While The Man From FCPA often considers those individuals and companies who step over the legal line of laws such as the FCPA or U.K. Bribery Act, there is another dimension to the compliance and ethics discussion. Sometimes the question is not can you do something, but whether you should do something. This question was recently raised in an area far afield from the FCPA but one which does consider ethics more often: long-distance running. More obliquely, it was not regarding performance-enhancing drugs but was in the category of equipment, specifically footwear.
Reports have raised the question of whether new Nike footwear, which is scheduled to be released June and is monikered the Zoom, will violate standards set forth by the International Amateur Athletic Federation (IAAF). The issue is around the light weight of the shoes, only 6.5 ounces and “feature a thick but lightweight midsole that is said to return 13 percent more energy than more conventional foam midsoles. Some runners have said the shoes reduce fatigue in their legs.” Equally importantly, the shoe incorporates a carbon plate into the sole. George Hirsch, the chairman of New York Road Runners, which organizes the New York City Marathon, called the shoes a “game changer.”
Usually ethics issues in track and field center on performance-enhancing drugs, although some equipment issues bubble up from time-to-time. Limited to the arena of footwear, the most front-and-center case of that is double amputee Oscar Pistorius and the issues surrounding his prosthetic blades he raced in during the 2012 Olympics. Basically anything beyond racing bare foot is using some type performance enhancing equipment so there is clearly some precedent for such equipment. Pistorius was allowed to run, even with the claim his prosthetics “enahnced” his performance (his South African relay team did not medal).
Yet, there have always been equipment improvements and enhancements. Remember wood-framed tennis rackets? How about the innovation of fiberglass poles for vaulters? The IAAF rule on the issue is less than a modicum of clarity, or even help, stating, “shoes must not be constructed so as to give an athlete any unfair additional assistance, including by the incorporation of any technology which will give the wearer any unfair advantage.” What exactly an unfair advantage might be, however, is not explained. Although of course wanting to maintain control, the rule does say that “all types of competition shoes must be approved by the I.A.A.F.”
Where is the line of inequitable advantage, and when is it crossed? No one seems to know precisely. Ross Tucker, an exercise physiologist from South Africa who writes the Science of Sport, said “It’s quite a fun ethical sports technology area that we’re heading into.” While Hamlet said, “The play’s the thing” it may now be in running that the shoes are the thing.