14-time Paralympic medalist Andre Brasil and the Brazilian Paralympic Committee (CBP) have filed a lawsuit against the International Paralympic Committee (IPC) after they reclassified Brasil as ineligible.
Brasil was deemed ineligible in 2019 after World Para Swimming (WPS) reworked the classification system in 2018. This rule change followed multiple cases of intentional misrepresentation (when athletes make their impairment seem more severe in order to be placed in the wrong disability class.) WPS mandated that all para-athletes get reclassified in 2019.
This was after Brasil’s 14-year-long career on the Brazilian Paralympic team, representing them in the past 3 Paralympic Games where he won a total of 14 medals.
Throughout his career, Brasil was classified as an S10 para-swimmer. He had polio as a child which caused one of his legs to be five inches shorter than the other and he has no feeling, strength, or balance in his left leg, according to Globo Esporte.
In 2019, Brasil missed the eligibility range by 1 point according to Alexander Engelhard, a sports lawyer from the German law firm Arnecke Sibeth Dabelstein who is representing Brasil and the CBP.
“There is a scale from zero to 300 points. To be classified in S10, an athlete has to reach between 266-285 points. Andre had 286,” Engelhard explained to SwimSwam over a Zoom call. S10 is the Paralympic class that includes athletes with the least severe physical impairments, therefore Brasil was reclassified as ineligible for the Paralympics as a whole in butterfly, backstroke, and freestyle.
Brasil’s defense has formed five arguments against WPS’ reclassification.
- The basis of this classification is formally illegal
- The basis of this classification is substantially invalid
- The IPC did not take into account an independent scientific study Brasil provided of himself and his impairment
- Brasil’s classification process was flawed
- The rule change and the classification itself violated the basic human rights of the athlete, his freedom of profession and the right not to be discriminated against
The reclassification was formally illegal, according to Engelhard, because WPS did not pass these rule changes according to the IPC classification code which requires them to send the rule changes to the national governing bodies and ask for feedback. According to Engelhard, this did not happen.
“They did not properly infom the national paralympic committees that new rules would be coming. This would have required WPS to provide appropriate notice, give a rationale for the rule change, and provide an opportunity to submit feedback and comments. This did not happen,” he said.
He explained that the decision was substantially invalid because it violates German and European antitrust laws. “Under German and European antitrust laws a market-dominating entity cannot simply end a relationship with a business partner (and in the sporting world your business partner as a sporting governing body is the athlete) without any prior warning or transition period for him to adjust.
“This transition period should have taken into account that the new rules came into force in the middle of the 2016-2020 Paralympic cycle and that national Paralympic committees and athletes had already made significant tangible and intangible investments in preparation for the Paralympics in Tokyo,” Engelhard explained. As a result of his reclassification in 2019, Brasil has lost all of his sponsors.
The classification was flawed, says Brasil’s defense, because it was not performed by two separate parties. After the first classification of an athlete they are supposed to have a second classification done by a separate team to ensure objective judgement. But in Brasil’s case a chief classifier was a part of both, advising the process both times and harming the objectivity that was intended to be there.
In the scientific study that Brasil provided, his defense argued that his ankle should have been weighed in as 2 points rather than 3 points. This would have kept him eligible to compete. While this study was not taken into account by the IPC, it was published in the International Journal of Sports Science and Coaching in August 2020.
The article, “The Classification in Para-Swimming: Analysis of a Paralympic Champion’s Withdrawal Case” by AC Barbosa compares Brasil’s physical strength to an Olympic swimmer. The publicly available abstract states: “There is a substantial bilateral leg kick speed difference for the Paralympic, but not for the Olympic. The impact of Paralympic’s impairment on his kick performance considerably differs when using quantitative and qualitative assessments.”
According to Englehard, WPS has not provided a scientific reasoning or basis behind their decision to classify Brasil as ineligible. SwimSwam reached out to the IPC through email, but they declined to comment because of “ongoing legal proceedings.”
On the day of the oral hearing on February 9, there was a call for the Paralympic classification to be more objective from both sides of the courtroom. “In the proceedings the IPC so far was not able to come up with anything apart from mentioning – of course – that there should be a level playing field for athletes. Everybody agrees with that. But the plaintiffs deny that the amendment of the WPS Classification Rules 2018 was suitable to establish that level playing field. The rules are still subjective, they lack a proper scientific basis, classifications are not done with the proper technology, etc,” Englehard said.
“The IPC, which carries the burden of proof in this regard, has not offered any evidence that would show that the new rules can guarantee a fair assessment of the athletes. But you have to show that Andre is not part of this level playing field anymore… and they never did that.”
The verdict is expected by March 2nd. Unlike most sporting disputes, there’s no rule that forces this to the Court of Arbitration for Sport (CAS) therefore Brasil and the CBP are going through the Cologne Regional Court. They requested this to be decided soon due to Brasil’s chances of qualifying for the Paralympics.
Brasil still holds the S10 Paralympic world record in the 50 free, 100 free, and 200 free. Across the 2008, 2012 , and 2016 Paralympics he won 14 medals, seven of which were gold.