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The Significance of Meca-Medina

It is of central significance that the Court of Justice’s analysis in Meca-Medina does not claim that the anti-doping rules are ‘purely sporting’ in their nature or effect. In fact it could not be more plain that they are not of this type. From the perspective of the swimmers, the rules have a very severe economic effect. They are unable to earn a living. And organizers of sports events too are doubtless motivated not only by the aim of protecting the sporting integrity of their event but also by the damage done to sponsorship and broadcasting opportunities by an association with doping.59 Instead of pursuing the fictional or at least extremely rare creature that is the ‘purely sporting’ rule, the Court in Meca-Medina finds a different and more intellectually credible means to express the special character of sport within the interpretation and application of EU law. Meca-Medina constitutes a rejection of the notion that a ‘purely sporting’ rule is of itself apt to escape the scope of application of the Treaty. Instead the Court appreciates that a practice may be of a sporting nature—and perhaps even ‘purely sporting’ in intent—but that it must be tested against the demands of EU law where it exerts economic effects. EU law operates on the basis of a limited mandate—this is Article 5(1) TEU’s principle of conferral— but that mandate is broad in consequence on the empowering project to complete the internal market.

Then the Court in Meca-Medina put sporting practices to the test, but it invested that test with recognition of the particular context in which sport is organized. So EU law overlaps with ‘internal’ sports law (the lex sportiva)—but it absorbs, albeit not uncritically, the special expectations of sports governance. It grants it a conditional autonomy.

This assertion of a sensitivity to the special character of sport in the interpretation of EU law is not a concession that is unique to sport. This, in fact, is generally [1] [2] [3]

applicable EU law: it is not EU sports law as an exotic rare breed. In Wouters, which was nothing to do with sport, there were ‘effects restrictive of competition’[4] but, on examination of the objectives of the relevant restrictions (on multi-disciplinary partnerships), they did not go beyond what was necessary in order to ensure the proper functioning of the legal profession in the Netherlands. There was no breach of EU competition law. So too in Meca-Medina. Anti-doping rules cannot simply be excluded from the scope of review by reference to their role in ensuring ‘fair play’ or ‘clean sport’. They must be examined in their proper context, which cannot ignore their economic effect. However, placing the rules within the ambit of the Treaty does not mean they will be forbidden by it. The general objective of the rules was to combat doping in order for competitive sport to be conducted on a fair basis; and the effect of penalties on athletes’ freedom of action was treated as inherent in the anti-doping rules. This contextual examination of the rules was crucial in the Court’s conclusion that rules affected the athletes’ freedom of action but that they did not constitute a restriction of competition incompatible with EU competition law.

The CFI’s ruling in Meca-Medina was exposed as badly flawed on appeal, but its errors remain illuminating. The CFI had suppressed the significance of Wouters for reasons that were logical once it had chosen to misdiagnose the anti-doping rules as ‘purely sporting’. The CFI considered that Wouters concerned ‘market conduct’, an ‘essentially economic activity, that of lawyers’. Anti-doping cannot be likened to market conduct without distorting the nature of sport, which ‘in its very essence ... has nothing to do with any economic consideration’^1 This was doubtless sweet music to the ears of sports governing bodies intent on securing their most coveted prize, which is absolute autonomy from legal regulation. But it is profoundly unpersuasive. Although this approach, walling off sport from economic activity, reeled in the CFI, it was deservedly set aside on appeal. The Court instead preferred to accept an overlap between EU law and ‘internal’ sports law (lex sportiva), while also accepting that the peculiar demands of the latter may be used to nourish a submission that an apparent restriction is nevertheless an essential element in sports governance. This, following Wouters, is the heart of Meca-Medina.

In Meca-Medina the Court took a broad view of the scope of the Treaty, but emphasized its receptivity to the importance of matters not explicitly described as ‘justifications’ in the Treaty as a route to permit the continued application of challenged practices which are shown to be necessary to achieve legitimate sporting objectives and/or are inherent in the organization of sport. What is really at stake is not a group of sporting rules and a separate group of economic rules, but rather a group of sporting rules which carry economic implications and which therefore fall for assessment, but not necessarily condemnation, under EU competition law. This is the heart of the model according to which EU law grants sporting bodies a conditional autonomy. Free movement law follows a structurally comparable model: although at a detailed level free movement law and competition law differ,

61 Meca-Medina (n 31) para 65.

the inquiry into whether a sporting rule is properly treated as inherent in and necessary for a sport’s organization runs in common. The Court in Meca-Medina warned that restrictions imposed by rules adopted by sports federations ‘must be limited to what is necessary to ensure the proper conduct of competitive sport’:fi2 in similar vein in Bosman it insisted that the transfer system must ‘not go beyond what is necessary’ to achieve its aims.[5] [6] [7] [8] The key to EU sports law is: are the economic effects of the rule which seem to offend against core EU provisions dealing with the internal market a necessary consequence of their contribution to the structure of legitimate sports governance? If so, the lex sportiva prevails: the conditions for autonomy under EU law are satisfied.

Meca-Medina establishes that few rules are sporting but not also economic in nature and/or effect. The majority of rules are both. The intersection of EU law and ‘internal’ sports law (the lex sportiva) is therefore recognized, and sporting bodies have room to show how and why the rules are necessary to accommodate their particular concerns— fair play, credible competition, national representative sides, and so on.

The consequence of this approach is a need for a case-by-case examination of the compatibility of sporting practices with the Treaty. There is no blanket immunity: there is no zone of ‘sporting autonomy’ that can be treated as naturally and inevitably beyond the reach of EU law. Most positive accounts of the Court’s ruling in Meca-Medina have tended to emphasize the scope allowed by the Court for debate about what is truly ‘special’ in the governance of sport, while also appreciating the improved intellectual quality of the analysis, in particular its rejection of the ill-shaped concept of the ‘purely sporting’ rule—which was and is rarely ‘purely’ sporting at all, but rather both sporting and economic in its implications.64 On the other hand, Meca-Medina is, admittedly, troubling for sports bodies, not only because it represents a setback for those who would in principle champion the virtues of sporting autonomy but also for more urgently practical reasons. The need for a case-by-case examination of the compatibility of sporting practices with EU law is vulnerable to the criticism that it breeds uncertainty and unpredictability. Such anxieties had been audible for many years, but Meca-Medina certainly sharpened the intensity of the critical debate. The ruling attracted pained criticism about EU law’s disregard for the special features of sport from those close to sports governing bodies.65 A typical complaint was that of the EU Office of the European

Olympic Committees, which considers that the notion of the specificity of sport ‘suffers from the lack of a complete and precise definition’ and criticizes Meca- Medina as ‘unsuitable because it produces legal uncertainty and incomprehension’, adding that the Court ‘has failed ... to draw clear boundaries between EU law and sport related matters’.[9] [10] [11] Other sources too have expressed anxieties about, inter alia, the expertise of the Court in Luxembourg to investigate such matters.67 The vibrant contestability of the practice of EU intervention in sport is plain.

This is the wider context within which Meca-Medina has been attacked for stripping away some of the autonomy to which sports governing bodies regularly lay claim as necessary and appropriate. And it is pertinent to appreciate that sporting bodies have unrivalled expertise in persuading the media to take their side when they are faced by legal constraint. In October 2007 the Financial Times ran the following story under the title ‘Olympics Chief Fears EU Grip on Doping Rules’:

The Olympic movement faces the frightening prospect of anti-doping rules coming under the responsibility of the European Union unless the Lisbon summit agrees to exempt sport from EU free market rules, the president of the International Olympic Committee has

warned____ Mr Rogge highlighted the so-called Meca-Medina doping case in which the

European Court of Justice ruled last year that anti-doping laws contravened EU competition law by taking away freedom to compete from two banned swimmers .68

This is towering nonsense. The Court did no such thing! That even the Financial Times, by far the most reliable British newspaper, should publish the very opposite of the truth reveals the remarkable ability of sport to use the media to advance its tendentious claims for autonomy. But, stripped of its inaccuracy, this quote is helpful in capturing the abiding ambition of sports federations to keep the law in general and EU law in particular at arm’s length. It illuminates too the way they approached the negotiation of what finally emerged as the Lisbon Treaty in 2009, in which sport was for the first time included in the EU Treaties: this story is told in Chapter 6. The proper retort to M Rogge and to the Court’s other critics is that via the Wouters formula, absorbed by the Court in Meca-Medina, EU law accommodates the special concerns of sports governance in the interpretation and application of the law—just as it is open to any sector to seek to persuade the Court that it has particular requirements that are inherent in its operation which are apt for recognition despite their restrictive effect on competition. It is true that the case-by-case examination required by Meca-Medina deprives the Commission of the ability to produce a binding formula which gives sport its desired sanctuary by capturing the unsurpassable limits of the scope of EU law. The Commission’s document ‘Mapping and Analysis of the Specificity of Sport’, published in June 2016, is a perfectly well-written overview of practice but falls far short of the type of concrete guidance that would satisfy sports governing bodies eager for certainty.[12] But although EU law operates on a case-by-case basis, its pattern of examination is sensitive to the peculiarities of sport. Article 165 TFEU, the provision inserted with effect from 2009 by the Lisbon Treaty, recognizes and confirms exactly that by endorsing ‘the specific nature of sport’. Moreover, although sporting bodies have a legitimate antipathy to any judicial aspiration to micromanagement of the conduct of sporting competition, in Meca-Medina the Court does not make any heavyhanded claim to greater expertise than sporting bodies in the matter of doping control. It expects only that restrictions imposed shall be limited to what is necessary to ensure the proper conduct of competitive sport, specifically that procedures shall not be founded on poor science nor that sanctions shall be disproportionately severe.[13] [14] [15] EU law places conditions on the autonomy of sports bodies, but that autonomy, even if not absolute, is still generously sensitive to the special features of sport.

  • [1] MOTOE (n 55) para 51. 58 Meca-Medina (n 28) paras 49—56.
  • [2] 59 ibid para 46 of the judgment touches on this without placing any emphasis on it. Waning inter
  • [3] est among sponsors and broadcasters was a factor in promoting reform of anti-doping procedures inprofessional cycling: see eg W Lagae and D Van Reeth, ‘Paradoxes in Professional Road Cycling: A Pleafor a New Cycling Industry’ in Y Vanden Auweele, E Cook, and J Parry (eds), Ethics and Governancein Sport: The Future of Sport Imagined (Routledge 2016) ch 13. Part of the story is also a fear that untilcommercial pressure provides sufficient inducement, governing bodies are slow to adopt a rigorousapproach to doping control for fear that this will harm the commercial attraction of their competitions.
  • [4] Wouters (n 12) para 110.
  • [5] Meca-Medina (n 28) para 47. 63 Bosman (n 1) para 104.
  • [6] 64 See, at the time and in largely approving vein, S Weatherill, Anti-doping Revisited—the Demiseof the Rule of “Purely Sporting Interest”?’ [2006] ECLR 645; E Szyszczak, ‘Competition and Sport’
  • [7] (2007) 32 EL Rev 95; M Wathelet, ‘L’arret Meca-Medina et Majcen: plus qu’un coup dans l’eau’ [2006/41] Revue de Jurisprudence de Liege, Mons et Bruxelles 1799; M Wathelet, ‘Sport Governance andEU Legal Order’ (The ‘Wathelet Report’) (2007) 7(3-4) Intl Sports LJ 3; A Rincon, ‘EC Competitionand Internal Market Law: on the Existence of a Sporting Exemption and its Withdrawal’ (2007) 3JCER 224.
  • [8] See eg G Infantino [at the time Director of Legal Affairs at UEFA, now President of FIFA],“Meca-Medina: A Step Backwards for the European Sports Model and the Specificity of Sport?’ UEFApaper 02/10/06 accessed 29 November 2016; J Zylberstein, ‘Collision entre ideaux sportifs etcontinges economiques dans l’arret Meca-Medina (2007) 48 Cahiers de Droit Europeen 218.
  • [9] Guide to EU Sport Policy (2011), 11, 12, and 18 accessed 29 November 2016.
  • [10] See eg R Subiotto, ‘The Adoption and Enforcement ofAnti-Doping Rules Should Not Be Subjectto European Competition Law’ [2010] ECLR 323; also D Dixon, ‘The Long Life of Bosman—aTriumph of Law over Experience’ (2008) 6(2) ESLJ 3 accessed 29 November 2016.
  • [11] ‘Olympics Chief Fears EU Grip on Doping Rules’ Financial Times (London, 18 October 2007) 11.
  • [12] accessed 29 November 2016.
  • [13] Meca-Medina (n 28) especially paras 47—56.
  • [14] The launch of the Arnaut Report was announced in a UEFA Press Release of 20 October 2006 accessed 29 November2016, but its dismal quality is accentuated by the fact that its host website no longer functions: itwas at . A copy is held at accessed 29 November 2016.
  • [15] The Arnaut Report (2016), the only exception is at p 14.
 
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