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The path to litigation

David Meca-Medina and Igor Majcen were professional swimmers. They had failed a drug test administered as part of the control exercised by swimming’s governing body, FINA. As a result they had been banned from competition for a period which, after an appeal pursued before the CAS, was fixed at two years.[1] [2] This deprived the athletes of their means of making a living and so the consequential economic detriment was obvious and unarguable. But it was equally obvious and unarguable that this was not only a matter of an economic impact. Sport is structured by rules which define the essence of the endeavour. Keeping out drug cheats has an economic motivation not least by securing the attraction of the event to sponsors and broadcasters: ‘clean’ sport sells, and only clean sport is readily connected to the wider claims associated with a healthy lifestyle commonly made on behalf of sport. At the same time it is an existential choice: sport is only sport if there is a level, drug-free playing field for competitors. The champion should have the most talent and commitment, not the best pharmacist. To use the language considered earlier, anti-doping seems convincingly understood as an inherent element in the organization of sport.

The swimmers complained to the European Commission that their exclusion from the sport constituted a violation of the EU’s competition rules. The Commission rejected their complaint. Meca-Medina and Majcen then applied to the Court of First Instance (CFI: known since the entry into force of the Lisbon

Treaty in December 2009 as the General Court) for annulment of the Commission’s decision to reject their complaint. The CFI rejected their application.[3] The swimmers then appealed to the Court of Justice. It subsequently set aside the CFI’s judgment, though it still ultimately concluded that the swimmers’ application for annulment of the Commission decision had to fail.32 But it is worth dwelling briefly on the CFI ruling. In Meca-Medina and Majcen v Commission the CFI did sterling, if entirely unintended, service to the development of EU sports law by adopting an approach that was so absurd that it illuminated just what had been missed in previous judicial practice, beginning with Walrave and Koch and continuing in Bosman. And it provoked the Court, dealing with the appeal, to think much more carefully about the underlying basis for subjecting sport to EU law and to yielding it a degree of conditional autonomy. Most of all the Court’s ruling on the appeal in the case is significant for taking a much less generous approach to the scope of sporting autonomy than had been admitted by the CFI. The litigation in general, and the two judgments in particular, capture the choice to be made about the extent to which the law should respect sporting autonomy.

  • [1] For extended analysis, see R Parrish and S Miettinen, The Sporting Exception in European Law(TMC Asser 2007); also S Weatherill, ‘On Overlapping Legal Orders: What is the “Purely SportingRule”?’ in B Bogusz, A Cygan, and E Szyszczak (eds), The Regulation of Sport in the European Union(Edward Elgar 2007) ch 3; G Auneau, ‘Jurisprudence’ (2007) 43 RTDE 361.
  • [2] Meca-Medina (n 28) para 3 of the judgment, which also notes that the swimmers had notappealed the CAS ruling before the Swiss Federal Court. On the CAS, see Ch 2.
  • [3] Case T-313/02 Meca-Medina and Majcen v Commission [2004] ECR II-3291. 32 Meca-Medina (n 28). 33 ibid para 49.
 
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