Pistorius decision of the Court of Arbitration for Sports

In Ableism, Disability, Enhancement, Pistorius, Sports on May 17, 2008 at 1:06 am

see here for the Court of Arbitration for Sports decision
and here the press release

My two main thoughts after reading the ruling and the press release are

1) The ruling I assume will be interpreted to be a ruling against the scientific data claiming that the cheetah legs lead to an unfair advantage. The ruling leaves the door open that one could exclude a runner with prosthetics from competing in a ‘natural leg’ running event if it can be proven that the ‘artificial’ legs lead to an unfair advantage.
This makes sense . So far the process of investigating theses new ‘artificial’ legs is not developed enough to be called a golden standard so its open for interpretations. Once tests are developed that are accepted as the golden standard and they show an unfair advantage one can see that that runner won’t be allowed to run against the ‘biological leg’ runners.

2) However the ruling seems to give the answer to another question. Are the Olympics about athletes who have a body adhering to the norm of the homo sapient species? In other words is the Olympics about athletes with a ‘normal biological body’? The ruling cements the view that the Olympics are not about biological bodies per se. So one can compete in the Olympics independent of whether certain biological parts are replaced by artificial parts.
If the replacement does not lead to a competitive advantage athletes with artificial body parts can compete against athletes where the body part in question is biological and not artificial.
If the replacement does leads to a competitive advantage one could see the ruling opening the door for the scenario where the athletes with artificial body parts compete against each others in the Olympics
whereby the artificial body parts are treated like a pole used in pole vaulting…

  1. It’s an encouraging and a sensible ruling for Pistorius, but his participation is going to be contingent.

    Having effectively ruled that the prosthetic legs do not give him an advantage is one thing, but I wonder how this will stand if he has any degree of success – the ambiguous nature of the claim will certainly be challenged (formally or in the court of public opinion) if he’s successful. For athletes who have a short window in which to compete at the Olympic level, there’s a tendency towards greater use of pre- and post-event litigation or procedural challenge. To date, this has focused on peripheral technologies (bicycle, swimsuits): the notion of another national team challenging a technology integral to your person is an extension of this, but raises new questions.

    The notion of a gold standard test for advantage is interesting, but can we really expect one to be developed that would be acceptable to participants? Even in doping (which has a longer history and more institutional incorporation into sports jurisprudence) testing results are litigated with brutal intensity, not to mention the way individuals who are placed under the spotlight are treated. Will this be different with the biomechanically modified? How complex will this be when electroactive polymers or biological components are incorporated?


  2. Peter,
    thanks for your thoughts. Well a golden standard is still needed. Its like with doping. The tests have to be accepted otherwise the results do not hold up in courts. We would see even more litigation as we see now. One has to see how that develops. But with no standard I think there will be a problem. Pistorius was the first but there will be others very fast and are already others see the Lincoln video clip I posted.
    However I do think in the future it will move towards a separate bionic event within the Olympics. In the same way that we have high jumping and Pole vaulting we might have natural leg running events and bionic leg running events. I outlined that scenario in my paper
    Oscar Pistorius and the Future Nature of Olympic, Paralympic and Other Sports
    Gregor Wolbring, pp.139-160 April 15, 2008
    SCRIPT-ed – A Journal of Law, Technology & Society

    In the end the ruling strengthened this scenario as it clearly gives the message that species typical body structure is NOT a prerequisite for being in the Olympics.
    It is exiting from a policy point of view because we are at a watershed I think and it will be interesting how it will play itself out. I would think how the public reacts will be one influential factor. If they want to see them run and …. One has to see.

  3. I think Pistorius should be allowed to compete, but I think the case opens up a much bigger can of worms.

    I struggle with the concept of “advantage” in this case and in many others. Doesn’t the athlete who WINS, in every case, have an advantage–i.e. that he has the “fastest” legs?! (Of course, he also has other features that may or may not be under his control–perhaps he trained really heroically, or came from a country with excellent athlete-support programs.) So really the bionic/non-bionic status of his legs is only one of a number of features that provide a advantage that might be “fair” or “unfair” in ways I don’t see any philosophers working out for us.

    We think that femur length is related to sprint speed (I forget how–tip of the hat to Yual Chiek, who used this example more compelling than I can recall), so why don’t we have Olympic events divided into “short femur” and “long femur”? On the other hand, we think we know that male athletes are advantaged over female athletes (in sprinting), so we separate those events for that reason. Strangely enough, when I use these examples in teaching, I find most students strongly opposed to a sex-mixed Olympics (“men would always win,” they say–falsely, I suspect) and ALSO strongly opposed to introducing segregation on the basis of other anatomical or physiological variation (if you have unfavourable femurs that is just your natural disadvantage that you should work to overcome–or not bother trying to be a sprinter). This shows, IMO, that our thinking about the very concepts of “advantage” and “fairness” are deeply confused and ad hoc, grounded much more in historical precedent and convention than in anything else.

    That is why, I think, public reaction and media coverage will be important in the Pistorius case. Because precedent and convention are being challenged, the public is likely to feel uneasy as well as excited. I guess we have to see whether excitement wins the race.

  4. Cressida,
    a few thoughts.
    Part One
    1) I do think we have gender mixed Olympics. Mixed Olympics does not mean they have to compete against each others in the same event but that they are part of the same program.
    You see if they would be gender separated Olympics we would have the male-lympics, the female-lympics and at different times. Thats what we have with so called ‘impaired people’. They are truly separated. Their event is all the time after the O-lympics.
    2) I agree with you that its really the people who will decide in the end how the -lympics of the future will look like. If people go just for performance we will see the O-lympics athletes be nearly exclusively athletes with external or internal modifications. We are at a crossroad here. If its for the spectators just about maximum performance they will make sports a vehicle for a two tiered system as existing today only the enhanced will compete in the O-lympics and the non enhanced will be in the Para-lympics. I would say this scenario goes against the O-lympic spirit as I think todays segregation does.
    The spectators have a choice. They can decide to value ‘that one tries ones best’. So its not about absolute performance but about trying ones best within ones parameters. That would mean we would have many different subclasses of events (indeed the Para-lympics has many subclasses as the variation in body shape is much greater). And one would celebrate everyone. So every one will compete within the same program of the then really O-lympics. And everyone is celebrated within their framework.
    I do not per se think that mixing within an event (like running) is necessary. What is necessary is the celebration of people performing in every event and not judging one event as inferior because the numbers might be ‘better’.
    (Part one 1 I reached the maximum words. Part 2 to follow)

  5. Cressida,
    a few thoughts.
    Part Two
    We do not diminish the high jumpers only because the pole vaulting people jump higher.
    And we should not diminish the achievement of a high jumper because a bionic leg jumper might jump higher.
    But we also should not diminish the achievement of a one leg high jumper if the jump is not as high than the two leg high jumper. And one could divide the two leg high jumpers events based on length of legs and lets them compete in different events….
    If spectators In the end decide to go for absolute performance I do think the O-lympic spirit is dead and the spectators are setting themselves up for a world of infinite out-ableing each others with a non winning rat race for abilities and a constant judgment of ones abilities. With the enhancement products on the horizon I think the world has to re-evaluate how they judge each others. Sports and the O-lympics give an opportunity to celebrate trying ones best within ones framework which I think is the only tenable way.
    To judge everyone based on the absolute best performance out I think will lead to a disaster is already a disaster.

  6. […] Arbitration for Sport, which Gregor Wolbring has discussed in earlier posts on the blog, including here. Anyone know where the video comes from? Who do you think the basic message is? What does it say […]

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