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49 Jurimetrics 343 (2008-2009)
Eligibility of Athletes Receiving Necessary Gene Therapy: The Oscar Pistorius Case as Procedural Precedent

handle is hein.journals/juraba49 and id is 349 raw text is: ELIGIBILITY OF ATHLETES RECEIVING NECESSARY GENE THERAPY: THE OSCAR PISTORIUS CASE AS PROCEDURAL PRECEDENT Blair H. Moses* ABSTRACT: The recent 2008 Olympics revived the controversy over gene doping-the non-therapeutic use of genetic material to enhance athletic per- formance-and the regulations prohibiting its use by athletes. Regulations against gene doping were instituted by the International Olympic Committee in 2003 and by the World Anti-Doping Agency in 2004. The regulations ban only those athletes utilizing gene doping, but the differentiation of gene ther- apy-the therapeutic use of genetic material-from gene doping can be diffi- cult. Future athletes receiving gene therapy for valid reasons, such as repairing sports injuries, also could be banned. The recent Oscar Pistorius case substan- tiated this concern. Pistorius, who has two artificial legs, was initially banned from competing in the 2008 Olympics. Even though his prosthetic legs are therapeutic uses of technology, the International Association of Athletics Fed- erations ruled they were a technical enhancement that disqualified him from competing. Pistorius appealed the decision to the Court of Arbitration for Sports (CAS), whose recent ruling in his favor allows him to compete interna- tionally against able-bodied runners. Although prosthetic devices are a dif- ferent form of therapy than gene therapy, the Pistorius case serves as important procedural precedent for how regulatory agencies might analyze individuals who have been treated using gene therapy. In particular, four elements from the CAS decision are relevant for analyzing future alleged gene doping viola- tions where the enhancement actually results from legitimate gene therapy. *J.D. Candidate, Pedrick Scholar, Strouse Scholar, and Law, Science, and Technology Cen- ter Scholar, Sandra Day O'Connor College of Law, Arizona State University; B.S., 1977, summa cum laude, Medical Technology, University of Nebraska Medical Center. SPRING 2009

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