Cañas, anti-competitive doping rules and injury-curtailed careers

Retirement comes too soon for many professional sports players, but for Guillermo “Willy” Cañas, an Argentinean tennis player ranked once ranked world number 8, there was yet more to be lost upon retirement than just the tournament prizes and sponsorship deals.

For a number of years Mr Cañas has been attempting to challenge the alleged anti-competiveness of certain anti-doping rules by means of a complaint to the European Commission. The Court of Justice of the European Union (“CJEU”) has now held that the fact of his retirement due to injury, which occurred between his making the complaint and the case reaching the European courts, meant he was effectively no longer able to pursue his grievance through this route. The judgment is currently only available in French.
The background to the case is as follows. In 2005, whilst at the height of his career, Mr Cañas tested positive for hydrochlorothiazide, a substance banned under the Association of Tennis Professional’s (“ATP”) antidoping rules. Mr Cañas pursued appeals which led to a reduction but not the removal of his suspension by the ATP.

In the summer of 2007, Mr Cañas took the somewhat novel route of making a formal complaint to the European Commission under Article 7 of EU Regulation 1/2003 which relates to EU competition rules. Mr Cañas alleged that the anti-doping rules contained in the ATP Official Rule Book were excessive and disproportionate and that the bodies responsible for producing them had adopted agreements or concerted practices which unlawfully restrained competition between professional tennis players. More than a year later, the Commission responded to Mr Cañas, having taken a decision there was a “lack of Community interest” in the complaint which did not justify its further investigation.

Mr Cañas brought a challenge in the European Courts against the Commission decision not to investigate his complaint, first in the Court of First Instance and then to the CJEU.
The General Court kicked out Mr Cañas challenge to the Commission decision under Article 113 of the Court’s Rules of Procedure on the basis that it was devoid of purpose given that he had retired since lodging the complaint with the Commission and accordingly no longer had any interest in seeing the Commission decision overturned. That judgment has now been upheld on appeal by the CJEU.

In the course of his challenge and appeal, Mr Cañas made a number of arguments to support his case that he still had a sufficient interest in overturning the Commission decision, including that the end of his sporting career could not be used against him, given the necessarily limited duration of a professional sports career and the allegedly slow procedure when making a complaint to the Commission. Mr Cañas claimed that he intended to return to tennis once his injury had healed. None of his arguments were upheld by the European Courts. The CJEU held that although Mr Cañas had had sufficient interest in the matter at the time he brought his challenge to the Commission’s decision, the Court’s case law provided that an applicant’s interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it. Since he had retired, Mr Cañas had only a general rather than a personal interest in the challenge to the Commission decision.

As to Mr Cañas’ stated intention to return to tennis in future, although the European General Court did not reject this as an irrelevant consideration when determining whether he had an interest in pursuing the appeal, it was considered to be a “future and uncertain” prospect and, as such, one which did not give him a continuing interest in the challenge. Rejecting a future return as uncertain at Mr Cañas’ far from ripe old age of 35, would seem surprising in the context of most professions, but sport is perhaps the exceptional case.

The substance of Mr Cañas’ complaint that anti-doping rules infringe competition law will not now be investigated further by the Commission. By way of comfort for the intrigued competition and sports lawyers amongst us it is worth noting, as set out in paragraph 10 of the CJEU’s decision, that the Commission had commented that in any event the prospects of establishing a breach of competition law in the terms alleged by Mr Cañas were weak.