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2016 | OriginalPaper | Buchkapitel

13. Rights and Wrongs of and About Nationality in Sports Competition

verfasst von : James A. R. Nafziger

Erschienen in: Fundamental Rights in International and European Law

Verlag: T.M.C. Asser Press

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Abstract

The determination of nationality is an essential prerequisite of an athlete’s eligibility to join a national team in international sports competitions. Normally, the regulations of sports associations, subject to the requirements of domestic law, supply the accepted definition of nationality. Provisions of international law and practice, however, may in certain circumstances apply to athletes as well. This chapter examines pertinent issues concerning the determination of the nationality of athletes, such as the growing practice of country swapping and ‘quickie citizenships’ in the international sports arena. Despite substantial litigation and arbitration of nationality issues, the trend in international sports law is toward relaxing both durational residency requirements and the traditional objection to dual nationality. It is argued that the resulting opportunities for athletes and athlete-investing countries overshadow concerns about commodification of acquired athletes or confusion about national identity.

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Vorheriges Kapitel The Enforcement of CAS Arbitral Awards by National Courts and the Effective Protection of EU Law

The Asser Institute’s renowned expert on sports law wrote trenchantly as follows:

‘The core of the problem is the extreme diversity of the legislation concerning the acquisition of ‘ordinary’ nationality in the world community of states. The conditions and required residency periods for naturalization differ greatly per country. In one country, a candidate national must have resided in that country’s territory for at least 3 years in order to be eligible for naturalization, while in another country this may be 5 years, and in yet another country 10. States have further established quite diverse additional requirements as to the necessary degree of integration. On the other hand, however, the legislation in some countries permits that a foreigner is naturalized almost instantly for reasons of general, national interest! Traditionally, the sports community in principle follows the ‘ordinary’ public law rules concerning nationality. However, already in the past considerable obstacles were put into place by, for example, the international basketball federation FIBA to prevent accelerated naturalization, or rather, to avoid its consequences by applying residency requirements in respect of the adopted country.’ Siekmann 2006, p. 122.

New York Times (23 February 2014), p. SP6; Rick Maese, How did American Vic Wild win a medal for Russia? (Washington Post, 19 February 2014).

See Christopher Clarey, Caribbean newcomers dip their toes in the snows (New York Times, 7 February 2014), p. B14.

Mian Ridge, Caught between countries (Christian Science Monitor, 23 July 2012), p. 32.

See Felix Sanchez Profile (BBC Sports, 11 July 2012), p. 1 (biographical summary).

P.C.I.J., Ser. B., No. 4 (1923).

G.A. Res. 217A (III), U.N. GAOR, 3rd Sess., Pt. I, Res., at 71, U.N. Doc A/810 (Dec. 10, 1948).

O.A.S Off. Rec., O.E.A./Ser. L/V/II.23 doc. 21 rev. 6 (1979) 1114 UNTS 123, O.A.S.T.S. No. 36 (Nov. 22, 1969). Article 20 provides as follows:

1. Every person has the right to a nationality.

2. Every person has the right to the nationality of the State in whose territory he was born if he does not have the right to any other nationality.

3. No one shall be arbitrarily deprived of his nationality or of the right to change it.

Signed at Strasbourg, 6 November 1997, E.T.S. No. 166. Article 6 of the agreement requires, inter alia, that ‘[e]ach State Party shall provide in its internal law for its nationality to be acquired ex lege’ [and] ‘for the possibility of naturalisation of persons lawfully and habitually resident on its territory [and each State party] ‘shall facilitate in its internal law the acquisition of nationality for [several stipulated categories of persons].’.

See, e.g. United Nations Convention relating to the Status of Stateless Persons, 360 UNTS 117 (1954); United Nations Convention on the Reduction of Statelessness, UN Doc. A/Conf. 9/15, 989 UNTS 175 (1961) (prohibits denationalization except for gross disloyalty if it would lead to statelessness).

For example, an advisory opinion of the Inter-American Court of Human Rights confirmed that because nationality is an inherent right of all human beings, Costa Rica’s regulation of nationality was subject to the country’s human rights obligations. Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion, OC-4/84, January 19, 1984, Inter-Am. Ct. H.R. (Ser. A) No. 4 (1984).

See, e.g., Nafziger 2004 pp. 4–7 (citing further authority for the status of the Olympic Movement as an international legal actor).

Nottebohm Case (Second Phase) (Liechtenstein v. Guatemala), ICJ, Judgment of 6 April 1955.

Barcelona Traction, Light and Power Co., Ltd. (Second Phase) (Belgium v. Spain), ICJ, Judgment of 5 February 1970.

The court wrote as follows: ‘These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations.’ Nottebohm, above n. 13 (emphasis added).

‘In this connection reference has been made to the Nottebohm case. In fact the Parties made frequent reference to it in the course of the proceedings. However, given both the legal and factual aspects of protection in the present case the Court is of the opinion that there can be no analogy with the issues raised or the decision given in that case.’ Barcelona Traction case, above n. 14, para 70.

Olympic Charter, Rule 6.

Ibid, Rule 42, bye-law 2.

Ibid.

For example, under United States law all citizens are also nationals, but not all nationals are citizens. A national is defined as ‘a person owing permanent allegiance to a state’, 8 USC § 1101(a) (21) (2012) and a ‘national of the United States’ is either a citizen or ‘a person who, though not a citizen of the United States, owes permanent allegiance to the United States. 8 USC §§ 1101(a)(22)(2012). 8 USC §1408 (2012) lists four categories of ‘nationals,’ all of which involve residence in ‘an outlying possession’ of the United States, a term which is defined to include only two unincorporated territories: American Samoa and Swains Island. 8 USC § 1101(a)(29)(2012).

Olympic Charter, Rule 42.

Ibid., Rule 6.

See e.g. CAS 92/80, B. / International Basketball Federation (FIBA), award of 25 March 1993, para 13.

These examples are drawn from Nancy Armour, Allegiance Pledged (USA Today, 27 June 27 2014), p B1; Kelly Whiteside, Foreign flair: is it fair? (Statesman Journal, 10 June 2014), p. 6C.

USA Canoe/Kayak v. IOC, CAS Ad Hoc Div. (O.G. Sydney 2000), reprinted in II Digest of CAS Awards, 1998–2000, at 13 (2002).

Canadian Olympic Comm. v. IOC, id., at 83.

See James Montague, Kosovo gets a real game if it can assemble a team (New York Times 1 March 2014), p B1O.

Accordance with international law of the unilateral declaration of independence in respect of Kosovo, ICJ, Advisory Opinion of 22 July 2010.

Olympic Charter, Rule 45 bye-law 5 (provision for this status is subject to the approval of the IOC Executive Board and the IF governing a particular sport).

See Mary Pilon, South Sudanese runner to compete without a team (New York Times, 22 July 2012), p. SP6. Also, three athletes from India entered the 2014 Winter Games in Sochi as independent athletes because India’s NOC had been suspended since 2012. After the Games began, however, the International Olympic Committee (IOC) reinstated the NOC, enabling two of the athletes who still had competitions to participate under the flag of India. Jethro Mullen, International Olympic Committee reinstates India at Sochi after ban (CNN News, 11 February 2014), p. 1.

1986 T.L.R. 430.

‘Rules concerning the ‘sporting nationality’ are in fact as divergent between the various international sports federations as they are between the different national public laws concerning nationality.’ Siekmann 2006, p. 123.

See e.g., FIFA (2006) Statutes: Regulations Governing the Application of the Statutes, Article 15(2).

See IFs listed in Shachar 2011, p. 2134.

See Brahima Ouedraogo, Namibia appeal rejected by CAS (Sportsillustrated.com, 10 January 2010).

See generally Emma Stoney, Rule change affords shot at Olympics (New York Times, 29 March 2015), p. SP2.

See Rob Hughes, Mourinho to burst inter’s bubbles (International Herald Tribune, 24 May 2010), p. 1.

See, e.g., Siekmann 2012, pp. 261, 266; Freeburn 2009, p. 182 et seq.

Siekmann 2012, p. 262; Freeburn 2009, passim.

See generally Siekmann 2012, p. 241 et seq.

See Bill Pennington, Poised for a second run (New York Times, 11 February 2015).

See de Groot 2006, pp. 3–4.

Sam Borden, Rejecting the U.S. to skate for Russia (New York Times. 9 February 2014).

Grant Wahl, 2022 Vision (Sports Illustrated, 17 January 2011), p. 32.

See, e.g., David Gonzalez, Pan American Games; Games Lift Spirits in Santo Domingo (New York Times, 8 August 2003), p. D1 (explaining the role of Olympic Félix Sanchez, text at above n. 5, and the related hosting of the Pan American Games in the development of sports tourism to boost the economy of the Dominican Republic).

In the United States, for example, the two recurring questions, typically, are these: ‘Should a player with little connection to the country take the spot of someone who came up through the American system and helped the team qualify for Brazil [site of the 2016 Olympic Games]? Will a player raised elsewhere fight for the flag and care as much as someone raised in red, white and blue?’ Whiteside, above n. 24.

See, e.g., The millionaire visa (Wall Street Journal, 22 September 2013), p. 12. In the United Kingdom and New Zealand, especially, high levels of investment may earn a faster track in the line for an already assured visa. Ibid., p. 14.

Andrés Cala, Athletes hurdle borders for a better life (Christian Science Monitor, 28 March 2011), p. 14.

Ibid., p. 15.

Ibid., p. 14; Hall 2012, pp. 205, 209; Siekmann 2006, pp. 122–123.

See Shachar 2011, p. 2137; Siekmann 2012, pp. 246–247; Siekmann 2006, p. 123.

de Groot R (2006) Remarks on the relationship between the general legal nationality of a person and his sporting nationality. Int Sports Law J 6:3–9

Freeburn L (2009) European football’s home-grown players rules and nationality discrimination under the European Community treaty. Marquette Sports Law Rev 20:177–221

Hall CD (2012) Fishing for all-stars in a time of global free agency: understanding FIFA eligibility rules and the impact on the U.S. men’s national team. Marquette Sports Law Rev 23:191–209

Nafziger JAR (2004) International sports law, 2nd edn. Martinus Nijhoff, Boston

Shachar A (2011) Picking winners: Olympic citizenship and the global race for talent. Yale Law J 120:2088–2139

Siekmann RCR (2006) Nationality and sport. International Sports Law J 6:122–123

Siekmann RCR (2012) Introduction to international and European sports law: capita selecta. TMC Asser Press, The HagueCrossRef

Titel: Rights and Wrongs of and About Nationality in Sports Competition
verfasst von: James A. R. Nafziger
Verlag: T.M.C. Asser Press
Buch: Fundamental Rights in International and European Law
Print ISBN: 978-94-6265-086-2

Electronic ISBN: 978-94-6265-088-6

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-94-6265-088-6_13

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