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Sport Law Insight: Anti-Doping Rules

In Meca-Medina the Court of Justice considered a challenge brought by two swimmers against a doping sanction imposed on them following a failed test. Having been suspended for four years, reduced to two on appeal, the swimmers filed a complaint with the European Commission alleging a breach of EU competition law. The claim was founded on the accusation that the setting of the prescribed doping limit was a concerted practice between the International Olympic Committee (IOC) and the 27 laboratories accredited by it, that the limit was scientifically unfounded and could lead to the exclusion of innocent or merely negligent athletes, and that the establishment of tribunals responsible for the settlement of sports disputes by arbitration (such as the CAS) were insufficiently independent of the IOC thus strengthening the anti-competitive nature of that limit.

The Commission rejected the complaint by finding that the contested rules fell outside the scope of the Treaty. On appeal, the Court of First Instance largely agreed by finding that anti-doping rules concerned an exclusively “…non-economic aspect of that sporting action, which constitutes its very essence”. On further appeal, the European Court of Justice dismissed this reasoning by finding that “it is apparent that the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down”. In determining whether the contested rule fell within the scope of Article 101 TFEU, the Court found that “account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives… and are proportionate to them”.

In terms of the context in which the doping rule was adopted, the Court took the view that anti-doping measures had as their legitimate objective questions of fairness, equality of arms for athletes, athletes’ health, the integrity and objectivity of competitive sport and ethical values in sport. The anti-doping rules do not infringe EU competition law because they are “inherent in the organisation and proper conduct of competitive sport and its very purpose is to ensure healthy rivalry between athletes”. Nevertheless, the court acknowledged that the sanctions attached to anti-doping rules “are capable of producing adverse effects on competition because they could, if penalties were ultimately to prove unjustified, result in an athlete’s unwarranted exclusion from sporting events, and thus in impairment of the conditions under which the activity at issue is engaged in”. It follows that, in order to escape condemnation under Article 101 TFEU, anti-doping rules must be limited to what is necessary to ensure the proper conduct of competitive sport.

The reasoning of the court in Meca-Medina is apt for transposition into future EU sports cases involving both competition law and free movement challenges. The judgment has however been criticised for restricting the so-called ‘sporting exemption’ in EU law, first developed in the Walrave case of 1974. In it, the Court determined that sporting rules fell outside the scope of the Treaty if they were motivated by purely sporting interest. Now, the Court considers that even purely sporting rules need to be assessed under the Treaty rules.