April 29, 2008 5:37 PM

Dewey & LeBoeuf, DLA Piper in Swiss Court Over Amputee Olympic Hopeful

Posted by Brian Baxter

A three-judge panel of the Court of Arbitration for Sport in Lausanne, Switzerland, today began a two-day hearing to consider whether South African Paralympic runner Oscar Pistorius can participate in the Beijing Olympics.

Pistorius is appealing a January 2008 ruling by the International Association of Athletics Federations--the world governing body for track and field--that says the 21-year-old double amputee's carbon fiber artificial limbs serve as "technical aids" that give him an unfair advantage over able-bodied athletes. The ruling effectively bans Pistorius from IAAF-sanctioned events, including the Olympic games.

Mark Gay, a sports law partner at DLA Piper in London, is counsel to the IAAF before the CAS. Representing Pistorius, a Johannesburg native seeking to overturn the IAAF's decision, is an international pro bono team headed by Jeffrey Kessler from Dewey & LeBoeuf.

As cochair of the firm's global and sports litigation departments, Kessler says he was immediately interested when he heard about Pistorius's situation. "Given our deep involvement in the sports industry, I've always wanted to find a significant pro bono case where we could help a lot of people," says Kessler, who has represented the players' associations of all four major North American sports leagues on various matters. "In professional sports, there aren't that many [athletes] with pro bono needs."

Pistorius was born without a fibula--the bone between the knee and ankle--in both legs, which were amputated below the knee when he was a baby. He uses a prosthesis called the Cheetah Flex Foot, manufactured by Icelandic medical device firm Ossur. The artificial limbs are J-shaped, blade-like devices that attach to Pistorius's knees, and they've earned him nicknames like "The Fastest Man on No Legs" and "Blade Runner" as he set double-amputee world records in the 100, 200, and 400-meter events.

But last summer Pistorius began entering able-bodied competitions. After he placed in several events, some track and field enthusiasts wondered aloud whether his disability was in fact an advantage. In June 2007, the Monaco-based IAAF amended its rules to ban devices incorporating "springs, wheels, or any other element that provides a user with an advantage over another athlete not using such a device."

The IAAF then commissioned a study by German professor Gert-Peter Brueggemann, who concluded that Pistorius's racing blades allowed his body to expend less energy in a race. The study provided the basis for the IAAF's ruling in January, which was supported by the International Olympic Committee.

That's when Kessler contacted Pistorius's manager through the firm's Johannesburg office and volunteered his services. The CAS, the appellate venue for the Olympics and other major international sports bodies, granted an expedited schedule for an appeal, since Pistorius's goal is to qualify for the Beijing Olympics in August.

The D&L team, which includes litigation cochair David Feher in New York and corporate partner Marco Consonni in Milan, assembled a list of experts to refute Brueggemann's study. Pistorius's legal team also argues that since the IAAF is based in Monaco--a party to various United Nations conventions for those with disabilities--it must make reasonable accommodations for Pistorius.

"You can't just ban him," Kessler says. "The IAAF made no effort to say, 'Well, this is how the prosthesis can be modified.' It's just a pure effort at exclusion that we're hopeful will be struck down."

DLA Piper's Gay, who has represented the IAAF since the first legal challenge to its rules in 1988, says the issue is more black-and-white. "Our general contention is that, by use of the prosthesis, Mr. Pistorius gains a technical advantage, which is contrary to IAAF [rules]," Gay says. "I don't think any modifications are necessary. It's a standard prosthesis."

CAS proceedings allow each party to select an independent arbitrator to sit on the panel, which is chaired by a third individual not chosen by either side. Gay says the IAAF chose David Rivkin, a veteran international arbitrator familiar with CAS proceedings who also happens to be a litigation partner in the New York and London offices of Debevoise & Plimpton. Pistorius's legal team picked Jean-Philippe Rochat, a partner with Carrard Paschoud Heim & Partners in Lausanne, to serve on the panel. English lawyer Martin Hunter will serve as chair.

The CAS is expected to rule quickly. If Pistorius loses his appeal, the Swiss Federal Court could order a review of the results, although Gay says that findings by the arbitration panel are rarely overturned.

Even if he wins, Kessler says Pistorius still needs to cut seven-tenths of a second off his qualification time to make the South African Olympic team. "[Pistorius] knows that he can do it," Kessler says. "He just needs the opportunity to compete."

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