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The Court of Justice: Meca-Medina

Meca-Medina, which was introduced in Chapter 3 and examined in Chapter 5, is itself a case about governance.!® The Court of Justice in Meca-Medina insisted on a

Meca-Medina (n 3).

jurisdiction to inspect procedures governing doping control to ensure they did not interfere with competition in the internal market to an extent that went beyond what was necessary. That inspection was, in line with the ruling in Wouters, on which Meca-Medina is founded,[1] receptive to the context and particular objectives at stake. This implies a need for proper administration and procedural fairness in anti-doping controls in particular and in sports governance in general, albeit such matters are left unexplored at the level of detail by the Court in Meca-Medina.[2] [3]

In practice one may readily suppose that it will normally be found that chosen procedures do not fall foul of EU law, and this was indeed the outcome of the Court’s examination conducted in Meca-Medina itself. The superior expertise of sports federations, as well as the anxiety to avoid fragmenting the lex sportiva along geographical lines, plead for a restrained application of EU law. The Court is accordingly attentive to the need to allow room to respect the detailed intricacies of decision-making within sport. This is given concrete shape in the Meca-Medina ruling by the Court’s acceptance that the general objective of the rules was ‘to combat doping in order for competitive sport to be conducted fairly’22 and its refusal to find that the controls were excessive either in defining precisely when doping had occurred or the severity of penalties imposed. So Meca-Medina does not immunize sports governance from review conducted in the name of EU law, but it shows an appreciation of the sporting context within which the review takes place.

It has been explained at length in Chapters 5 and 7 that the ruling in Meca- Medina is of great significance in the shaping of EU sports law because of the break it makes with methodologically more ambiguous decisions of the Court in the past. Meca-Medina accepts that few rules are sporting but not also economic in their nature and/or their effect. The majority of sporting practices are not purely sporting, and their compatibility with EU law falls to be assessed on a case-by-case basis. This is a grant of conditional autonomy, not absolute autonomy: EU law puts sporting practices to the test where they conflict with its purposes, most conspicuously the creation and maintenance of the internal market.

The claim of governing bodies in sport to exercise monopoly power to set the rules of the game has a rational basis. It is necessary to define the very nature of the game in a way that is beyond contestation. And this will normally require a common approach globally. As is commonly the case, the problems arise, and the invocation of EU law is common, where that core regulatory role spills over to generate decisions that have commercial consequences.

This is particularly sensitive where the governing body in question has a direct stake in the outcome. There was a hint of this risk of a conflict of interest in Meca-Medina. The swimmers complained that the anti-doping rules were not merely a choice associated with the governance of the sport, but that they were ‘also intended to protect the IOC’s own economic interests’ and so they should not be treated as ‘inherent in the proper conduct of competitive sport’.23 The Court did not disagree that there might be a commercial motivation behind the suppression of doping. A ‘clean’ sport is likely to be readily associated with claimed public health benefits and it will be of greater appeal to sponsors and broadcasters. But in Meca- Medina the Court believed anti-doping control was also a legitimate element in protecting the integrity of the sport and so EU law did not forbid it, provided it was not arbitrary or excessive in its application.

  • [1] Case C-309/99 JCJ Wouters, JW Savelbergh, Price Waterhouse Belastingadviseurs BV v AlgemeneRaad van de Nederlandse Orde van Advocaten [2002] ECR I-1577. See Ch 5.
  • [2] 21 See Meca-Medina (n 3) paras 46—55 of the judgment. cf discussion in this vein of global administrative law in Ch 2.2.5. On anti-doping, and the World Anti-Doping Agency (WADA) and its Code inparticular, see U Haas and D Healey (eds), Doping in Sport and the Law (Hart 2016); M Viret, Evidencein Anti-Doping at the Intersection of Science and Law (TMC Asser 2016); J Gleaves and TM Hunt (eds),A Global History of Doping in Sport: Drugs, Policy and Politics (Routledge 2015).
  • [3] Meca-Medina (n 3) para 43.
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