Is it time for a CAS ad hoc Division at the Paralympics?

Published 20 October 2012 | Authored by: Kevin Carpenter

Before the London 2012 Paralympic Games ('the Games') began this summer I attended a talk by Michael Beloff QC, a leading sports law practitioner and prominent Court of Arbitration for Sport ('CAS') arbitrator, titled 'CAS and the Olympics 2012'. At the end of his review of the cases before the CAS ad hoc Division ('AHD') at the Olympics a question was asked, "Is there going to be an AHD at the Paralympics?" He replied that there wouldn't be because the International Paralympic Committee ('IPC') had not asked for one.

At the time I thought this was a little surprising but I had never watched a Paralympics before. As I watched and became engrossed by the Games I began to really doubt the wisdom of the IPC in asking CAS to be "relevant" (whatever that means) but not "present" at the Games.

The most obvious area in which an AHD would be of benefit at the Games is in relation to classification appeals. The systems used to classify athletes to compete according to their level of disability is fundamental to the Games and accordingly is the most contentious aspect of the Paralympic movement. Classification controversies just at London 2012 have led people to question the IPC's credibility and the credibility of the Games themselves. A high profile instance being Oscar Pistorius who, having been beaten by Alan Oliveria in the T44 200m final, made the somewhat disingenuous claim that the Brazilian's longer blades were unfair although they had been cleared as legal by the IPC.

Yet the most baffling was US swimming star Mallory Weggemann whose classification was altered on the eve of the Games after evidence was presented to the IPC claiming she was not in the correct class. Classification can be challenged either by the athlete themselves or by rival competitors who believe an opponent is taking part in the wrong class. How can this be fair when she will have trained hard for four years to compete against what she thought had been the 'correct' class of athletes, on the biggest stage of all, only then to be competing against a class of less severely disabled athletes?

Currently classification appeals are heard by an IPC Board of Appeal for Classification ('BAC') whose decisions are not appealable to the CAS. The BAC's governing bylaws can be found here. Bylaw 11 allows for an expedited procedure under BAC ad hoc rules at the Paralympics so athletes do have an avenue of recourse if they feel wronged by the IPC's Classification Committee. However to my mind one can question the BAC's independence thereby prejudicing its credibility. Especially as Bylaw 6 says that the BAC shall be made up of one chairperson and two others, with the appropriate skills and experience, appointed with the sole discretion of the chairperson.

One argument the IPC may make is that members of CAS do not have the 'appropriate skills and experience' to hear appeals on the highly technical and specialised arena of classification. However CAS is the ultimate arbiter of doping appeals, isn't that also a highly technical and specialised area? Also there is little comparison to be had between the IPC BAC and CAS AHD in terms of independence, given that the latter has a list of arbitrators decided by the independent International Council of Arbitration for Sport and each side is allowed to appoint an arbitrator.

A CAS AHD would also be well placed to hear appeals during the Games on similar lines to the plethora of issues that have come before them over many Olympics. For instance on doping matters or, for the Paralympics, on disability discrimination.

In deciding to write this post I did not set out to be unmerciless in bashing the IPC as it does a lot of difficult yet important work, particularly in relation to classifications, but I think it would be positive, for reasons of independence and credibility, if at some stage between now and 2016 they gave a call to Lausanne and ask for some ad hoc assistance for the Rio Paralympics.

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About the Author

Kevin Carpenter

Kevin Carpenter

Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.

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