Brenna Huckaby and Cecile Hernandez retain their medals won at the Beijing 2022 Paralympic Games.

Brenna Huckaby (USA) and Cecile Hernandez (FRA) won their participation in the Beijing 2022 Paralympic Winter Games in court through injunctions and each won gold medals. If the International Paralympic Committee IPC had had its way, they would not have been allowed to keep the medals. A trial on the merits was necessary, which was heard today, 8 December 2022, at the Regional Court in Cologne.

In the proceedings, the IPC recognised as final the decisions of the Higher Regional Court of Düsseldorf and the Regional Court of Cologne in the injunction proceedings, based on which the athletes competed and won in Beijing.

Both world-class athletes have competed in the SB LL-1 class for years and have won medals in the banked slalom and snowboard cross competitions at World Championships and Paralympic Winter Games. Brenna Huckaby lost her right leg above the knee after suffering from bone cancer in 2010. Cecile Hernandez has suffered from multiple sclerosis since 2002.

For the Beijing 2022 Paralympic Winter Games, the IPC had not planned any competitions in the SB LL-1 class because there were too few participants at a sufficiently high level to hold a separate competition. Both athletes had applied to be allowed to compete in the SB-LL2 class at the Games, which they were denied.

They turned to lawyer Christof Wieschemann, WIESCHEMANN Rechtsanwälte, from Bochum, who, as a specialist lawyer for sports law in Bochum, has successfully represented athletes from all over the world against the major sports federations for years. In preliminary injunction proceedings before the antitrust divisions of the Regional Court of Cologne and the Higher Regional Court of Düsseldorf, he was able to enforce his clients’ right to participate in the SB LL-2 class in the end after threatening enforcement. Brenna Huckaby won gold in Beijing in the banked slalom and bronze in the snowboard cross. Cecile Hernandez won gold in the Snowboard Cross.

At the Paralympic Games in Beijing, the teams from Canada and China had lodged protests against their participation. In the proceedings before the Regional Court of Cologne, the main issue was whether the participation was legal and the athletes were allowed to keep the medals. 

So far, the courts have followed the argumentation of lawyer Wieschemann that according to the classification rules of the IPC, athletes in the SB LL-2 class have a lower degree of functional impairment in the sport-specific requirements of snowboarding than those in the SB LL-2 class. This follows directly from the rules themselves and the scientific expert opinions on which the rules are based. Therefore, participants in class SB LL-2 do not experience any disadvantage if athletes in class SB LL-1 take part in their competitions. Exclusion of SB LL-1 athletes by the IPC is an abuse of a dominant position without factual justification. 

The IPC invokes its autonomy and sees the entire classification system at risk. According to the IPC, the individual classes do not have a qualitative relationship to each other. Rather, they would be “completely different activities”. 

However, according to Ra Wieschemann and the courts, this is not expressed in the rules.

Rather, the IPC has already made use of its regulatory autonomy and defined the individual classes itself. For the user of the law the IPC’s intention is only to be taken into account to the extent that results from the rules. 

According to the self-selected definition, the system differentiates according to certain classification features and their abstract suitability to influence the functional performance to fulfil the discipline-specific requirements. Degrees of functional impairment are defined, which result from increasing scale values of recognised examination methods for the individual types of physical impairment.

Undoubtedly, the degree of functional impairment is higher for women in class SB ll-1 and the ability to perform certain movements in para-snowboarding is lower compared to class SB LL-2. 

The court indicated at the hearing that it would adhere to this legal opinion, including that of the OLG Düsseldorf. Out of respect for the athletes’ performance, the IPC then recognised the decisions already made as binding, albeit maintaining its own dissenting opinion.

The proceedings were not only about the medals of the two courageous female athletes. It will be of essential importance for the interpretation of the classification rules in the future.

Unfortunately, it was not possible to clarify Ra Wieschemann’s further statement that athletes of class SB LL-1 are in principle entitled to start in races of class SB LL-2 if no races are held for their class in the same competition. During the course of the proceedings, the IPC transferred responsibility for World Para Snowboard to FIS, the World Ski Federation. As a result, the parties declared the proceedings closed.

Attorney Wieschemann represents other Paralympic athletes, partly in similar cases, partly with the aim of a fundamental review of the classification practice.