Ever since the commercialisation of sport in the late 1970’s, an argument has developed regarding the involvement of the judiciary in the sports sector. It has been widely debated in the sports-legal sector as to whether sport, meaning the governing bodies that regulate sport, should have the autonomy to self-regulate. Perhaps the most famous advocate for the self-regulation of sport during this period was the former Secretary of the Football Association, Ted Crocker. He famously ousted a barrister named Edward Grayson for his stance on sport and the law. Grayson strongly believed that there should be some involvement of law in the operation of sport, he could even be credited with creating the theory of Sports Law.[i]Nonetheless, the work of Grayson has sparked discussion into how sport should be regulated and whether governing bodies should be trusted to self-regulate.
One concept that has developed out of the Sports Law debate is the idea of the specificity of sport; the notion that some national, international and European laws do not apply to sport due to the unique nature in which it operates in. A trivial example of this would be that a boxer would not be found guilty of serious body harm, under s20 of the Offences Against the Person Act 1861, for punching their opponent.[ii] The specificity of sport can be extended to many areas of the law, such as criminal law, that are involved in sport. It is when considering how European law is applied to sporting organisations, that fall under its auspices, the concept of the specificity of sport and the context in which it is applied can be observed in practice. In regard to the Crocker v Grayson debate, the principle of the specificity of sport, on one hand, supports Crocker’s argument as it acknowledges that sport requires special treatment compared to other sectors. On the other hand, it supports Grayson’s claim that although sport is unique, intervention and assistance from the judiciary is essential to achieve effective regulation and the preservation of natural justice. It could also be said that the view of Grayson allows the application of a global sports law that is adopted by many countries. Mark James has defined global sports law as the autonomous self-regulation of sport by sport itself.[iii]
There are many cases in which the concept of specificity of sport is illustrated, but none more so than the case of Meca-Medina.[iv]This case concerned two professional long-distance swimmers, David Meca-Medina and Igor Majcen, who had received bans from the International Swimming Federation (FINA) for doping violations. The applicants complained to the European Commission that the decision of FINA was in breach of article 81 EC, which relates to the freedom to provide services under EU community laws.[v]It was the objective of the court to decide whether anti-doping rules were in violation of Community legislation. The court established that there was no breach of Community law because the sanction was based on purely sporting decisions and that it had nothing to do with any economic activity. The decision is key in the context of the sports law debate for many reasons. Firstly, it illustrates that the court has accepted the concept of a sporting context, in which some laws are not applicable to sport. The court decided that the sport of swimming was an environment, or a bubble if you will, in which a decision to ban an athlete from competing was not a breach of European law. The decision is a landmark ruling as after all, the applicants would suffer a financial detriment by not competing. The court ruled that sport was only subject to Community law as it could be categorised as an economic activity, but that this did not mean that decisions holding a purely sporting interest could be scrutinised under Community law.
The objective of the sanction was to preserve fair play and safeguard the health of athletes, an objective which was sufficient enough to support a ban that prevents competition. The court did, however, fail to offer clarity on what sporting rules can fall outside the reach of EU law. Many have argued that the language used by the court has made it more difficult to identify which EU laws are not applicable due to the specificity of sport.[vi]The applicants decided to appeal the Commission’s decision to the European Court of First Instance (CFI), the CFI reiterated a number of points of law. Firstly, the free movement of services principle set out in the EC Treaty has no impact on some sporting rules, such as doping sanctions. The applicants challenged the authority of the International Olympic Committee (IOC) and FINA to issue doping sanctions that had implications regarding the free movement of services. They challenged the authority of these bodies on many grounds. Firstly, they questioned the validity of the doping limit of two nanogrammes (ng) per millilitre (ml) of urine, because this limit does not prevent innocent or negligent parties from being excluded. Moreover, several questions have been asked over the scientific effectiveness of using this limit. The applicants argued that excess Nandrolone (for which Meca-Medinatested a Nandrolone level of 9.7 ng/ml) could have originated from boar meat. The applicants argued that the application of strict liability together with the rulings of the CAS and the International Council of Amateur Sports (ICAS) tribunals, which are both insufficiently independent of the IOC, resulted in an anti-competitive sanction that infringed on EU Community law.
The applicants argued that the anti-doping sanction infringed on the economic rights that are guaranteed under Article 49, Article 81 and Article 82 of the EC Treaty, and whilst the CFI and European Court of Justice (ECJ) did not interfere with the doping sanctions, the ruling did little to offer clarity on which sporting rules fall outside of the EC Treaty. The case of Walrave establishes this principle, that sporting rules can fall outside of the scope of EU law.[vii]The Meca-Medina ruling arguably posed as an opportunity to develop and outline a set of sporting rules that fall outside of the EC Treaty, which would give important guidance to sports governing bodies in how they regulate in line with European law. Instead, the ruling used broad language that did little to prevent future legal challenge in this area. The ECJ failed to clarify when a sporting activity falls within the scope of the EC Treaty, and how someone can engage in a sporting activity when it falls within the treaty. Whilst the Meca-Medinaruling isn’t the only case to not define sporting rules, other rulings have at least provided some discretion over the relationship between governing bodies and European law. The ECJ in the Deliege case could at least establish that sports governing bodies were better equipped to decide in cases concerning national selection, as sports governing bodies would have greater knowledge and experience in this area.[viii]
What was made apparent from the ruling is that a rule does not fall outside of the EC Treaty just because it is sporting in nature. The sporting activity must be assessed in regard to provisions of the Treaty, relating to the freedom of movement and the freedom to provide services. Articles 81 and 82 of the EC Treaty are specifically concerned with restricting competition and abuse of a dominant position, which is precisely what the applicants in Meca-Medinawere accusing FINA of doing. Even if the rules imposed on athletes do constitute restrictions on freedom of movement and freedom to provide services, if the rules concern questions of sporting considerations and has nothing to do with economic activity then, appropriately, Articles 81 and 82 of the EC Treaty are not satisfied.
Whilst theMeca-Medina ruling can draw criticism for not clearly defining which sporting rules fall under the EC Treaty, it did show that a global sports law does exist, and it can be applied to protect the integrity of sport. Although this case concerned whether there was a restriction of the free movement of services, the salient fact of this case is that the EC Treaty cannot be applied to athletes when they threaten the integrity of sport. This case perhaps is the greatest example of the specificity of sport in practice, as in theory the governing party is preventing a worker from carrying out their job. The decision to not overturn the ban is even less surprising as it is a case concerning a doping violation. Performance enhancement has been a major issue for public and private bodies for many years now. The World Anti-Doping Agency (WADA), a Private-Public organisation, was established to combat the threat of performance enhancing drugs. Therefore, it is no surprise that the Meca-Medinarulingallowed doping sanctions to fall outside of the EC Treaty. Furthermore, the establishment and the operations of WADA also shows that governing bodies, assisted by public organisations, are capable of applying a global sports law if it is made with a purely sporting interest.
The legacy of the Meca-Medinaruling is certainly mixed. On one hand, it champions the uniqueness of the sports-law sector. It emphasises how the law is applied to sport differently compared to other sectors, how special care and consideration must be taken in decisions where sport and the law clash. It exemplifies the concept of the specificity of sport and accepts the existence of a sporting context in which the law is often not applicable. On the other hand, the ruling does little to offer clarity over which rules fall under the scope of the EC Treaty. The lack of definition of the term ‘sporting rule’ means that European courts can expect to see legal challenge in this area for years to come. Overall, the case is a perfect example of the uniqueness of sports law.
Questions arising out of the case:
If the it was the objective of FINA, CAS, the European Commission, the CFI and the ECJ to maintain and protect the integrity of sport, why were the sanctions for both athletes lowered? The original sanction issued by FINA was a four-year ban for both athletes, yet at the appeal before CAS in 2000, the ban was reduced to two years. Although the appeal to CAS came before the case reached the European Commission, the CFI and ECJ, it raises questions over whether governing bodies, arbitrary bodies and the courts are all on the same page in regard to applying this global sports law.
[i]Simon Gardiner, ‘Sport and the Law Journal’ (2011) British Association For Sport And Law Vol. 19 Issue 2, 3.
[ii]Offences Against the Person Act 1861 s20.
[iii]Mark James, Sports Law, 3rdedn(2017) Palgrave.
[iv]Meca-Medina and another v EuropeanCommission (Case T-313/02).
[v]Article 81 of the EC Treaty.
[vi]Gianni Infantino, Meca-Medina: a step backwards for the European Sports Model and the Specificity of Sport? (2006)2.
[vii]Walrave & Koch v. Association Union cycliste internationale ECR 1405 (Case 36/74).
[viii]Deliege ECR I- 2549 (Case C-51/96 and C-191/97).