Applicability of the prohibition of discrimination as a part of public policy in relations between individuals - the Blake Leeper case
4A_618/2020, Judgment of 2 June 2021 A v. World Athletics (formerly IAAF), appeal against the CAS Award CAS 2020/A/6807
This SFT judgment of June 2021 relates to an eligibility case involving the US bilateral transtibial amputee sprinter Blake Leeper (the Athlete) and World Athletics. The SFT proceedings were initiated against the first CAS award that was issued in 2020 but the Athlete subsequently filed a second appeal to the CAS, which was also dismissed in June 2021.
Before the CAS, the Athlete challenged the decision rendered by the World Athletics Mechanical Aids Review panel, which did not allow him to use his Running-Specific Prostheses (RSPs) on grounds that the height of the proposed RSPs gave him a competitive advantage over other athletes. The CAS Panel confirmed the Review panel’s decision, concluding that the specific RSPs gave, through extra height, a running-speed advantage, referring among others to the MASH (Maximum Allowable Standing Height) method to assess the maximum “natural” height of double amputee athletes. The Panel dismissed the athlete’s argument that such method was not validated by reference to Black athletes of African descent and concluded that, based on a balance of probabilities, the Athlete’s proposed RSPs gave him a competitive advantage, although a less-intrusive alternative did not exist.
In his subsequent motion to set aside the CAS award, the Athlete invoked among others a violation of the prohibition of discrimination under Art. 14 of the European Convention on Human Rights (ECHR), of pacta sunt servanda and of human dignity.
The SFT reiterated that the provisions of the ECHR are not directly applicable as a ground for setting aside an arbitral award in Switzerland (at 4.1 and 5.2) and recalled the very limited scope of pacta sunt servanda (which was not applicable in the present case). The SFT further dismissed the plea of prohibition of discrimination but aé,gain left unanswered the question of whether the prohibition of discriminatory measures falls within the scope of the restrictive concept of public policy when the discrimination is committed by a private person and occurs in relations between individuals.
The ECHR provisions are not directly applicable as a ground of setting aside an arbitral award in Switzerland
The Athlete also alleged an attack on his human dignity based on the fact that he, as an athlete of African or African-American origin, was forced to be measured according to the MASH rule. However, the SFT held that the CAS Panel had not determined whether the MASH rule was legally permissible or applicable to all athletes but rather concluded—in a manner that bound the SFT—that the sprinter had a competitive advantage as a result of his use of RSPs. In order to do so, the Panel considered that it was necessary to make a comparison between the Athlete’s performance with his prostheses and that which he could have achieved if he had intact biological legs, while stressing that this assessment ultimately and inevitably involved an element of uncertainty.
Note: the full Judgment is available in French at the website of the Swiss Federal Tribunal www.bger.ch. The English translations of important international arbitration decisions rendered by the Swiss Federal Tribunal (from French, German and Italian) are available on the website www.swissarbitrationdecisions.com , operated jointly by Dr. Despina Mavromati and Dr. Charles Poncet as a service to the international arbitration community.
