As a result of various requests regarding the proceedings before the Cologne Regional Court in case of David Berling vs. International Paralympic Committee, we have compiled the following information about the procedure and classification in paralympic sport.
The plaintiff is a US citizen who originally studied finance and economics and holds a master’s degree. From December 2022 to April 2007, he served on active duty as officer in the US Air Force.
On 29 April 2007, he was involved in the crash of a private plane on the way to duty, as a result of which he lost both legs above the knee. He left the army two years after the accident, but continued to work as a civilian employee in the same function in procurement.
During his rehabilitation, he came into contact with para cycling, which he began to practise on an increasing scale.
He retired from the Airforce in 2014 and has been a full-time athlete ever since. He has been taking part in competitions since 2015, initially nationally and since 2017 internationally. He has been a periodic member of the US Para Cycling National Team since 2018 and takes part in World Championships and World Cup races.
The defendant is the representative of all national Paralympic committees in the world. Its purpose is to promote disabled sports worldwide and, among other things, to organise the Paralympic Summer and Winter Games, which take place every four years, and other sporting events. It is organised as a registered association based in Germany. The defendant sets internationally uniform rules for the organisation of competitions in Para sport, the recognition of which is a prerequisite for the admission of sports federations to organised Para sport.
Who represents David Berling with the procedure?
WIESCHEMANN Rechtsanwälte, Christof Wieschemann is a German legal scientist and sports lawyer with nearly 30 years’ experience mostly as athletes representatives against all great sports Federations in the world. Top 10 of Germany’s Best Lawyers 2023 & 2024 Sports Law – by Handelsblatt in cooperation with Best Lawyers
When did we file Davi Berlings lawsuit in German court?
4th July 2023
The lawsuit needed to be filed in German court because the IPC is based in Germany, is that right?
Yes, IPC has it´s seat in Bonn. Place of jurisdiction for antitrust procedures is Cologne
What was the legal argument we were making against the IPC?
We were arguing that the IPC was acting as a monopoly, in violation of the German constitution, EU treaty and antitrust law. We consider it as illegal for the IPC not to give athletes any recourse for classification decisions that created an uneven playing field.
Although we filed the lawsuit in July 2023 already, the core of our arguments is identical, which the European Court of Justice later confirmed in its judgement against the ISU in December 2023 in sports law, It was foreseeable how case law would develop :
196 The Court of Justice has held previously that, while having legal autonomy entitling them to adopt rules relating, inter alia to the organisation of competitions, their proper functioning and the participation of athletes in those competitions (see, to that effect, judgments of 11 April 2000, Deliège, C 51/96 and C 191/97, EU:C:2000:199, paragraphs 67 and 68, and of 13 June 2019, TopFit and Biffi, C 22/18, EU:C:2019:497, paragraph 60), sports associations cannot, in doing so, limit the exercise of rights and freedoms conferred on individuals by EU law (see, to that effect, judgments of 15 December 1995, Bosman, C 415/93, EU:C:1995:463, paragraphs 81 and 83, and of 13 June 2019, TopFit and Biffi, C 22/18, EU:C:2019:497, paragraph 52), which include the rights that underlie Articles 101 and 102 TFEU.
197 For that reason, rules such as the prior authorisation and eligibility rules must be subject to effective judicial review as is apparent from paragraphs 127 and 134 of the present judgment.
198 That requirement of effective judicial review means that, in the event that such rules contain provisions conferring mandatory and exclusive jurisdiction on an arbitration body, the court having jurisdiction to review the awards made by that body may confirm that those awards comply with Articles 101 and 102 TFEU. In addition, it entails that court’s satisfying all the requirements under Article 267 TFEU, so that it is entitled, or, as the case may be, required, to refer a question to the Court of Justice where it considers that a decision of the Court is necessary concerning a matter of EU law raised in a case pending before it (see, to that effect, judgments of 23 March 1982, Nordsee, 102/81, EU:C:1982:107, paragraphs 14 and 15, and of 1 June 1999, Eco Swiss, C 126/97, EU:C:1999:269, paragraph 40).
Is it accurate to say that, if David were to win his lawsuit, it would open the door for athletes to challenge the classification decisions of other athletes?
Yes
As the IPC’s rules are written today, who can lodge a complaint against a classification decision?
1) International Federations.
2) National federations and national paralympic committees but only with regard to athlete affiliated not athletes affiliated to another federation
Was it the case in the past that athletes had the opportunity to challenge another athlete’s classification? And then the IPC took away that right at some point?
Until 2007, national federations and national Paralympic committees could also lodge protests against athletes who belonged to other federations. Athletes themselves were never eligible to file a protest.
Can an athlete today approach their own sporting federation — in David’s case UCI — with a complaint about another athlete’s classification? The guess is that UCI could ignore the athlete’s complaint, but is that a possible option?
No. IPC asserted this in the proceedings in order to avoid responsibility, but in fact this is not the case. The classification code of IPC which is mandatory to be transformed in own legal framework of international federations is very clear. There are examples from other federations where protests from athletes were simply ignored.
Why do you both believe that a legal remedy for athlete is required?
Its not only our opinion. It´s the opinion of a lot of stakeholders in paralympic sports. According to the results of the survey conducted by the IPC itself in the review process false classification is considered as the greatest problem and risk for Paralympic sports. Partially it is the result of intentional misrepresentation but also of a structural problem. Classification so far is rather depending on individual experience and is not evidence based. This means that the aim of the classification to create an level plying filed in the sports classes is currently often missed.
This state of injustice is supported because nobody who could have an interest in it is authorised to lodge a protest.
The IPC filed a court request asking for David to give over 10,000 euros, to cover the IPC’s lawyer fees, in case they win the case. Is that true? When did they make that request? Is that a normal request to make? It can be taken as a strategic tactic by the IPC to try to force him to drop his lawsuit. Is that how you took it?
Fact: The losing party must reimburse the winning party for the legal costs. However, this (cost) part of a German judgement is not enforceable in the USA under the New York Convention on the International Recognition of Judgements. Therefore, a plaintiff in the EU who is not himself a national of an EU state must provide security under German civil procedure law if the defendant so requests. This is permissible and customary.
Our opinion: The IPC has not required such security in other cases. Because the world governing body of Paralympic sport is structurally superior to the individual athlete, we hence consider the demand to be disloyal.
When was the first court hearing supposed to take place?
On 2 January the court set the first date for 23 April but it was postponed.
Then finally, you get a hearing scheduled. What date did the hearing take place?
4th of July.
At that hearing, is it accurate to say, that the IPC argued that David was trying to have the Paralympics cancelled? Is it true that the IPC also argued that, if David won his lawsuit, the IPC would be so inundated with lawsuits from athletes that they would have to cancel the Paralympics?
Partially right. They argued it was our goal to prevent the Games. That is clearly wrong. David and I want to strengthen a level playing field and make competition fairer – not prevent it.
IOC feared that it would be impossible to conduct Paralympic Games Paris 2024. We applied to the court to state that the Classification is partially illegal, and the IPC is not allowed to enforce it insofar as a legal remedy, like “protest” is not granted to athletes. IPC believed the Games would be a kind of enforcement of the code because all athletes attending the games were qualified under the code.
The judges told the courtroom in a preliminary assessment that day, that if they had to make a ruling then and there they would rule in favour of David?
Yes.
But the court didn’t make a ruling at the July hearing – why not?
The court has the option of announcing the decision at the end of the hearing. In this case, the reasons must be provided in writing as soon as possible.
The court can also set a date for the announcement of a decision after the hearing, by which time the judgement must already be available in written form.
The court has opted for the second alternative because some members of the chamber are on holiday in the meantime and has set the date for pronouncement for 12 September.
It has given the IPC the opportunity to argue once again in purely legal terms by 1 August why the classification code should not be binding for the affiliated associations.
Meanwhile we received the brief of IPC.
On the one hand the IPC claims that the exclusion of individual legal protection would be necessary because athletes would otherwise lose their right to compete by lodging a protest and this could be used to hinder opponents. On the other hand the IPC claims that the affiliated federations are not prohibited from granting individual legal protection. It also claims that it would already be possible at the UCI today, because both the Ethics Committee, but also the Disciplinary Board and the Arbitral Board, i.e. actually everyone, would be responsible. This is inconclusive and of course wrong. It is rather an attempt to evade responsibility. We also think the argument is dangerous for the IPC if it claims that the affiliated federations are free to formulate the rules. This would undermine the authority of the IOPC as the top federation and shake the foundations of sport organisation law, in which one federation is usually at the top of the pyramid and enforces its rules down to the grassroots level.
As expected, however, there are really only two possibilities: Either – and I think this is the most likely solution – the IPC will be forced to introduce a right for athletes to file a protest because the current practice is unlawful.
Or the court would – which I don’t think is likely – share the IPC’s view that an athlete can already request a review of the opponent’s classification today.
In both cases, we can only strongly advise all athletes worldwide in anticipation of the judgement to lodge a complaint/protest with the international sports federation if an athlete has the impression that they are at a disadvantage because an opponent is incorrectly classified.
Do you expect a ruling to come down on that date on 12th September ?
Yes
If you win the case, in the immediate aftermath, what does it mean? Lots of athletes suing the IPC over classification issues?
Potentially. I’ve got some clients of different European nation in same situation as David waiting for the result. In best case the judgment would serve to a benefit for all athletes.
If you win the case, what do you expect?
The IPC takes responsibility and creates its own system for athletes to protest and/or challenge classification decisions.
Or the IPC delegates the responsibility to the individual sports and their international federations and makes each sport handle the complaints.
I guess that IPC has to deal itself with legal remedies. The IPC is the master of the classification code. This regulates the procedure and must regulate, because different rules in different federations are not in line with the “one place principle” and the pyramid structure of the federations in international sport.
Recommendation lo lodge a protest
Protest / Complaint
to the chief classifier of
(insert name of the international Federation)
My name is
(full name, address, nationality, if applicable athletes no)
I´m allocated to
(sport and sport class)
I raise protest / complaint against
(full name, address, nationality, if applicable athletes no)
The athlete is allocated to
(sport and sport class, if applicable and known date of the protested decision)
I give the following explanation as to why the protest is been made and the basis on which I believe that the protested decision and the allocation to a sport class is flawed:
(describe in your own words. You should show that the Protest is bona fide (made in good faith) and not simply an allegation without any supporting evidence)
I can provide the following providing evidence
(if applicable and available fotos and/or footage or witness statements)
I request that the protest be dealt with. If you are of the opinion that I am not entitled to lodge a protest, please treat this as a complaint and refer the matter to the ethics committee or the disciplinary committee or the arbitral board.
Please inform me of the initiation and conclusion of the proceedings.
Place, date, signature