Oscar Pistorius is back in the news, as the International Association of Athletics Federations (IAAF) prepares to rule that the South African known as “Blade Runner,” for the leg extensions that he relies on to motor around a track, is ineligible for Olympic competition. Born without fibulas, Pistorius had both legs amputated below the knee before he was a year old. Relying on a new study, however, the IAAF apparently will exclude Pistorius under a rule that prohibits the use of “any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device.” George Vecsey of the Times, normally one of my very favorite sportswriters, reluctantly agrees with the IAAF’s position. The Blade Runner’s prosthetics “seem outside the bounds of competition.” As the headline has it (not written by Vecsey, I assume), “Admirable Spirit, but Rules are Rules.”
Fred Yen is Madisonian’s number one sports law commentator, and I don’t want to preempt anything that he might post, but my reaction is:Â Huh?Â
Vecsey trips up on the “bounds of the competition” issue by treating the character of the contest as a given. But it’s not. We see that today in baseball in the wake of the Mitchell Report. Decades ago, the late Bart Giamatti wrote “Acts of cheating destroy that necessary foundation and thus strike at the essence of a contest. They destroy faith in the games’ integrity and fairness; if participants and spectators alike cannot assume integrity and fairness, and proceed from there, the contest cannot in its essence exist.” Bart understood that the heart of the question wasn’t the existence of the rule, but the essence of the game. That question is inescapable. In PGA Tour v. Martin, the Supreme Court held that the PGA Tour’s rule barring Casey Martin’s use of a golf cart violated Title III of the Americans with Disabilities Act because cart use would not alter the “fundamental nature” of competitive golf. Justice Scalia in dissent challenged the majority’s “essentialist” reasoning: “The rules are the rules,” he wrote. But Scalia contradicted himself; he went on to disparage the idea that walking wasn’t essential to competitive golf . The only question was whether Congress and the Court should defer to the PGA’s authority to make up the rules — that is, to decide what that “fundamental nature” is.
The rules are made-up things. They’re made up to measure whatever it is we want to measure. And what do competitive sports measure? What do we (society, the Supreme Court, the IAAF, Congress) want them to measure? The answer to that quesion is the “essence” of the game, and the answer is clearly something *other* than raw athletic talent, much as we often imagine or pretend otherwise.  Tradition and history and myth all play roles, but only up to a point. Does the IAAF have the legal authority to ban Oscar Pistorius? Probably so. But it appears to be banning him because his participation exposes the mythology of “pure” talent-based competition in a particularly explicit way, and the IAAF can’t have that. The Mitchell Report is drawing Roger Clemens to Congress because if the Rocket was using, then the integrity of baseball, which Terence Mann said “reminds of us of all that once was good and it could be again,” is in jeopardy. Clemens and Pistorius are very different cases.  But they may each be sacrificed to an imaginary competitive ideal.