'Accelerated' naturalisation for national representative purposes and discrimination issues in individual and team competitions under EU law.

AuthorSiekmann, Robert C.R.
PositionSport and Nationality

Sport and nationality is a complex issue with diverse manifestations. The first main question which will be dealt in this paper is how so-called national teams that represent a country in international ("inter-state") competition (Olympic Games, world and regional championships, and other representative sporting events) are composed - on the basis of the legal nationality of their members, or on the basis of a special "sporting nationality" according to which additional or other criteria are applicable whether a sportsperson is allowed to participate in the national team. The same question arises with regard to individual athletes who represent a country in international competition. This question will be discussed in particular in the context of the problems that have been created by what may be called accelerated (quick) naturalization. The second main question is how "sporting nationality" is regulated outside the scope of national representation, that is at the level of national club team and individual competition. May sportspersons from abroad participate in the club competitions in other countries of which they do not possess the legal nationality, in particular under EU law? In this paper we will discuss topical discrimination issues: the discrimination of non-team sportspersons in individual national championships; and: the discrimination of professional football players: the FIFA 6+5 and UEFA home grown players rules.

  1. Introduction

    Nationality is both in international and national law an important connecting factor for the attribution of rights and duties to individual persons and States. Under international law States have for example the right to grant diplomatic protection to persons who possess their nationality. Under national law the obligation to fulfil military service and the rights to become a member of parliament or to have high political functions are frequently linked to the possession of the nationality of the country concerned. However there is no standard list of rights and duties which normally are linked to the nationality of a State under national and international law. National States are in principle autonomous in their decision which rights and duties will be connected to the possession of nationality, whereas under international law the consequences of the possession of a nationality are also a subject of discussion. Nationality can be defined as "the legal bond between a person and a State". This definition is, inter alia, given in Article 2(a) of the European Convention on Nationality (1997). Article 2(a) immediately adds the words "and does not indicate the person's ethnic origin". In other words, nationality is a legal concept and not a sociological or ethnical concept. The nationality of a country in this legal sense is acquired or lost on the basis of a nationality statute. A person possesses a nationality if he or she possesses this nationality by virtue of the general nationality statute or other relevant legislation, rules of implementation, case law and legal practice. (1)

    Sport and nationality (or: nationality in sport) is a complex issue with diverse manifestations. The first main question which will be dealt in this article is how so-called national teams that represent a country in international ("inter-state") competition (Olympic Games, world and regional championships, and other representative sporting events) are composed - on the basis of the legal nationality of their members, or on the basis of a special "sporting nationality" according to which additional or other criteria are applicable whether a sportsperson is allowed to participate in the national team. The same question arises with regard to individual athletes who represent a country in international competition. Are there nationality statutes etc. which also have specific "sporting nationality" provisions (provisions for representative sporting purposes)? Or does the determination of "sporting nationality" completely belong to the jurisdiction of organized sport, in which case the international sports federations in principle still could refer to the general legal nationality ("passport nationality") of teams and sportspersons, or could have their own different rules and regulations to provide for the eligibility of sportspersons for international competition.

    The first question will be discussed in particular in the context of the problems that have been created by what may be called accelerated (quick) naturalization. Changes in nationality were becoming increasingly frequent in sports, for a number of reasons stemming in particular from certain countries' desire to assert themselves on the international scene, and/or the athletes' desire to benefit from the best possible material conditions. The rules for obtaining nationality vary considerably from one country to another, which has created sometimes appalling inequality of treatment from one athlete to another. International sports authorities have been overwhelmed by this once marginal phenomenon which had suddenly become a major issue in a number of sports. They have reacted "case by case" to attend to the most urgent cases first, while trying to maintain some level of sportsmanlike fairness. However, the time had come to find comprehensive, uniform solutions that would be valid for the long term. (2) In The Netherlands the Kalou case (2006) is the landmark case on this issue. (3)

    The second main question is how "sporting nationality" is regulated outside the scope of national representation, that is at the level of national club team and individual competition. May sportspersons from abroad participate in the club competitions in other countries of which they do not possess the legal nationality?

    Discrimination on grounds of nationality is prohibited under EU law, which establishes the right for any citizen of the Union to move and reside freely in the territory of the Member States. EU law also aims to abolish any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Equal treatment also concerns citizens of States which have signed agreements with the EU that contain non-discrimination clauses, and who are legally employed in the territory of the Member States ("non-EU nationals").

    The composition of national representative teams is inherent in the organization of competitions opposing national teams. Rules concerning the composition of national teams, in particular rules that exclude non-national sportspersons, whether EU or non-EU nationals, from national teams, have been considered as rules that do not infringe EU law free movement provisions.

    In this article we will also discuss topical discrimination issues in particular under EU law:

    - the discrimination of sportspersons ("EU non-nationals") in individual national championships;

    - the discrimination of professional football players ("EU non-nationals"): 6+5 and home grown players rules.

  2. The "accelerated" naturalization for national representation issue

    When international law refers to nationality, this reference has to be understood as a reference to the general legal nationality of a State acquired on the basis of a ground for acquisition provided by the statute on nationality of the State concerned. This is for example the case where Article 15 of the Universal Declaration of Human Rights states that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Next to this general legal nationality which indicates the formal legal bond between a person and a State, States or International Organisations may - for special purposes - introduce a so-called "functional nationality" or "autonomous nationality". If for certain purposes a functional nationality is introduced, the grounds for acquisition and loss of this specific nationality have to be defined in detail. In De Groot's opinion, the question had to be answered whether the development of a functional, autonomous sporting nationality was desirable. In principle, a negative answer to this question was advisable. The regulations of the grounds for acquisition and loss of a functional nationality is a very complicated task, if one does not want to use simply the place of birth as the only ground for acquisition of the functional nationality without any ground for loss of the functional nationality in question. Even the fiction that one is deemed to have the nationality of the country where one has ordinary residence needs considerable further elaboration, because of the fact that the definition of residence differs from country to country. However, De Groot continues, there was an attractive alternative for the development of a functional nationality, which would come quite close to a separate sporting nationality, but was in fact not an independent notion, and which did not require to regulate the grounds for acquisition and loss in detail. One might for the determination whether a person qualifies to represent a certain country in international sporting competitions use as a basic requirement the possession of the general legal nationality of the State concerned, but add - insofar as it was desirable - additional requirements which would guarantee that the nationality is the manifestation of a genuine link between the sportsperson and the State concerned. The essential question then was of course which additional requirement(s) should be added and in which cases these additional requirement(s) should be fulfilled. The reason to add - in certain cases - (an) additional requirement(s) next to the condition of the possession of the nationality of the country concerned, before a person qualifies to represent a country in international sporting competition, was in order to ensure that a real, genuine link exists between the...

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