The International Paralympic Committee (IPC) has to pay damages to former para-swimmer André Brasil. It is the first ruling of its kind and could have major implications for para-sport.
The Brazilian swimmer André Brasil has asserted claims for damages against the IPC before the Higher Regional Court in Düsseldorf. On February 1, 2023, in the process dealing with the classification of Brazil and the resulting exclusion from Paralympic competitions, the court ruled that the originally eligible world-class swimmer should not have been excluded from the para sport without a transitional period.
Although the court agreed with the IPC on many other points of contention, the judgment is more than a partial success for Brasil.
In the proceedings, the Düsseldorf Higher Regional Court determined that the IPC, due to the extraordinary importance of the Paralympic Games, “dominant position” towards athletes. Therefore, according to the court, the world association must grant the athletes a transitional period in the event of rule changes that affect eligibility to participate, such as in the area of classification.
Timing of the exclusion is crucial
The change in classification rules in paraswimming came into effect amid the four-year Paralympic cycle between the Rio 2016 and Tokyo 2020 Games. Brasil, which was excluded after the new classification, lost income from sponsorship, among other things. Brasil is now entitled to this lost revenue as compensation.
At the beginning of 2018, a new classification system came into force, according to which all para-swimming athletes had to be reclassified. Brasil, classified all his career in the S10 competition class, was suddenly eligible for all Paralympic competitions after the new classification that took place in April 2019 in the wake of the Para Swimming World Championships “ineligible”.
His career, which he wanted to end with more medals at the 2020 Paralympic Games in Tokyo, was over from one day to the next.
André Brasil: Formative figure of para-sports
André Brasil, who suffered from polio as a child, was one of the most successful para athletes in the world. He was part of the Brazilian national team for 14 years and has won 32 medals in five World Swimming Championships and 14 medals in three Paralympic Games.
Brazil alleges: “Classification not professional”
The 38-year-old complained against the decision of the world association World Para Swimming (WPS). The association is under the direction of the IPC and is responsible, among other things, for the classification in para-swimming. The Brazilian Paralympic Committee (CBP) joined the lawsuit. Since the IPC is based in Bonn, the case was heard in Germany.
The plaintiffs questioned, among other things, the assessment of the classification committee and the classification process. According to the plaintiffs, no medical-technical and analytical aids were used in the examinations. In addition, the bodies were not professionally and adequately trained for the new classification that came into force.
The accusation in summary: The classification would not do justice to today’s professionalism of para-sports and that of the athletes.
Brasil misses the Eligibility by a point
In his classification study, Brasil received 286 out of a possible 300 points – exactly one point too many and tantamount to his exclusion. In such a case, the classification rules of the WPS provide for a re-examination. An hour and a half after the first classification, Brasil was re-examined. Two of the three examiners were replaced, but the chairman of the panel remained in place. The result: Exactly 286 points again – the decision remained.
Brasil felt betrayed by the decision and found the classification system, especially the investigations themselves, to be unfair and flawed, as he said in an interview with the sports show. “Why should I believe that the system works? When I was examined by the same people who had the same information available? Is it possible to assess my disability more realistically or differently? They give me exactly the same score in two classifications, between which lie an hour and a half.”
Brasil would also have wished that other and more in-depth methods and analyzes had been used in his second study. In addition, there was no opportunity to submit medical or movement analysis reports independently.
The court follows the assessment of the IPC
In a statement to the sports show, the IPC disagrees and says: “The athlete’s classification was determined by two independent international classification bodies and subsequently endorsed by the Independent Classification Appeals Committee.”
The Düsseldorf Higher Regional Court followed this assessment and ruled in favor of the IPC, saw no content or procedural errors in the classification of Brazil.
“The verdict strengthens the rights of para-athletes”
It is not just the substantive decision that Alexander Engelhard, attorney for Brazil, sees critically. The lawyer at the IPC also sees a need to catch up with regard to the rights of athletes: “In terms of classification, the IPC wants to make its own decisions about whether a person is disabled enough to compete in Paralympic competitions, and it wants to make its own decisions about which athletes can compete in which classes. Real legal remedies against classification decisions are there not the IPC rules.”
In fact, the IPC’s Code of Classification contains a clause that restricts athletes from legally challenging the classification. The rules only provide for a review of procedural errors before an IPC association court. The Düsseldorf Higher Regional Court ruled that this restriction of legal recourse was ineffective and gave the athlete the opportunity to sue in state courts.
“The judgment strengthens the rights of para-athletes”, Alexander Engelhard states and clarifies: “The IPC must not prohibit Para-athletes from appealing classification decisions in state courts or independent tribunals.”
A similar decision was made in the case of the two para-snowboarders Brenna Huckaby and Cécile Hernandez, who also sued the IPC in the run-up to the Winter Games in Beijing 2022. The IPC sees no connection between the two judgments in this regard.
A case for him Federal Court of Justice and Karlsruhe?
Compared to the sports show, the IPC was relaxed when asked whether other athletes could also demand compensation. be “Not concerned about future litigation as a result of this case.”
According to Engelhard, there are more “Para Athletes Expelled from Para Sport Due to Reclassification Without Transition Period”. According to his assessment, they could also be entitled to claims for damages.
This should explain why the IPC has meanwhile announced that it intends to continue hearing the case at the next instance before the Federal Court of Justice (BGH) in Karlsruhe. Mainly to contest the compensation payments. If the Federal Court of Justice allows the process, Engelhard and Brasil are equally considering having all other aspects of the Higher Regional Court judgment re-examined by the court. According to Engelhard, they are concerned with one “a more professional and objective classification system that puts para-athletes at the center and recognizes the fundamental importance of classification to para-sport”.
Brasil: “Thrown out like I’m nobody”
“Sport threw me out like I was nobody. I gave my whole life to sport and worked to prove that people with disabilities deserve more,” said Brazil: “Excuse the words: they (the IPC) treated me like dirt. Sometimes it’s really hard. It’s been taking a long time now. But I’m sure God has a plan for me. It won’t affect me anymore , but everyone else who follows. I want to try and show it to the IPC.”
Calls for reform will not diminish. The Brazilian case is explosive. For the classification system as such, but also for the IPC as a whole. The former swimmer could thus pave the way for a new system.