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CAS dismisses the 2nd appeal of Blake Leeper

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The Court of Arbitration for Sport (CAS) has dismissed the appeal filed on 1 May 2021 by US bilateral transtibial amputee sprinter Blake Leeper against the decision taken by the Mechanical Aids Review panel established by World Athletics (WA) dated 26 April 2021 in which the athlete’s 24 December 2020 application to run at WA-sanctioned events on Running Specific Prostheses (RSPs) that give him an overall standing height of 185.42 cm (6’1”) was denied. The WA panel did so on grounds that the height of the proposed RSPs conferred upon Mr Leeper an “overall competitive advantage over an athlete not using such aid” and were accordingly “not allowed” by Article R6.3.4 of WA’s Technical Rules. Accordingly, the decision rendered by the WA Mechanical Aids Review panel on 26 April 2021 is confirmed by CAS. By decision of 26 October 2020, a different CAS Panel had already ruled that Blake Leeper could not use his former running-specific prostheses (giving him an overall standing height of 189.2 cm) at WA†sanctioned 400m events, including WA Series competitions and the Olympic Games. An appeal filed by Blake Leeper against that CAS award at the Swiss Federal Tribunal was dismissed. The Panel of CAS arbitrators appointed to decide this second appeal held a hearing with the parties by video-conference on 3, 4 and 8 June 2021. The main issue to be determined by the Panel was whether WA has established that the specific RSPs proposed by Mr Leeper confer, through extra height, a running-speed advantage that Mr Leeper would not otherwise have. The MASH (Maximum Allowable Standing Height) methodology, first implemented by the International Paralympic Committee (IPC) in January 2018, is the most recent iteration of a method to assess the maximum “natural” height of double amputee athletes. It is based on an equation that adds together the lengths of his/her thigh, upper arm, forearm, and sitting height, after weighting each metric by an empirically determined coefficient. MASH also includes a pure error factor of 1.91 cm to account for normal variation. Thus, the MASH formula adds 1.91 cm to the predicted height. MASH is currently being employed to calculate the maximum permitted length of RSPs. Beyond that length, an athlete using RSPs is considered to be running unnaturally tall and therefore to have a disallowable advantage.

WA has employed the MASH methodology in Mr Leeper’s case. Mr Leeper’s MASH is 174.44 cm (5’9”), some 10 cm (2”) lower than his height on his proposed RSPs. The MASH formula was derived from a dataset underlying an anatomical study of Caucasian male and female athletes published in 2009. Its validity for that segment of the world population is not being contested in these proceedings. Before being adopted by the IPC, the MASH formula was validated through studies of small groups in Japan and Australia. This validation was on the explicit scientific premise that geographic distance, not race, is the main driver of differences in relative bodily proportions from one population to another. The scientific validity of this premise has not been challenged by affirmative evidence in these proceedings. Further, there is some evidence in the record which lends a degree of support to the proposition that the MASH methodology accurately predicts the lower-leg length of Black athletes of African descent. This evidence is however limited. In the Panel’s view, the key point about this body of evidence, limited as it is, is that it does not cast doubt on the MASH methodology, especially given the pure error factor of 1.91 cm. On the evidence before it, the Panel is therefore unable to accept the argument, put forward by Mr Leeper, that the MASH methodology cannot be considered sound unless and until it has been specifically validated by reference to Black athletes of African descent. Indeed, the scientific evidence before the Panel is that geographic distance, rather than race-oriented validation is more methodologically apt. The Panel has noted, however, the consensus among the experts that it would be sound and desirable for MASH to be specifically validated by reference to Black athletes of African descent. In the interest of avoiding future disputes, the Panel strongly encourages WA to do this, as soon as restrictions related to the COVID pandemic allow. The Panel therefore concludes that WA has demonstrated on a balance of probabilities that Mr Leeper’s proposed RSPs do confer upon him an overall competitive advantage within the meaning of Article R6.3.4 of WA’s Technical Rules. The Panel has lastly considered whether a less-intrusive alternative to disallowing Mr Leeper’s proposed RSPs such that he is ineligible to run on them is to be preferred. The Panel answered this question in the negative. The Panel has not received medical evidence that MASH-compliant RSPs would harm Mr Leeper. Nor is it the case that Mr Leeper was on lack of sufficient notice that he would have to comply with MASH. Finally, while both sides have helpfully considered alternatives to total disallowance, neither Party has identified a workable alternative nor has the Panel identified any. Accordingly, Mr Leeper may not run on his proposed RSPs at WA-sanctioned events. The CAS Panel has issued its decision only, without the grounds, which will be notified in short order.

The original decision can be found here.

 

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