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Let Them Run: Pistorius and the Olympics

By Jeffrey Standen

People complain all the time about the corrupting influence of money in sports. I think it's just the opposite: the lack of money corrupts. Money purifies, giving every competitor the identical incentives to compete and win. Look at PGA tournament golf, for instance: no guaranteed salaries, no long-term deals; only the best finishers get paid, and the "best" is determined on the golf course each week. Money provides the incentive to excel. I love it when the winner holds up the huge check, and that the first-place check is substantially larger than the second.

Money and the unalloyed competition it generates has another benefit: by giving athletes tangible incentives to win, it gives athletes huge incentives to design, adapt and utilize the very best technology. Think of car racing: the fact that many major car manufacturers dabble in automobile racing advances their technological knowledge, furthering their main mission in producing passenger vehicles for everyday travel.

What does this have to do with the Olympics and Oscar Pistorius and his prosthetic leg devices? The common fear is that Pistorius has or will find or help develop super-fast leg devices and so will prevail over non-disabled competitors. I'd like to see him do it. Why not create sizable financial bounties (Olympic victory) for the athletes who invent or use the best devices? Don't we want to push the technology as far as it can go? Isn't the financial bounty of an Olympic victory a perfect way to accomplish this?

1. Sports gambling is generally not permitted in this country. Yet we do have some notable exceptions, one being horse racing. Why is parimutuel horse track betting permitted? The historical reason may surprise you: states and localities permitted and actually encouraged horse racing not to satiate public demand for wagering or entertainment. No, it was permitted for the sake of the horses! Betting on horse races, along with supplying entertainment, imbued those races with cash. Horse breeders (to this day) typically take a large part of the action on their horses. Giving horse breeders a tangible financial incentive to win races infused their breeding and training efforts with clear rewards for excellence. Breeding horses, even just race horses, for strength, speed and stamina pushed the technology, helping breeders learn the best methods and practices. Those who work on the cutting edge of horse breeding developed information that, it was thought, would eventually help the whole horse stock. In an era where the stock and quality of horses was an important component of social capital, this benefit of wagering on horse races was not insubstantial.

2. I have noticed, glancing out my office window (yes, this is the empirical method), that the quality of the horse stock seems somewhat less socially important today than in ages past. Just as clearly the utilitarian value of parimutuel horse race betting is today pretty small, and probably it survives by historical inertia as much as anything else. But I've never understood why we don't allow (or even encourage) betting in other areas of more obvious contemporary significance, such as automobiles, for instance. Why not use the power and incentivizing magic of wagers and payoffs from bets on auto races to trigger super-advances in automobile technology? Instead we (collectively) carp at the automakers and set fuel-mileage standards and the like, all to try to cajole them to accomplish through regulation what the promise of giant wagering payoffs might accomplish costlessly. And by the way, I would definitely become a gold-card patron at a casino that had its giant floor space surrounded by a six-lane racetrack with cars ripping by at 200 miles per hour. That would be a betting experience. Isn't there enough room left in the Las Vegas desert to make this happen?

3. I'm not saying that people who oppose sports wagering don't have a point. But my point is that we need to understand that wagering is not necessarily socially wasteful either. Betting does have a benefit. It throws cash money at a problem (just like the government does), but here the money is paid only to the winner. It makes people go crazy to win, and the means they devise to win money can sometimes benefit the rest of us. If the stock of horses is so important as to justify two centuries' worth of parimutuel wagering, why not allow wagering on things that are more important in today's world?

4. Like prosthetic devices, or medical advances more generally. I once wrote an article for a lawyer newspaper where I (half-jokingly) suggested that athletes should be allowed to use performance-enhancing drugs if only to assess the potency and test the limits of experimental treatments. Why rely on lab rats where highly compensated humans were completely willing to give it a go? No, I'm not saying we should set the lethal dose limits with human-subject trials. But within the broad range of drugs with known lethal dose limits, why not allow people to make calculated, informed experiments with their bodies, especially where they're doing so for the sake of a substantial payoff in the form of a professional sports career? Haven't we learned something about the possible benefits (and negative side-effects) of PED's in part because certain rogue athletes have used them? Would we learn even more if that use were done under medical supervision, with appropriate data collection and sharing of knowledge? Wouldn't allowing Pistorius to go as fast as he can with the best device he or his doctor can design further that particular realm of medical technology? Isn't that something good too?

5. Now I realize I'm completely ignoring the large counter-argument to all of this, specifically that the prohibition on enhancements (be they pharmacological or prosthetic) is justified not in the main by health-preservation but by the desire to ensure a "fair" contest. That if Pistorius, using his "Cheetah" devices, is allowed to compete against runners without such devices then Pistorius (or the next user of the next device) may have an advantage that a non-equipped runner cannot plausibly overcome. (I even read somewhere the view that crazed athletes, willing to try anything to win, might saw off their legs to take advantage of the latest prosthetic technology. The evidence for this was that athletes were willing to take PED's and that therefore they will risk anything to win. I'm no doctor, but I sense that taking a few injections of a naturally occurring growth hormone lies on a lower plateau of risk-taking and potential downside than is sawing off one's appendages.) If it eventually happens that artificially enabled athletes begin to win with regularity, then the runners could be divided into two groups, the disabled and the non, just like Olympic boxing is divided into weight classes, Olympic track is divided by distances, and Olympic competitions generally are divided by gender. It should not be a big deal. But I would want to share the Olympic stage with disabled athletes as much as possible, to capture the incentivizing effects.

6. But my other question about the "fairness" claim is this: just how important is "fairness" in the terms the proponents of this argument imply? Clearly some athletes have better natural endowments, or get better training or nutrition, or have access to better technology. (The technology comes into play in Olympic sports that feature appliances, such as the bobsled (love that thing) or swimming suits, etc.). In what sense is the game "fair" if one athlete, due to his innate or acquired superiority, is highly likely to prevail? One can draw the line on technology or enhancements or bobsleds or what have you, but that's my point: we're drawing a line. Any line drawing is arbitrary to a large extent. We can say no prosthetic devices, but what about a heart monitor? What about a stent that assists blood flow? What about drugs that speed recovery from injury? Again, we can talk about all of these issues and try to reach a sensible resolution. I'm not saying a sensible resolution is not possible. But still, whatever resolution we reach, we have to acknowledge that our definition of "fairness" is replete with many, many qualifications, and is a long way from the simple notion that everyone starts at the same point with an equal chance to win. Pistorius is standing at the starting line on two legs. He's not in a motorized wheelchair. There is a substantial claim that it's a fair race, even if it's one the non-augmented athlete is likely to lose.

7. So rather than fight the clear financial payoffs from Olympic success I would suggest we embrace them and put them to good use. Even if one day we have a separate division for athletes such as Pistorius, we should do what we can to give the victor the same stage as we do currently for Olympic champions. It's important that the disabled athlete have payoffs too. It was thought important enough for horses.

Full post as published by The Sports Law Professor on May 22, 2008 (boomark / email).