusive. Specifically, to the panel, the evidence did
not allow for a sufficiently robust conclusion that Pistorius enjoyed an
overall net advantage over able-bodied competitors. Thus, Pistorius should not
be prevented from competing at IAAF-sanctioned events.
Shortly after the Pistorius award, the IAAF
amended its Competition Rules with a view to having the burden of proof shifted
to the athlete claiming the right to compete with mechanical aids. Since then,
the rule – in its version still applicable in the Leeper matter (the rule is
enshrined today in the World
Athletics Technical Rules, Rule 6.3.4) – has provided that receiving assistance
during an event is not allowed, including:
“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” (Rule 144.3(d); emphasis added).
That shift of burden quickly showed very tangible
effects. In 2016, Markus Rehm, a German long jumper and single-leg amputee,
using the same type of prosthesis, set out on an attempt to achieve
qualification for the Rio Olympic Games. Studies were again conducted at the Sports
University in Cologne that had already produced the expert report for Oskar
Pistorius. The research conclusions were that it was impossible to tell with certainty
whether the prosthesis conferred Markus Rehm an overall advantage in long jump.
However, due to the regulatory amendment, this inconclusiveness now weighed
against the athlete. After an IAAF
June 2016 meeting in which no vote was finally declared on the issue, IAAF
President Sebastian Coe commented: “Rehm still has to prove that the prosthetic
doesn’t give him an unfair advantage and he has not been able to show that”.
To the best of the author’s knowledge,
Markus Rehm never took formal legal action against the sports authorities and
finally renounced seeking a selection to the Rio Olympic Games. The discussion
announced in Summer 2016 with the IAAF never appears to have produced outcomes either,
so that the new version of the rules and its effects had not been subject to
the scrutiny of a judicial body so far.
More than ten years after Oskar Pistorius
obtained the right to compete under the former IAAF rules, Blake Leeper – a
bilateral amputee track runner specialising in the 400m - applied in July 2019
to the IAAF for a ruling that the prothesis he uses in pursuit of his
qualification for the 2020 Olympic Games is allowable under IAAF Rule 144.3(d).[5]
In February 2019, after various exchanges between the parties and upon Mr
Leeper submitting the results of various tests, the IAAF denied his
application.[6]
Mr Leeper appealed the IAAF decision to the CAS.
2.
The reasoning of the CAS
panel in the Blake Leeper award
In its analysis of Blake Leeper’s case, the
CAS panel proceeded in three steps:
- i.) determining the proper
construction of IAAF Rule 144.3(d);
- ii.) assessing validity and
lawfulness of the provision that imposes the burden on the athlete to establish
absence of an overall competitive advantage; and
- iii.) considering the findings on the
previous points, deciding whether Mr Leeper should in casu be entitled
to compete at IAAF-sanctioned events using his prosthesis.[7]
In short, after defining an appropriate ‘test’
for presence (or absence) of an overall competitive advantage, the CAS panel
found that it was not admissible for the rule to place on the athlete the
burden to establish the factual prerequisites for such test. The CAS panel then
reworded the rule by ‘deleting’ the parts related to the burden of proof, thus in
effect shifting back the burden to the IAAF as per the former version of the
rule applicable in the Pistorius matter. Nevertheless, considering the evidence
on the record, the CAS panel found that in the particular matter the IAAF had
met such burden, so that Mr Leeper could not be allowed to compete at
IAAF-sanctioned events with his current prostheses.
The main legal issue at stake in the award
was the validity of a provision that places the burden on the athlete to
establish an absence of overall advantage achieved through the use of a mechanical
aid.
The award contains some noteworthy
reasoning regarding the parties’ respective burden of proof with respect to the
general validity of rules enshrined in sports regulations. The CAS panel
proceeded along the lines adopted in previous cases in which a discrimination
was invoked: referring explicitly to the proceedings involving Dutee Chand and
Semenya Caster,[8]
the panel described the analysis as a two-step one:
- i.) “the party seeking to
challenge an allegedly discriminatory regulation bears the burden of the establishing
that the rule discriminates on the basis of a protected ground”;
- ii.) if so: “the burden of proof
shifted to the IAAF to establish that the regulation was necessary, reasonable
and proportionate”.[9]
Regarding the rule at stake, the panel
found that, while “neutral on its face (in the sense that it applies to all
athletes equally and irrespective of any disability), the practical effect of
the Rules is likely to be significantly greater for disabled athletes than
able-bodied athletes.”[10]
Thus, the rule was characterised as “indirectly discriminatory”,[11]
so that the panel proceeded to assess whether the IAAF had demonstrated that
the provision on the burden of proof pursues a legitimate objective and is
proportionate. Turning to this central issue, the CAS panels analysed the
following elements:
In a first step, the CAS panel supported
the argument whereby
“an international sports governing body
such as the IAAF is legitimately entitled to take the view that fairness
requires that the outcome of competitive athletics should be determined by
natural physical talent, training and effort, and that athletes should
not be able to use artificial technology
during competitions in a way that provides them with an overall advantage over
athletes who are not using such technology. The Panel considers that this is
particularly so where (as here) the mechanical aid is one that most athletes
would not, in practice, be able to utilise” (emphasis added).[12]
On the other hand, the panel declared
itself mindful that disabled athlete such as Blake Leeper would be “unable
to participate at all in IAAF-sanctioned events in circumstances that would
enable their results to be ranked alongside their fellow able-bodied
competitors. A rule which was specifically designed to prevent disabled
athletes from competing in IAAF-sanctioned events could not be said to pursue a
legitimate interest” (emphasis in the award).
While deploring that the IAAF seemed to
have given little weight to facilitating participation of disabled athletes (“it
is apparent to the Panel that the rights and legitimate interests of disabled
athletes were, at best, a secondary consideration in the IAAF’s regulatory
decision-making”),[13]
the arbitrators declared themselves nevertheless satisfied on balance that the
rule was intended to pursue the legitimate objective of ensuring the fairness
and integrity of competitive athletics.
On the issue of proportionality, the panel
started by acknowledging that there is a potential at least that prosthetic aid
could enable disabled athletes to run faster than if they had fully intact
biological legs. The panel then reviewed the arguments specifically put forward
by the IAAF:
- i.) The first principled argument
was that an exception to the ‘normal’ eligibility requirements justifies placing
a burden on athletes to establish “granting the exception sought will not
undermine the objectives on which that rules is based”.[14]
The CAS panel refused the analogy claimed by the IAAF to the ‘precautionary
principle’, but accepted that there was a valid analogy to some extent to the
TUE regime, with the reservation that TUE regulations were not designed
specifically with disabled athletes in mind, and thus there was nothing to
suggest that the TUE regulations have any disparate impact upon disabled athletes;
- ii.) The second argument, of a
practical nature, was that athletes are in a better position to provide the
evidence regarding any advantages and disadvantages they derive from the use of
the mechanical aid. The panel did not consider this argument “a particularly
persuasive reason”,[15]
given that the IAAF could obtain at least evidence regarding performance in
competitive races, and an athlete who would refuse without justification to
give data to the IAAF could see adverse inferences drawn against him or her.
The panel continued that there were, on the
other hand, a number of factors pleading against the burden of proof provision
being a proportionate solution; most notably, the “onerous practical burden”
that the rule imposes upon disabled athletes:
“Such an individual is required, in effect,
to prove a negative: namely, that they derive no overall competitive advantage
from having prosthetic rather than biological limbs. As the materials presented
by the parties in this appeal amply demonstrates, the factual and scientific
enquiries necessarily entailed by that requirement are multifaceted and complex”.[16]
In addition, the CAS panel emphasised that
the IAAF failed to provide for a “clear, accessible and structured process
that must be followed” by the disabled athletes to obtain a determination
on their participation.[17]
Finally, the panel considered that “when dealing with a rule that has a
substantial disparate impact on disabled athletes, it is neither necessary nor
proportionate for any doubt to be resolved against the disabled athlete”.[18]
Based on the reasons stated above, the
panel concluded that the rule was to be declared unlawful and invalid with
respect to its allocation of the burden of proof. As a result, the CAS panel
declared the part-provision of the rule related to the burden of proof to be “deemed
deleted”,[19]
rewording the rule as unauthorised assistance including
“The use of any mechanical aid, unless
[text deleted] on the balance of probabilities [text deleted] the use of an aid
would not provide them with an overall competitive advantage over an athlete
not using such an aid”.[20]
While this article does not further
elaborate on the discrimination question, it is noteworthy that back in 2008,
the panel in the Oskar Pistorius matter dismissed the athlete’s argument of
unlawful discrimination after a summary assessment, based on the fact that: “disability
laws only require that an athlete such as Mr Pistorius be permitted to compete
on the same footing as others”, adding that the issue before the panel was
precisely to decide whether the athlete was competing on an equal basis using
his prostheses.[21]
The panel in Pistorius thus focused almost entirely on whether Pistorius, in
casu, met the requirements set up by the rule in place, without questioning
the rule itself. The fact that a legal submission which could be dismissed in a
few paragraphs as barely relevant in 2008 was considered worthy of an in-depth
discussion spanning several pages in 2020 does point to a heightened awareness
of issues of discrimination and willingness of CAS panels to deal with these
issues, which represents an encouraging signal for the sports community and
advocates of human rights in sports.
3.
Defining the proper test
for an ‘overall advantage’
The panel spent considerable time on the
interpretation of IAAF Rule 144.3, pondering on the appropriate test for evaluating
an overall performance advantage, especially ‘who’ and ‘what’ to use as a
comparator for the athlete’s performance. The panel considered that this
determination must be guided by the “overarching object and purpose of the
Rule, and by the need to ensure that the Rule is not interpreted in a way that
gives rise to consequences which are absurd or unworkable”.[22]
The panel thus stressed that it would lead
to absurd results to use as a comparator either only the very best abled-bodied
athletes in the world, or the disabled athlete himself without his mechanical
aids. It would be equally unworkable, according to the panel, to look at the
likely performance of a different (real or hypothetical) able-bodied athlete, “unless
there was a principled, objective and consistent basis for determining the
identity/attributes of that able-bodied comparator”.[23]
Having considered and rejected other
constructions, the CAS panel concluded that
“The only logical, principled and
workable construction of the Rule is one that, in the case of disabled athletes
who use a mechanical aid to overcome a disability, requires a comparison to be
undertaken 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”.[24]
“A disabled athlete who uses a
mechanical aid which does no more than offset the disadvantage caused by
their disability cannot be said to have an “overall competitive advantage” over
a non-disabled athlete who is not using such an aid”.[25]
The test thus differs from the one
conducted by the CAS panel in the Pistorius matter, that sought to identify
whether the device gave Oskar Pistorius an advantage “over other athlete not
using the device”.[26]
In the case of Pistorius, actual comparative tests had been performed by
Cologne using a control group of able-bodied athletes, and in fact the wording
of the rule at the time explicitly referred to comparison to “another
athlete not using such a device” (emphasis added, see Section 2 above).
These selection of this control group was not assessed in detail in the Pistorius
award, possibly because the panel found that the scientific experts had not
been asked by the IAAF to assess the relevant question, i.e. whether the
athlete enjoyed an ‘overall net advantage’ – including all advantage and
disadvantages – over able-bodied athletes.
Though possibly the most ‘pragmatic’ interpretation
of the rule and one adapted to the specificities of the case, the construction
chosen by the panel in the Leeper award creates a standard for mechanical aids
that is very focused on the situation of disabled athletes, and which will have
to be further exemplified and circumscribed in future. The panel did insist
that there is an “obvious desirability of a rule that is specifically
tailored to the use of prosthetic aids by athletes”,[27]
and criticized the IAAF’s choice “to shoehorn such athletes into a wider
rule concerned with the use of mechanical aids in general”.[28]
In a press
release following the award, the IAAF (newly, World Athletics) took note of
the panel’s findings and announced that it will work on reviewing its rules.
In fact, a redrafting would be desirable just
from a perspective of legal predictability and regulatory technique. The rule
as reworded through deletion by the CAS panel remains unsatisfactory in its
design: the rule sets positive prerequisites (‘use of a mechanical aid’), and a
negative prerequisite (‘unless no overall competitive advantage exists’).
Negative prerequisites of this kind are generally interpreted as signifying an
exception to the general rule, meaning that the burden of proof is on the party
seeking to claim the benefit of such exception.[29]
A good illustration is the way CAS panels have placed the burden on the athlete
to show ‘compelling justification’ for refusing to submit to testing in
anti-doping matters, even in the absence of an explicit attribution of burden
of proof, simply based on the rule’s structure.[30]
Redrafting the rule in such manner that its construction positively shows that
the burden is on the sports governing body to show the presence of an overall
advantage would almost inevitably suppose a separate rule to be created for
mechanical aid used by disabled athletes.
Another difficulty is that the test as
designed by the CAS panel results in a comparison that is in essence
hypothetical – if not metaphysical –, and may thus prove difficult to translate
into scientific terms amenable to testing: unlike studies that can actually
measure performance against other ‘real’ competitors, there is no
straightforward empirical way to compare an athlete with his fictional
able-bodied ‘self’. In fact, in the case of Blake Leeper, the analysis
conducted proved a largely non-empirical one and was facilitated by the panel choosing
a single criterion (i.e. running height) that required no empirical assessment
of performance on the track (see Section 5 below).
Beyond the technical issues above, it is
hard to imagine how the test proposed by the CAS panel could find application
to other instances of mechanical aids. ‘Disadvantages’ that originate in
natural physical traits are commonplace among athletes (some may be at a
natural disadvantage due to their smaller-than-average size, due to their body
proportions, due to their muscle fibres or cardiovascular characteristics,
etc.). It would seem unimaginable that mechanical aids be in future declared
admissible as long as they just compensate such physical ‘disadvantage’ that an
athlete would have compared to an average opponent.
The CAS panel in the Pistorius matter had
insisted that “disability laws only require that an athlete such as Mr
Pistorius be permitted to compete on the same footing as others”.[31]
One may wonder whether the panel in Leeper did not implicitly go a step beyond
that objective: insofar as it defines the same (fictional) athlete himself,
without the disadvantage derived from his disability, as the upper benchmark to
limit performance enhancement through mechanical aid, the panel’s reasoning
amounts to creating a right to compensate for natural disadvantages that
able-bodied athletes do not enjoy.
This position presupposes in addition the
existence of a difference of nature between a normal ‘below average’ athlete on
the one hand, and an athlete with a disability or other physical condition, on
the other hand. In this respect also, the scope of the panel’s ruling would
have to be better defined. In particular, the panel never went into the
category of the ‘disabled athlete’ who should benefit from the right to offset
their disadvantage in comparison to their hypothetical able-bodied self. Should
only athletes who fulfil the conditions of an ‘Eligible Impairment’
for purposes of participation in Paralympic sports – including Paralympic
Athletics – be authorised to compensate their disadvantage? Should certain other,
non-eligible impairments and medical conditions also qualify, and according to
what criteria? There will inevitably be value judgements involved in
distinguishing between a disadvantage that represents a genuine disability creating
a right to compensation, versus a disadvantage that results merely in a
sub-standard physical ability that is part of an individual’s characteristics and
which simply makes the athlete ill-suited for (specific) sports.
4.
Expectations on the
scientific evidence to assess the overall advantage
Various arguments discussed by the panel
demonstrate sympathy for disabled athletes, including recognition of the insurmountable
hurdle that a burden of proof on scientific issues may constitute for such
athletes. The panel took the view that an athlete could not be reasonably
expected to carry such a heavy burden. These expressions of sympathy could be
of relevance for cases in other areas of sports regulations, highlighted in Section
6 below.
Predictably, in all but the exceptional
case, the outcome of studies would result in an inconclusive state of evidence.
In this constellation, the burden of proof becomes the main – if not the sole –
determinant of the outcome: it decides which party carries the risk of
scientific uncertainty. In certain situations, what is formally a rebuttable
presumption may thus turn de facto into an irrebuttable one.[32]
As mentioned (see Section 2 above), in both
the case of Oskar Pistorius and Markus Rehm, studies of the athlete’s
performances did not allow for a clear-cut conclusion. The two cases were fairly
similar in terms of scientific assessment. The difference was a purely legal
one, namely: under the new version of the rule enacted by the IAAF and applied
to Markus Rehm, an inconclusive state of scientific evidence had to lead to
decide against the athlete’s participation.[33]
In the matter of Blake Leeper, the panel reversed
the effects of the amendment made by the IAAF after the Pistorius award: this
means that disabled athlete are now admitted to participate in IAAF-sanctioned
events with mechanical aids, in all but the exceptional situation in which the
scientific evidence could clearly show an overall advantage.
The perhaps most surprising element of the
case is that the Leeper matter turned out to be one of these ‘exceptional’
cases, and the manner in which the CAS panel reached its conclusion. When
applying the test to Blake Leeper, the evidentiary burden on the IAAF indeed appeared
much lighter than what the panel described as the enquiries that athletes would
have to conduct in order to even stand a chance of discharging their burden.
When weighing in on the heaviness of the
burden for athletes, the CAS panel had stressed that assessing whether a
mechanical aid confers an overall competitive advantage would suppose “obtaining,
analysing and presenting […] complex scientific data”, which “is likely
to be challenging, expensive and time consuming”.[34]
The arbitrators listed a number of
enquiries that such a determination would entail:
“it will typically be necessary to
obtain, analyse and present detailed and highly technical scientific evidence
concerning metrics such as the biomechanics, acceleration, maximum velocity,
sprint endurance, curve-running, running economy and aerobic capacity (and,
potentially, other metrics too). It will also be necessary to establish
(insofar as this is scientifically possible) how each of those metrics would
differ if the individual in question had biological legs rather than prosthetic
limbs, and how those actual and hypothetical metrics compare to the other
able-bodied athletes who compete in the same event”.[35]
Admittedly, the assessment was facilitated
by the fact that Blake Leeper had actually undergone a series of tests as part
of his seeking to discharge his burden of proof, so that the IAAF had the
benefit of the resulting data. The arbitrators themselves noted that it would
be rather unusual for a party to be able to discharge a burden of proof without
having proactively submitted any scientific evidence of their own.[36]
Upon closer scrutiny, however, the
results of these tests do not even appear to have been decisive for the panel’s
ruling. Ultimately, the assessment was reduced to one single question, with two
sub-questions: i.) does Mr Leeper run ‘unnaturally tall’ on his prosthesis, and
ii.) does this give him any performance advantage?
The first question was resolved through the
so-called MASH (‘Maximum Allowable Standing Height’) rule: a formula applied in
Paralympic competitions which allows for an estimation of the maximum height
that a Paralympic runner is allowed to run at on his prostheses in the context
of Paralympic sports.[37]
Blake Leeper’s prostheses placed him well above (i.e. by 15cm) the MASH height
so determined. The panel treated this as indication that Leeper runs at a
height substantially taller “than his height if he had intact biological
legs, with a generous margin of appreciation for the diverse shapes and sizes of
the human body”.[38]
The second question was equally resolved by general biomechanical
considerations: the panel found that the empirical evidence produced by the
athlete was inconclusive on this point, and the panel was willing to follow the
IAAF’s experts that “there is a direct relationship between leg length and
running speed”.[39]
Thus, using two simple mathematical formulas
and without truly exploiting the results of the tests conducted on Leeper, the
panel was able to conclude that:
“by virtue of the fact that he uses RSPs
that enable him to run at a height that is several inches taller than his
maximum possible height if he had intact biological legs, Mr Leeper is able to
run the 400m event in a time that is several seconds faster than the fastest time
he would have been able to achieve with intact biological legs”.[40]
In effect, the CAS panel was thus able to bypass
almost entirely the findings of the studies conducted by and on the athlete –
after brushing aside the peer-reviewed study on the record – to focus
exclusively on the opinion of the IAAF experts rooted in the general biomechanics
of running. It is unlikely that a CAS panel would easily be able to reproduce that
straightforward a benchmark in future cases with different disabilities. Also,
it could prove important to monitor in practice what expectations panels will
put on the IAAF in individual cases, and what expectations it will place on
athletes in terms of duty to cooperate to the evidentiary process, to ensure
that the allocation of the burden of proof will not be undermined by its
application in practice.
5.
Impact of the award
beyond mechanical aid
A shift in the burden of proof is a common
tool used in sports regulations for issues that require complex scientific
proof: for example, when a CAS panel in the Veerpalu v. FIS matter determined
that it was upon the anti-doping organisation to establish the validity of its
analytical methods and decision limits used, the prompt reaction in the review
process of the World Anti-Doping Code (‘WADA Code’) ongoing at the time was to
introduce a provision shifting that burden to the athlete (Article 3.2.1 WADA
Code).[41]
Other well-known reversals of this kind in anti-doping matters include establishing
a departure from applicable testing or analytical procedures (Article
3.2.2/3.2.3 WADA Code), or the presumption resulting from the report of an
adverse analytical finding, which requires the athlete to adduce evidence
regarding the manner in which a prohibited substance came to enter his or her
body in order to establish absence of or low fault. [42]
The parallels are even more striking with
the WADA system for obtaining Therapeutic Use Exemptions (‘TUE’). The WADA
International Standard for Therapeutic Use Exemptions (‘ISTUE’) provide
that athletes have to establish the requirements for obtaining a TUE, by a
balance of probabilities, one of these requirements being:
“The Therapeutic Use of the Prohibited
Substance or Prohibited Method is highly unlikely to produce any additional
enhancement of performance beyond what might be anticipated by a return to the
Athlete’s normal state of health following the treatment of the acute or
chronic medical condition” (ISTUE 4.1(b)).
In the Leeper matter, the panel accepted
that there was a “certain analogy to be drawn” with TUE regulations. However,
the panel appeared to consider that there was nevertheless a material
difference between the situation of disabled athlete using mechanical aids and
athlete requiring a TUE:
“the regulations governing TUEs were not
specifically enacted with disabled athletes in mind. Unlike the Rule under
consideration here, there is nothing to suggest that the TUE regulations have
any disparate impact upon disabled athletes”.[43]
Assuming there was an intent on part of the
panel to practice distinguishing here, the rationale for such distinguishing remains
obscure. It suggests that athletes suffering from permanent health conditions would
be somehow less worthy of legal protection than disabled athletes, or better
harmed with financial and expert resources. Whether disabled athletes are
affected specifically by the TUE regulations, or other athletes with acute or
chronic health conditions, does not seem to bear any relevance for the impact
of such a regulation on the affected athletes, and hence, for the proportionality
of the burden of proof.
On the contrary, the principled and
practical rationale that led the panel to find a lack of realistic prospects
for athletes to discharge that burden would apply equally in TUE cases. As
highlighted in connection with the case ISSF
v. WADA,[44]
which concerned a young shooter who proved unable to establish that the
medically necessary beta-blockers did not enhance her performances, this aspect
of the TUE requirements raises considerable issues. First, it equally supposes
proof of a negative, which ought to lead at least to the recognition of a
situation of ‘evidence necessity’ (Beweisnotstand), similar to the one
applied by the CAS panel in the WADA
& UCI v Contador & RFEC matter, to ease the burden on the
athlete. Second, establishing performance enhancement associated with use of a
substance is an onerous and often impracticable task, and a burden that WADA
itself refuses to carry, since the WADA Code claims that performance enhancing
effects cannot be challenged in court. It has been repeatedly emphasised in
WADA circles that proving performance enhancement would prove unethical and
impractical in many cases.
Specifically, this extract from the Leeper
award essentially describes the situation in which many athletes will find
themselves when faced with anti-doping proceedings:
“many, if not most, disabled athletes in
that position will not have immediate access to experts with the requisite
expertise or to appropriate testing and research facilities that enable such
data to be gathered for analysis. […] there is a significant risk that the
financial cost of obtaining the relevant data and expert analysis will be
prohibitive for many disabled athletes, and therefore they will be unable to
attempt to meet the burden imposed by the Rule […]”.[45]
For many athletes, challenging the validity
of an analytical method or decision limit, showing entitlement to a TUE, or
even just demonstrating how a substance ended up in their sample in order to
establish their absence of fault, will plainly never be a realistic option. As
the panel stressed in the Leeper case, in certain situations both fairness and access
to evidence could be adequately accounted for, on a case-by-case basis, by drawing
adverse inferences against an athlete who would refuse to cooperate with
anti-doping organisations without legitimate justification.
6. A Never Ending Story
The outcome of Blake Leeper’s battle, and
the relative ease with which the CAS panel reached its decision considering the
difficulty of its task, must be viewed as rooted in the circumstances of the
case: a clear-cut case of an athlete with a disability (bilateral amputee), a
fictional able-bodied counterpart that was relatively easy to imagine conceptually
(the same individual with biological legs), and - probably also - an athlete
who had chosen mechanical aids that made him taller than he would ever have
been with biological limbs. One may wonder how the same assessment would
concretise in other contexts and how broadly this case law would be
transposable to other cases of mechanical aid, even involving other categories
of disabled athletes. The award made thus be programmed to remain an outlier.
The panel was able to come up with a simple
operational criterion, i.e. comparing the height of the athlete when on his
prosthesis to his maximum natural height, and applying a proportionality
relationship whereby the height at which the athlete runs conditions the length
of his stride and thus his speed. In fact, to put it somewhat provocatively, following
through on the solution used by the panel would render athletic competitions meaningless,
as it would be sufficient to measure each athlete’s legs to predict the outcome
of a race.
In a broader perspective, the ruling in the
Blake Leeper matter no doubt represents a step toward inclusiveness of
athletics and sports competitions in general. The CAS panel was adamant that
sports governing bodies must not adopt rules that discriminate – directly or
indirectly – against athletes with a disability, or at least not without very
robust justification. The CAS panel also pulled the brakes on what has become
common practice when sports governing bodies stumble on issues that may be
affected by irreducible uncertainty in science, or that would require
significant evidentiary efforts: transferring these efforts onto the athletes
by attempting to shift the burden of proof in their rules. The paradox is that
the arbitrators then appeared very generous in assessing in casu the
scientific justification adduced by the IAAF to support its decision, in a way
that did not correlate with the heaviness of the evidentiary burden from which
the panel had just resolved to save the athlete.
Perhaps most importantly, the series of
cases from Pistorius to Leeper highlights that the burden of proof is a policy
choice first of all, if not exclusively. In situations that are characterized
by scientific complexity and evidentiary conundrums, the burden of proof
determines the outcome of individual cases as effectively as if the parties
were confronted with an irrebuttable presumption or legal fiction. The burden
of proof can thus be said to reflect the “institutional default” behind
the regulator’s or (here) the arbitrators’ value framework.[46]
This makes it all the more important that the administration of such burden of
proof in practice is not dealt with too lightly by panels in individual
matters.
In this regard, the series also forces us
to recognise that there is no way a level playing field can be defined through
science, or at least not through science alone. The outcome reached by the
panel in Leeper is based on a moral choice of what a ‘fair’ competition should
look like and on ideals of inclusiveness and non-discrimination. The IAAF and
the panel in Leeper invoked repeatedly in the award as the rule’s legitimate
aim that the outcomes of competitions be determined by “competitors’ natural
talent, training and effort”, as opposed to aids that confer an “artificial”
competitive advantage.[47]
However, the solution reached by the CAS arbitrators cannot be reconciled with
the legitimate aim they relied on, unless one considers that the disabled
athlete’s ‘natural’ state is his hypothetical self without the disability.
Unless one treats disability as unnatural, any mechanical aid used by a
disabled athlete to allow him to complete a 400m is necessarily ‘artificial’ to
use the language of the CAS. Here again, the panel’s reasoning – though based
at first sight on the MASH formula and objective biomechanical principles – is
in reality deeply entwined with what the panel envisioned as a ‘normal’ –
perhaps rather than ‘natural’ – human body, thus arguably a normative rather
than biological standard.
This means that it would be unreasonable to
place all expectations on science to resolve the societal dilemmas that
inclusiveness in sport creates. Instead, we are bound to continue to feel our
way forward through all conflicting interests and values at stake, continuously
renegotiating their respective importance. In fact, in its press
release acknowledging the CAS award, the IAAF mentioned newly framed claims
by Blake Leeper’s legal team that the MASH rule relies on ‘racist’ foundations.
The IAAF stressed – almost preemptively – that there is no basis in evidence to
challenge the rule, and certainly not to assume that the 15cm disparity in
height could be due to “racial differences in body dimensions”. The new
CAS precedent just established may thus prove vulnerable to challenges based on
other discrimination grounds, which are likely to trigger equally intractable
scientific questions.
As the panel in the case of Oskar Pistorius
concluded, noting that the IAAF would have to assess each athlete’s situation
in the future on a case-by-case basis: “However, if it does create an
additional burden, it must be viewed as just one of the challenges of 21st
Century life”.[48]
Apparently, the challenge has only just started.