Classification rules are legally abusive in an essential point.
The International Olympic Committee has lost the lawsuit LG Cologne 33 O 187/23, judgment of 12 September 2024, against the US American David Berling, represented by WIESCHEMANN Rechtsanwälte. The ruling had been announced at the oral hearing on 4 July 2024. The IPC was concerned that it would have to cancel the Paralympics.
For background information, see https://wieschemann.eu/en/david-berling-vs-international-paralympic-committee-2/
The subject of the dispute is that the IPC prohibits its member associations in the classification rules from granting an athlete, whose competitive chances are thwarted by an incorrect classification decision in favour of a competitor, effective legal protection against the decision that does not affect the athlete himself but rather the competitor. The court ordered the IPC, under threat of a fine of up to €250,000, not to apply or enforce this provision. As a result, the IPC must create the possibility of having the classification, and thus the assignment of a competitor to a particular sports class, reviewed in a formal procedure at the request of a competitor.
The exact wording is:
The defendant is prohibited, on pain of a fine to be set by the court for each case of infringement of up to €250,000 – or, in the alternative, imprisonment – or imprisonment of up to six months, to be enforced against his legal representative, from applying the Classification Code of the defendant in Art. 13, in Art. 13.1.1 and 13.1.2 and the International Standard for Protests and Appeals of the defendant in Art. 2 and 3 to the extent that the participation in events of the Para Sport is made dependent on the recognition of such rules, which the UCI has implemented by way of example in Art. 16.4.020 of the UCI Para Cycling Regulations, according to which the participants are not authorised to have the classification, and therefore the assignment of a competitor to a particular sports class, objectively reviewed in a formal procedure.
The judgment follows the decisions of the Cologne District Court (33 O 59/22, Hernandez v IPC) and the Düsseldorf Higher Regional Court (judgment of 20 January 2022, VI-6 W 1/22 (Cartel), Huckaby v IPC), both represented by Christof Wieschemann, on the reviewability of the classification rules by state courts and the Higher Regional Court of Düsseldorf, judgment of 1 February 2023 – 1 U (Kart) 7/21 Brasil v IPC, represented by Alexander Engelhard, on the scope of the right to due process in the law of sports federations.
While in the Brasil case, the Düsseldorf Higher Regional Court considered it unlawful to curtail the athlete’s right to justice in connection with his own classification, the Cologne Regional Court goes further. The athlete is also entitled to have control over the classification of his opponent, because the plaintiff’s chances are diminished by the restriction of his legal protection options in connection with the classification of athletes with whom the plaintiff is in competition.
The IPC’s conduct is also abusive under the standards of the Federal Constitutional Court (BVerfG, Chamber Order of 3 June 2022 – 1 BvR 2103/16, para. 36 et seq. at juris, Pechstein). According to the weighing of interests required under both Section 19 (2) no. 2 GWB and Section 19 (1) GWB, abusive behaviour is present because demanding an agreement that excludes the verifiability of the classification decision contradicts the general legal value decisions and for this reason alone cannot be justified by objective reasons.
Even though it is unfortunately to be assumed that Paralympic sport will once again fall out of the public eye after the end of the Paris 2024 Paralympics, the significance of the proceedings goes beyond the individual case and also beyond Paralympic sport. The situation in which a competitor’s chances are affected by a decision made by the association regarding the opponent’s eligibility to participate is more the rule than the exception. This applies to every licensing decision in team sports such as football and handball, but also to classification decisions. So far, competitors have generally had no way to appeal against such (wrong) decisions.
Wrong classification decisions, whether fraudulently brought about as a misrepresentation or through no fault of one’s own due to structural weaknesses in the classification system, are the greatest challenge for Paralympic sport.
The International Paralympic Committee must face up to its responsibility and create effective legal protection for the athletes involved. Only this will improve the quality of the classification system and create more fairness in competition.
We can only advise all athletes who feel that their chances are affected because they have to compete against opponents who have an advantage due to false decisions by the association, which cannot be overcome with training and technology, to file a protest.