How to Write a First-Class Postgraduate Dissertation in Law (LLM)

Here is a real example of a first-class postgraduate dissertation in law (LLM) that was written by a masters law student at a leading UK university. Instead of giving you a lecture on how to write a post-graduate dissertation in law, we have decided to give you a real example so that you could see for yourself exactly the level of standard you will have to meet to attain a high mark. Some of the formatting of this dissertation has been lost as it was pasted from a word document.

'Charting the application of competition law to sport by the European

Institutions'

The regulation of sport in Europe has always been a contentious issue. The principle of conferral stipulates that the European Union (EU) must act within the limits of the powers conferred upon it by the Treaty. Until the Treaty on the Functioning of the European Union (TFEU, or Lisbon Treaty) entered into force in December 2009, sport was not mentioned in the Treaties at all. This meant that the EU was not granted a competence to operate a 'direct' sports policy. Nevertheless, for many years prior to the enactment of this Treaty, the Court of Justice of the European Union (CJEU) and other institutions have actively participated in forming sports policy and law in the EU, often to the dismay of private sporting bodies and Member States. This essay will examine the evolution of sporting regulation in the EU and observe the characteristics of sport that have led to recognition of its "special nature"[1]. The aim is to outline the journey of the EU institutions, from giving sporting federations autonomy in the creation of rules governing sport to the recent decision in Meca-Medina to apply EU competition law to all types of sporting rules associated with economic activity.

European Union regulation of sporting activity

The 1970's saw two very important cases for sport decided in the CJEU. Walrave and Koch[2]

established that the practice of sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 EC. In this case it was held that the prohibition of discrimination based on nationality does not affect the composition of sports teams (in particular national teams), the formation of which is a question of "purely sporting" interest and as such has nothing to do with economic activity. In short, European law only applies to "economic activities" within the overall meaning of Article 20 of the Treaty.

In Dona[3], it was held that the activity of professional footballers constitutes a remunerated

activity and is therefore subject to Community law. The CJEU first referred to rules of purely

'sporting interest only’[4] in this case. More importantly, it was also held that the rules of private sports organisations are also subject to Community law. The CJEU also followed the approach in Walrave when considering Dona, where again a rule confining a place in the national team to nationals was deemed to be 'purely sporting'.

These cases can be contrasted with Bosman. In this case the court had to consider whether an UEFA rule permitting each national football association to limit the number of foreign players a club may play in a match in their national championship, plus two players who had played in the country of the national association for an uninterrupted period of five years (3+2) rule, breached free movement provisions. Interestingly! the Commission and Advocate General Lenz opined thatrules restricting the employment of foreign players breached Article 81(1) EC (now Article 101 TFEU) as they limited the possibilities for individual clubs to compete with each other by employing players. Nevertheless the CJEU held that the rules did breach Article 39 EC (now Article 45 TFEU) and this was the relevant

legislation that the case was decided on. The nationality rule was upheld to not be of 'purely sporting' interest and therefore could not escape the scope of Community law.

Another, separate FIFA transfer rule requiring payment of international end-of-contract transfer fees within the EU in respect of players who are nationals of an EU Member State was also examined by the Court. Once again the CJEU ruled that the regulation was contrary to Article 39 EC but did not scrutinise the rule under Article 81. Advocate General Lenz was of the opinion again, however, that the rule did contravene Article 81. He stated that the transfer rules:

" ... replace the normal system of supply and demand by a uniform machinery which leads to the existing competition situation being preserved and the clubs being deprived of the possibility of making use of the chances, with respect to the engagement of players, which would be available to them under normal competitive conditions”.[5]

There is a clear problem with attempting to distinguish between economic and 'purely sporting' rules; it is not always easy to identify those "purely sporting rules" (or "non- economic" rules) that fall outside the scope of EU law. In terms of the application of EU competition law to sport this has led to some difficulties, which will be examined later in this essay. Essentially, both the CJEU and the European Commission (the Commission) have left the question of whether a sporting rule is "purely sporting” or economic to be resolved on a "case-by-case" basis.

As Szyszczak notes, subsequent cases (Lehtonen[6], Deliege[7],Kolpak[8] and Simutenkov[9] ) found that sport-related activity can be economic in nature and therefore "caught, to some degree, by ommunity law"[10]. What was dearly missing though was a sense of clear methodology to determine why this is the case. Bosman in particular has been criticised because "it emphasised the incompatibility of the FIFA football transfer regime with the fundamental economic provisions of the EC Treaty but provided no guidance on how to resolve the issues, particularly when competition law provisions were applied to sport related activities".[11] It was not until Meca-Medina[12] that the CJEU finally clarified the EU's position on the regulation of 'purely sporting' rules and importantly, the application of competition law to sport.

Bosman did two things; it highlighted the disjunction between older cases such as Wafrave, (where rules were viewed as being of 'purely sporting interest') and the commercial reality of modern sport. It also showed that sporting rules made by autonomous associations will not always escape the application of EU law. As Constantine demonstrates in his essay[13], sport is big business. Therefore the internal rules that regulate it have major economic effects on investors, supporters and participants. Manville says, "it would be incomprehensible that rules laid down by undertakings in a sector where billions upon billions of Euros are generated each year should be exempt from the scope of the Treaty[14] . This hyper-commercialisation of sport means it is now far more difficult to argue that a sporting rule that is alleged to have breached EU competition law is purely sporting and therefore exempt from application of EU law.

The "sporting exception" or "specificity of sport"

In Walrave and Dana the CJEU acknowledged the "special nature" of sport. Apart from alluding to sports social significance, however, the CJEU failed to fully define the concept of the "specificity of sport" in either of the cases mentioned above. The real turning point in the EU's policy towards sport came after Bosman. Having recognised sports social importance, the European Parliament (EP) conducted several reports on the issue of how sport could playa role in European integration (Larive Report, Pack Report[15]). In 1998 the Commission prepared a consultation document[16] that contained a section outlining the 'features and recent developments' of European sport. Fundamentally, the Commission introduced the concept of a European model of sport:

"There is a European model of sport with its own characteristics. This model has been exported to almost all other continents and countries, with the exception of North America. Sport in Europe has a unique structure. For the future development of sport in Europe these special features should be taken into account."[17]

There are two key organisational characteristics integral to European sport highlighted by the Commission's paper. The first is the structure under which it is organised: "Basically the structure resembles a pyramid with a hierarchy".[18] Starting from the bottom, this structure is formed by clubs, regional federations, national federations and European federations.[19]  This arrangement is important when discussing sport in the context of competition law because. the vertical dimension of this structure also gives it a hierarchical nature. The Commission recognised this element of sporting organisations and pointed out that national and European federations have a 'monopolistic' position and that by using their regulatory power "these organisations try to maintain their position "[20]. EU competition law seeks to

maximise transparency, competitiveness and fairness in a free market and therefore the rules and operating systems of sporting organisations that evidently have a monopoly arguably need to be scrutinised intensely so as to avoid anti-competitive practices. Article 102 TFEU specifically seeks to prevent abuse by those parties in a dominant position. As sporting federations are the sole organisers of the competitions they manage and profit from, abuse of position is clearly something that can occur.

The second organisational characteristic identified by the Commission is the system of promotion and relegation. As explained on page four of the .report, the pyramid 'implies interdependence between levels, not only on the organisational side but also on the competitive side'. In short, Europeansport is an open system of competition where clubs at the lower levels can feasibly be promoted to the top tiers of their respective sport.

As well as these organisational characteristics, the Commission identified three different features inherent in European sport that are related to ideals of social cohesion: a grassroots approach, commitment to national identity and the existence of international competitions. The 'grassroots approach' ultimately means that the Commission believes that the development of sport originates from the level of local clubs and is not linked to business. The second feature recognised by the Commission was the 'commitment to national identity or even regional identity' as it gives 'people a sense of belonging to a group’[21] The third feature that was highlighted is the existence of national competitions where national teams compete against each other. The Commission explained that this is an opportunity for countries to exhibit their different traditions and cultures. The Commission determined that this type of competition on an international stage is extremely important with regard to "safeguarding Europe's cultural diversity”.[22]

In the Declaration on Sport (Declaration 29) of the Treaty of Amsterdam[23] , the Intergovernmental Conference on the Treaty of Amsterdam called on the institutions of the European Union to pay attention and listen to sports associations when important questions affecting sport are at issue, and to give special consideration to the particular characteristics of amateur sport. A similar set of ideals are set out in a Declaration attached to the Presidency Conclusions of the Nice European Council[24]

The Helsinki report of 2000 recognised sport's growing commercialisation and analysed the

development of this in Europe, maintaining the importance of sports social function within

the Community framework. Notably, they stated that sport is an instrument of education

based on ethics of fair play, equal opportunities and reward for sporting merit. Crucially, it

also recognised the "specificity of sport”[25], in that there is a requirement that the result

must be uncertain, and in order to achieve this objective there must be a degree of equality

in competitions. At this point it seems that the Commission were beginning to see that the

commercialisation of sport could have a detrimental effect on its social and cultural

elements. However they still seemingly endorsed the Walrave approach of separating the

economic activity from 'purely sporting rules' by taking the view that the 'rules of the game'

are not caught by Article 81 EC.

It is important to note that all of the above mentioned reports (apart from the Helsinki

Report) were produced before the explosion in the commercialisation of professional sport

(particularly football) in Europe. This may go some way to explaining why the Commission

were still making the distinction between the 'economic activity' of sport and 'purely

sporting rules'. At the time the Helsinki Report was produced, sport had certainly changed

and become more commercialised, but it was nothing like the formidable beast that it

currently is.[26]

In terms of competition law the unique and specific nature of sport is very important. In other sectors, competition results in the elimination of inefficient firms from the market. What makes sport so different is that it is not in the interests of competitors that weaker teams are eliminated. With this in mind the Commission recognises that the unique nature of sport may affect the analysis of organisational sporting rules under EU law.

European Union competition policy

For the purpose of this section it is important to first clarify what constitutes 'economic activity' as any entity engaged in this type of activity must adhere to the principles of competition. The characteristic features of 'economic activity' are not found in any of the Treaties but in European case law. The cases seem to show that the characteristic feature of an 'economic activity' is (1) the offering of goods or services on the market,[27] (2) where that activity 'could, at least in principle, be carried on by a private undertaking in order to make profits[28]. If both of these requirements are satisfied it is immaterial whether the body is not profit-making[29] or that it was not set up for an economic purpose.[30] Regarding football clubs, the Commission has stated;

"Professional football clubs that engage in economic activities, like transferring players, concluding advertising and sponsorship contracts and distributing merchandising articles are to be considered undertakings within the meaning of the competition rules of the EC Treaty[31]."

The relevant legislation regarding EU competition law can be found in Articles 101 and 102 TFEU (formerly Articles 81 and 82 of the EC Treaty). These regulations lay down rules implementing the provisions of the TFEU relating to agreements, decisions by associations of undertakings and concerted practices which may restrict competition (Article 101 TFEU) and abuses of a dominant position (Article 102 TFEU).

The application of EU competition law to sport is a much vexed issue because, as has been noted by commentators, "[t]he competition rules of the EC Treaty were drafted with more orthodox industries in mind than sport[32]". Horizontal cooperation between economic competitors is generally viewed with suspicion by competition law. In sport, however, a degree of cooperation between sporting competitors is often necessary to create the sporting product itself (e.g. a league competition) and/or to safeguard certain intrinsically valuable aspects of a sport (e.g. agreement on doping rules in order to maintain a perception of fairness of competition). A degree of financial redistribution between sporting competitors (typically from stronger to weaker participants) may also be desirable in order to maintain uncertainty of outcome. However, those considerations do not apply to all forms of co-operation in the sporting sector: certain agreements, such as the joint or centralised marketing of sporting media rights, are primarily economic in nature and are not directly related to the characteristics or organisation of the sporting competition itself.

EU Competition policy and sport

As Richard Parrish notes in his seminal work "Sports law and Policy in the European Union”[33], the Commission has a constitutional duty to follow the CJEU's line of reasoning on sport, given its role in enforcing CJEU rulings. This goes some way to explaining the EU's application of competition law to sport. After sport was placed on the EU's systemic agenda in a regulatory form thanks to the CJEU's decisions in Walrave, Dona and Bosman, it passed on to the EU's institutional agenda through this regulatory venue, Parrish notes that sport was viewed in this context with "the prevailing definition stressing sports commercial significance over and above its social, cultural and educational dimensions".[34] There are however, two more forces that have influenced the Directorate General for Competition Policy's application of competition law to sport; administrative and political. Parrish says that the former has come about as a result of the Commission's decision to devolve its competition powers to n,ational courts and regulatory agencies,[35] the latter because the environment in which the Commission operates is not immune from the wider political context. The EU's institutional agenda is very open and affords actors the "opportunity to exploit a multiplicity of venues in order to influence policy ".[36] Ultimately, the Commission has had to adhere to its constitutional obligation to safeguard the fundamentals of the Single Market and balance this with "administrative and political pragmatism".[37]

Despite case law confirming sport's relationship with EU law, in the immediate aftermath of Walrave and Dona the Commission did little to enforce the central findings in both cases. As a result, throughout the 1970s and 1980s the Commission took very little interest in the operation of sport. There were four factors that changed this according to Parrish; 1) the link between sport and competition law became more likely after the maturation of the Director General for Competition Policy in the 1980s, 2) this maturation coincided with an accelerated push to complete the Single Market, 3) sport only began to practice as a truly economic activity in the late 1980s/early 1990s[38] and 4) the ruling in Bosman was a groundbreaking case that seemed to change the Commission's thinking on sport and confirm its status as an economic activity.

After Bosman; the rules that were devised and laid down by European sports bodies with the intention to maintain a competitive balance between participants came under greater scrutiny by the Commission. The broad definition of anti-competitive behaviour adopted by the Commission and CJEU means that many sporting rules that have been in practice for a long time may infringe competition law whenever sport is practised as an economic activity within the meaning of Article 2 of the Treaty. This essay is concerned with those rules that affect the contest market[39] . That is those rules which are inherent in the organisation of the game. These rules are those that have traditionally been referred to as "purely sporting" but, as will be made evident, are now sometimes seen by the court as rules that relate to the economic activity of sport.

After Bosman

Post-Bosman and before Meca-Medina[40] there were several cases involving sporting rules

allegedly breaching Articles 81 and 82 EC (now 101 and 102 TFEU). The cases concerned a

wide spectrum of rules, not just those regarding nationality requirements for team

selections.

Traditionally, sports organisations have operated a system of self-regulation.[41] However, the

commercialisation of sport has contributed to the erosion of this autonomy and has increased the scope of EU competition law in sport. Competition law is first concerned with the maintenance of the traditional single structure model of sport[42]. Any challenges to UEFA's (or any other sporting bodies) organisational monopoly would require Commission approval. The only real attempt at challenging this conventional model was made by Media Partners International Ltd, a marketing firm that complained to the Commission about the rules adopted by UEFA designed to prevent the establishment of a breakaway league. The company was unsuccessful as UEFA proposed a counter-measure that led to the Football Champions League being revamped to accommodate the views of the majority of Europe's top clubs.

Parrish questions how likely it is that a proposal seeking to challenge the single structure model of sport in Europe would pass Commission scrutiny. The proposal would have to maintain a competitive balance between all participants, large and small. Furthermore, the Commission's consultation document entitled "European Model of Spore', the Helsinki Report identify the unique pyramidal structure model of organisation as being intrinsic to European sport. Arguably, if other breakaway leagues were able to be created and compete for competitions, the very nature of sport and how it is organised in Europe would fundamentally change and this would prompt review by the Commission as to how this affects the 'specificity of sport'.

Competition law's second concern is with multiple club ownership. UEFA passed a rule on club ownership in May 1998 proposing that firstly, no club should have a financial or management interest in another club which participates in the same UEFA competition. Second, no person should be involved in the management of more than one club participating in the same UEFA competition and third, no person or company may control more than one club participating in the same UEFA competition. The main concern for UEFA (and what they sought to  discourage/eliminate opportunities to do) was contrived results and strategic player transfers.

In ENIC/UEFA[43] / ENIC (English National Investment Company) appealed to the Court of Arbitration for Sport (CAS) against UEFA's 1998 rule on multiple club ownership, arguing that it restricted competition. The Commission rejected this complaint as although they found that the rule was a decision taken by an association of undertakings (and therefore could be theoretically caught within the scope of Article 81 EC, now Article 101 TFEU), the rule was a sporting rule and was essential in order to maintain the integrity of the competition. Its objective was to protect the integrity of UEFA tournaments by avoiding any perception that the outcome of a match was not uncertain, and the rule did not go beyond what was necessary to ensure the legitimate aim of protecting the uncertainty of the results of games in the interests of protecting credible competition. Crucially, in this case, Wouters[44] , a competition law case, was considered (although not applied) in the Commission decision.

In Mouscron[45], the Communaute Urbaine de Lille complained to the Commission under Article 82 EC about the "at home and away from home" rule which applies to UEFA competitions. This rule stipulated that the home game of a tie over two legs must be played at the home ground of the relevant club. The Commission once again distinguished this rule as a sporting rule that did not fall within the scope of Articles 81 and 82 EC. It was held that this rule was vital for the organisation of national and international competitions so as to ensure that all clubs had an equal chance, and the rule did not go beyond what was necessary to achieve this objective. Mouscron and ENIC are prime examples of the Commission recognising the "specificity of sport[46]"in that there is a requirement that the result must be uncertain.

In Deliege[47] , a female judoka was not selected to represent her country (Belgium) in an international judo tournament. She argued that the system for selecting judokas for national tournaments breached her right to provide services under Article 49 (ex 59) of the EC Treaty. The rule in question was created by the European Judo Union and stated that only national federations could enter athletes in certain tournaments[48]. Deliege attempted to claim that in not being selected for the national team, her freedom to provide services was being restricted and that the rules were anti-competitive. The CJEU held that the selection rules limiting the number of judokas were not discriminatory[49] . They also paid heed to the 'pyramid' structure of judo as a sport, noting that it was the responsibility of sporting organisations to set down rules and thus make selections accordingly[50].

Lehtonen[51] concerned  transfer deadlines and the CJEU was asked to consider whether these were valid under competition rules and free movement of workers provisions. Transfer deadlines stop clubs from buying players after a certain date in the season. The objective of this rule is to prevent teams from buying players at crucial points in the season as this could distort the integrity of the competition. This type of rule is another function of the 'specificity of sport'; a restriction on competition in any other sector would be unthinkable but in sport it is fundamental to the nature and proper function of the sporting competition taking place. Although transfer deadlines were considered a de facto restriction on the free movement of workers, the court held that the rule might be justifiable on non-economic, purely sporting grounds. The CJEU reasoned that setting transfer deadlines " ...may meet the objective of ensuring the regularity of sporting competitions"[52] because late transfers may significantly alter the power of a team in the tournament which in turn could cast doubt upon the competition and whether it was functioning as it should. Any restriction must be proportionate, according to the CJEU. That is to say, the measure (or rule) in question must not go beyond what is necessary to achieve the aim of ensuring the proper execution of the tournament. In Lehtonen, the CJEU decided that the transfer deadline was disproportionate as it discriminated between players being transferred from a federation outside the European zone and players being transferred from a federation inside the European zone.

Deliege and Lehtonen were not decided under EU competition law. The court did not feel it

could pronounce on the application of Articles 81 and 82 because it had not received sufficient evidence and information from the national courts that had referred the case to them. This is unfortunate, as Turner-Kerr and Bell note in their article "The place of sport within the rules of Community law: clarification from the CJEU? The Deliege and Lehtonen cases[53]". However, they worked out two important principles from both judgments. Firstly, rules which are inherent in the conduct andjorganisation of sporting events do not infringe EU law. Secondly, it is for sporting bodies and federations to decide what the appropriate measures are in relation to such rules[54]

.

In Piau[55] the Court of First Instance (CFI) (renamed the General Court by the TFEU) were

asked to rule on FIFA regulations concerning players' agents. At the time, rules existed

stating that a football player's contract was valid only if the agent involved in its conclusion

had a licence issued by the national football association. It was contended that this was a

breach of Articles 81 and 82 EC (Articles 101 and 103 TFEU).

The rules in question were very strict; licensed agents had to pass an interview, have an impeccable reputation and deposit a bank guarantee of CHF 100,000[56]. FIFA subsequently amended the rules because of the Commission's investigation; therefore the complaint was

rejected by the Commission. On appeal, the CFI stated that the activities of a football agent

were not of a 'purely sporting' nature because they did not pursue a purely sporting

interest. Therefore any effort by FIFA (a private association) to restrict the economic pursuit

of football agency should be questioned as to its legitimacy. Rules adopted by FIFA in this

regard would be subject to EU law. Here it is evident that the distinction between economic

and 'purely sporting' rules was once again being made. Only this time, the Commission

were intent on making sure that the area of sport that EU law regulated was protected and

not allowed to fall back under the governance of a sporting body. Perhaps this was an

attempt to claw back some control after the Liberalisation of the market after Bosman.

It was acknowledged by the CFI that the profession needed to be supervised by an

independent entity. However this entity did not exist due to a lack of national laws or public

bodies providing for supervision and the lack of internal self-regulation among agents. The

CFI upheld the Commission's conclusion that the rules did not produce anticompetitive

effects under Article 81 EC. Furthermore, any effects that did existed could be exempted

under Article 81(3) EC. The ruling in Piau made it clear to FIFA and other monopoly sports

federations that the EU institutions were willing to examine their regulations under

competition law.

Meca-Medina: A case too far?

The recent case of Meca-Medina has created shockwaves in the sporting world with some

calling it 'a step backwards[57],. The case concerned two long-distance swimmers, David

Meca-Medina and Igor Majcen, who were suspended from competition for a period of four

years by FINA (Federation Internationale de Natation) for their first doping offence in

respect of positive tests for norandrosterone (a metabolite of and therefore related to

nandrolone which is a banned substance). The swimmers had finished first and second at

the event and as a result had automatically been selected for testing in accordance with

FINA's provision. After their suspension by FINA, the athletes invoked their right (under

FINA's rules) to appeal that decision to CAS.

In accordance with FINA's anti-doping rules, the presence ofthe banned substance meant

that there was a "shift to the athlete/competitor the burden of establishing why he should

not be sanctioned to the full extent provided for under (the rules)". The swimmers were

expected to show how the prohibited substance had got into their bodies and that there

was no negligence on their part in allowing it to do so. Their defence was that the

substance had entered their bodies as a result of eating Brazilian speciality Sarapatel, a stew

based on Boars' testicles. This defence was not accepted and FINA banned them for four

years, so they appealed to CAS. They were unsuccessful in this endeavour and the only

positive outcome of their appeal was that their ban was reduced to one of two years.

Proceedings before the Commission

Although the case was about doping, Meca-Medina did not concern the Community's

burgeoning anti-doping influence[58] . Instead, it concerned the legality of the regulations of

the IOC (International Olympic Committee), a private body whose rules had an inherent

public context and fell within the scope of the EC Treaty (according to the swimmers)

because its monopoly owners had been used in a way which stopped them from

participating in their chosen economic activity.

After the CAS decision was passed down, the swimmers attempted a completely new course

of action by lodging a complaint before the Commission for an alleged breach by the IOC of

Articles 81, 82 (Articles 101 and 102 TFEU) and 49 EC. The swimmers argued that the antidoping

rules adopted by the IOC and FINA restricted competition within the meaning of Articles 81 and 82 EC and that fixing the 2ng/m limit was established by an unlawful concerted practice between the IOC, FINA and the testing laboratories.[59] The athletes' complaints were examined almost exclusively in the light of Article 81 EC. Oddly, the Commission did not mention the Walrave judgment. The Commission accepted that the IOC was both an undertaking and an association of undertakings for the purpose of competition law but "immediately pointed out that the rules and alleged concerted practices at stake did not come within the scope of "'CIO's and FINA's economic activities' ... The Commission stated that anti-doping rules may limit the athlete's freedom of action but are intimately

linked to the proper conduct of sporting competition".[60] The Commission also rejected the complaints under Articles 82 and 49 EC.

Instead of following a Deliege or Lehtonen approach, the Commission explicitly relied on Wouters[61] in rejecting the complaint against the anti-doping rules. It decided that the antidoping rules did not have the object of restricting competition. The rules may have had that effect, but such a restriction on the athletes' freedom to compete was not necessarily a breach of Article 81(1) EC as it may be inherent in the organisation and proper conduct of sporting competition. The Commission concluded that the anti-doping rules were intimately linked to the proper conduct of sporting competition, they were necessary to combat doping effectively and the limitation of the athletes' freedom did not go beyond what was

necessary to attain that objective.

Colomo states that it is difficult to understand why the Commission did not choose to rely on Walrave when rejecting the complaint. In doing so they would have been easily able to conclude that anti-doping rules "did not have as their object or their effect the restriction of competition on the basis of their 'purely sporting' nature[62] . The Commission's previous

indication in the Helsinki Report that seemed to endorse the Walrave approach made their decision not to use it all the more confusing. Colomo notes that in the previous case of Deliege (a case heard before Wouters) Advocate General Cosmas, and Advocate General . Alber in Lehtonen, examined the nature of the sporting rules under Article 81 EC and relied on Gottrup-K/im e.a.  rovvareforeninger v Dans Landbrugs Grovvarese/skab AmbA[63] to do so. This case is a 'rule of reason' judgment that is considered as the predecessor of Wouters. Colomo argues that the 'rule of reason' type of analysis is at odds with the structure of Article 81 EC.

Colomo says that these peculiarities demonstrate how difficult it is for the Commission and the CJEU to "protect the alleged 'particularity' of sports rules without distorting the legal reasoning. In this sense, the reference to rules of 'purely sporting interest', as the CJEU did in Walrave, seemed more effective in circumventing the logical consequences of applying EC law, since it constituted a 'tailor-made' test."[64] This is not the only time that the EU's legal reasoning in a sport case has been called into question[65] .

However, maybe there was an underlying reason for the Commission mentioning Wouters. Perhaps the Commission saw Meca-Medina as an opportunity to reassert their authority to regulate sport and therefore introduced Wouters because they foresaw that the approach in Gottrup-K/im would not allow them to effectuate this.

Proceedings before the Court of First Instance

The swimmers were not happy with the rejection of their application and appealed to the

CFI. Whilst the CFI noted that high-level sport had changed and become "to a great extent,

an economic activity[66]", they did not agree that the campaign against doping was for the purpose of pursuing "any economic objective”[67]. Rather, they saw it as a method of

preserving "the spirit of the play"[68] and "the health of the athletes”[69].

This approach seemed to draw a parallel with the 'sporting exception' that existed in the environment of free movement law before Bosman. If the decision had not been later overturned then the sporting organisations would have had absolute autonomy over their

anti-doping policies but this could have come at a cost to athletes who would not have a remedy in European law because EU law would only be applicable if 'economic activity' was

found to be present. This attempt to separate the economic aspects from 'purely sporting'

aspects was flawed in more than one way. The ruling that anti-doping rules, with clear

economic effects for both athletes (depriving them of sponsorship deals and fees) and

sporting federations[70] are rules of purely sporting interest is an impractical method of

validating regulations. As Weatherill notes:

"Perhaps there is.a (small) category of purely sporting rules unassociated with economic

activity, but regulations inherent in the organisation and proper conduct of sporting

competition form a much larger category in which economic effect is commonly present”[71]

Trying to separate economic and 'purely sporting' rules would mean that regardless of how

unreasonable and harsh (or unduly lenient) sports federations' anti-doping rules were, they

would always escape the application of the Treaty.

In particular, the CFl's lack of reconciling their approach with the existing jurisprudence on

competition law found in JCJ Wouters, JV Savelbergh and PWC BV v Algemene Raad van de

Nederlandse Orde van Advocaten (Case C-309/99 [2002] ECR 1-1577) was an error in law.

The Commission relied on Wouters when making their decision so it was incorrect for the

CFI to examine the case on the basis of Walrave. It also seems logical that in a case argued

on competition law rules, the court should have taken the approach of applying the relevant

case law test to the facts in question in order to ascertain whether competition rules had been breached. Instead of doing so however, the CFI explored "intellectually murky alleyways[72] so that they would not touch upon the autonomy of FINA and the 10C.

The CJEU's decision

Even though the CJEU's decision failed to overturn the CFI's judgement in terms of giving

the swimmersthe remedy they wanted, it was still extremely significant legally. The

decision corrected the mistakes made by the lower courts and also denied sporting bodies

the 'sporting exception' to European law that they had been hoping for (possibly even

relying on) given sport's special status in Europe. The Advocate General's Opinion that antidoping rules were 'purely sporting' in nature was rejected by the CJEU. Instead, they

decided that it was

"apparent that the mere fact a rule is purely sporting in nature does not have the

effect of removing from the scope of the Treaty the person engaging in activity

governed by that rule or body which has laid it down[73]”.

In short, this means that there are no sporting rules which can escape the Treaty rules when

the sport constitutes an economic activity within the meaning of Article 2 EC. At this point

the focus moved away from. an artificial distinction between sporting rules and economic

rules. Instead, the CJEU preferred to concentrate on a more realistic distinction; between

the activities of sportsmen and the rules governing these activities.

Therefore, the CJEU analysed the anti-doping rules in the context of competition law

provisions, specifically Article 101 TFEU. The Court needed to determine what the rules'

objectives were and to find out their effects on the sporting community, and subsequently

consider whether these rules were proportionate to the identified objectives. In order to do

this the CJEU applied the test found in their earlier judgement in Wouters[74]  to the antidoping

rules.

Despite some arguing that applying the Wouters test was unreasonable, in doing so the

CJEU were not acting out of sorts in the slightest. The Court was "simply applying general principles governing the interpretation of Article 81(1)[75]. It is not even possible to argue

that this approach was new in a sporting case because, as Callery and McArdle point out[76]

,in both Bosman and Deliege[77] the DLG[78] case (which concerned the application of European

competition law to an agricultural co-operative's purchasing rules and underpinned the

reasoning in Wouters)had been cited before the courts. DLG[79] was also considered by the

Commission in Mouscron[80]. Even more recently, in the ENIC case already mentioned,

Wouters was considered in the decision. Instead of wondering why the Wouters test was

applied to a sports law case, people really should have been questioning why the CFI felt it

necessary to depart from the formula that had previously been used or at least considered

in sport and competition cases in Europe.

In Wouters; the court decided that a Dutch law operating within the legal profession prohibiting multi-disciplinary partnerships between barristers and accountants was contrary to competition law in the context of economic activity. However, this did not mean that the undertaking in the case had used its powers unlawfully. The CJEU was required to have regard to lithe overall context in which the decision of the association of undertakings was taken or produces its effects. More particularly, account must be taken of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives”[81]. This is the Wouters test; in short, an interference with the competitive process is not a restriction of competition if it pursues a legitimate objective in a proportional way. The concept of inherency mentioned in the test is fundamental when examining the CJEU's application of the Wouters approach in MecaMedina. Following the Wouters approach in a straightforward manner would have involved a consideration of whether the anti-doping rules were appropriate and proportionate bearing in mind the wider context. However, as Callery and Mccardle point out, in Meca-Medina the courts attempted to "give effect to the Wouters concept of 'inherency' in the sporting context’[82] , advising:

"even if the anti-doping rules at issue are to be regarded as a decision of an association of undertakings limiting the appellants' freedom of action, they do not, for all that, necessarily constitute a restriction of competition incompatible with the common market, within the meaning of Article 81 EC, since they are justified by a legitimate objective. Such a limitation is inherent in the organisation and proper

conduct of competitive sport and its very purpose is to ensure healthy rivalry between athletes”[83]

The inherency concept with regard to rules t~at are intrinsic to the organisation of sport has been discussed before in this article in reference to Deliege. It has even been suggested that through this approach "the Court transpo\>ed the 'inherency' criterion from Deliege (a free movement case) to EC competition law, despite formally rejecting any convergence[84] and that facilitating the transposition of the inherency principle in this way would be an immensely significant development because it seems rules created by sporting bodies which were regarded as 'inherent' would not then need to be objectively examined.

One has to question the validity of examining rules in sport using the 'inherency' concept. Sports were practised for many hundreds of years without certain rules such as the antidoping ones analysed in Meca-Medina. Therefore it is hard to find a rationale for the argument that those rules are 'inherent' to the game. Callery and McCardle also note that "it is difficult to discern a rationale for the argument that limitations on freedoms that are imposed as a consequence of doping rules are somehow 'inherent' in sports practices”[85].

However, it is true to say that the premise of sport and what sets it apart from other areas in the EU is that it is founded on the principle of fairness and competitiveness in the game, and there is an 'inherent' duty for sporting bodies and organisers of the game to protect and maintain this institution. Therefore the rules that they put in place to maintain this could be argued as pertaining to the 'inherency' concept because of the underlying reason for their existence.

Meca-Medina is significant in that it was the CJEU's first examination of the relationship between competition law and sport and departed from the classic sporting jurisprudence in favour of the Wouters framework. This structure demands analysis on a case-by-case basis which is exactly the same approach that has been taken by the CJEU with regard to sport throughout the history of the EU. The only difference is that the EU has recognised that the previous jurisprudence on the matter that suggested a clean separation between rules of 'purely sporting interest' and rules with an economic impact was an incorrect way of breaking down rules operating in sport. In examining the anti-doping rules of the case in question, the CJEU realised that most sporting rules visibly have economic repercussions. Therefore what is at stake "is nor 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 EC trade law[86].

Whilst Meca-Medina extinguishes the argument used by sporting bodies in previous cases that certain rules are exempt from Community law because they have a 'purely sporting' nature[87]

, it does not completely eradicate the 'sporting exception' in Walrave. This is because Meca- Medina concerned the application of competition law whereas Walrave concerned free movement. As Parrish and Miettinen show, "the original exception (in the context of the free movement provisions, see Walrave) has yet to be expressly overruled"[88] As the case was heard under competition law rules it does not have the competence to extinguish the existing exception in the free movement field. However, it is now for sporting bodies to explain that although their rules may seem restrictive or unfair, they are nonetheless necessary. Callery and McCardle say that it is now essential for sporting bodies to explain why restrictive rules are necessary in some circumstances. They cite Weatherill and his argument that "as Meca-Medina shows, there remains scope for sport to protect its right to assert internal expertise in taking decisions that have both sporting and economic implications: The CJEU has collapsed the idea that there are purely sporting practices unaffected by EC law despite their economic effect, but it has not refused to accept that sport is special”[89]

The future

There has been considerable criticism from within the sporting community of the decision in

Meca-Medina. However, as already argued, the CJEU had previously hinted at their willingness to use or consider competition law in several cases prior to Meca-Medina. Along with this, the old argument that sporting rules that are non-economic in character do not fall under the Treaty simply does not hold sway anymore[90]  Although the economic nature of the doping rules in Meca-Medina is evidently secondary to their sporting context, it is important to take into account the commercial realities of sport at the elite level.

Further criticism attacting the Court's intentions has been put forward by Gianni Infantino, former Director of Legal services for UEFA. Specifically, he argues that the purpose of the Court is to apply the law so as to create judgments suitable for application at national level and thus ensure legal certainty, and that in Meca-Medino this principle was departed from. He disagrees with their reasoning and says that the CJEU has shown little interest in defining the scope of the sporting exception and "has moved in the opposite direction in such a way that is likely to increase the scope for legal uncertainty and result in more competition law claims being levelled against sports bodies”[91]. FIFA also expressed its disappointment at the ruling in Meca-Medina in the White Paper on sport[92]. However, Callery and McArdle ask, why should a case-by-case approach be detrimental to the interests of sports at all? They argue that by "analysing each case in turn, the courts are acknowledging and respecting the inherent peculiarities of each sport and, indeed, responding to the unique factors of each individual dispute”[93]. They also allude to the "wide-ranging monopoly powers" of sporting organisations and state that they "should be able to show that they carry out their role fairly, transparently, in accordance with lawful rules and without bias”.[94]

Some academics have welcomed the decision in Meca-Medina because it "prevents intellectually wasteful arguments about what is 'sporting' and what is 'commercial', and instead embraces the overlap of the two spheres[95] " Sporting bodies have what Weatherill describes as a "conditional autonomy", meaning that there is an overlap between EC law and 'internal' sports law which is recognised. Within this area of overlap "sporting bodies have room to show how and why the rules are necessary to accommodate their particular concerns[96] “. This is the conditional autonomy that sports federations are granted under EC law. One could also argue that sporting bodies have been relying on the 'sporting exception' for many years and that has meant that they have been given an unfettered discretion over all rules that are intrinsic to the organisation of the game. Whilst their expertise in matters of organising and governing sport is unquestionable, it is also true to say that they have a duty to ensure that there is a fair and competitive element to sporting competitions and because sporting organisations have an economic interest in the competitions that they regulate, exterior regulation is therefore needed to ensure that rules are not created solely for the benefit of one party.

Perhaps even more appreciably, sport's significance in so many social, economic and political ways could contradict the argument that it should be afforded special treatment. In fact, it is for the very reason that sport has so much influence in so many different areas of the EU and because it is so important to millions of people that it must not be excluded from competition law. In order to preserve sport's special nature, those who organise and govern it must be held accountable so that fairness of the competition can be maintained. There are certain properties that make sport 'special' but many other economic sectors also have special, distinguishing attributes and competition law is not any less able to take these into account than it is to accommodate the unique features of sports. Before Meca-Medina it could be argued that a sporting rule which had an economic effect could be immunised from challenge merely because it was a sporting rule. Henceforth, any sporting rule which restricts  competition will need to be shown to have effects no more far reaching than are inherent in pursuit of legitimate objectives. This is arguably a welcome change to the old 'sporting exception' methodology as now that the EU has recognised sport's radically transformed status in terms of its economic power, it has sought to mitigate any further distortion of abuse of sport's role within the EU by ensuring that rules that have an unquestionable economic impact are subject to the relevant legislation.

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