UK: Once A Brit, Always A… Moldovan?! The Ways Sports Tackle The International Eligibility Issue And The Legal Challenges They Present

Last Updated: 20 May 2015
Article by James Eighteen and Tom Dobson

Controversy surrounding national sporting allegiance can be traced as far back as Ancient Greece when Sotades of Crete, a long distance runner who had won the 5 km Dolichos event at the 99th Olympiad in 384 BC, was bribed by the Ephesians to change his citizenship and represent the city of Ephesus at the next games.  The Cretans were so furious at his switch of allegiance that Sotades spent the rest of his days in exile!

Today, Sotades would be in breach of IOC corruption laws.  However, as seen with British former taekwondo world number one, Aaron Cook's recent switch to Moldovan nationality ahead of next year's Olympic Games, international sporting eligibility still works up passions as much now as it evidently did in the ancient world. This article looks at the eligibility rules that different sports have put in place, examples of their application and the legal issues they raise. 

The reasoning behind the eligibility rules

The idea of a 'chosen few' carrying a nation's hopes on their shoulders stirs patriotism in those who would ordinarily be disinterested in domestic sporting fixtures.  That these 'chosen few' should originate from the country they represent goes without saying for many, yet the increasing ease of global mobility has led to a heightened level of national diversity and the notions of allegiance, identity and nationality have become harder to define.1  The challenge facing the governing bodies of major international sports is to reflect the changeable nature of sports people's national loyalties through the eligibility criteria. 

There is general uniformity amongst major sports such as rugby union, football and cricket as well as Olympic competition about players being able to represent the countries of their birth or those of their parents and grandparents as this is a reflection of national connection though heritage.  After all, some of the biggest names in UK sport including Mo Farah and Chris Froome have qualified to represent either England or Great Britain in this way. 

However, there is less consistency regarding the treatment of players who aspire to represent a country in which they were not born but to which they are connected through residence.  Certain sports allow representation following sustained residency whereas others place greater significance on a player's nationality (i.e. a player must be a national of the country in question).  To some, being labelled as a 'national' suggests a strong sense of belonging and connection to a particular nation whereas others may see it as just an administrative formality.  On a practical level, given that residence is not a pre-requisite for nationality, a long term 'resident' could feasibly be just as physically and culturally naturalised in a country as a 'national' (who may only be a national by virtue of a particular rule). 

How different sports compare: residency v nationality

Rugby Union's governing body, World Rugby has chosen to adopt rules based on residency – three years consecutive residence in the relevant nation qualifies a player to represent that nation on the international stage, irrespective of where they are from.  World Rugby's rationale for the rule is to ensure that international players have a "genuine, close, credible and established national link" to the nation they represent.2

Due to the comparative affluence of European domestic rugby, there has been a steady flow of foreign players into clubs in England, Wales, Scotland and France.  This has naturally resulted in many being selected for the national squads of their adopted countries with Riki Flutey and Shontayne Hape (both New Zealanders) making dozens of appearances for England between them, Tim Visser (Dutch) becoming a regular in the Scottish side and Rory Kockott (South African) making his France debut in the 2014 Autumn internationals.

In May 2015, World Rugby indicated they would be reviewing the three year residency rule to adjust to the increased level of player movement.  Brett Gosper, World Rugby's Chief Executive said that due to the "concentration of club wealth in the northern hemisphere", player movement had increased significantly since the three year residency rule was first enacted and that now was perhaps the time to assess whether "some adjustment needs to be made".3

The International Cricket Council (ICC) is another governing body which applies residential criteria, albeit slightly more stringently than World Rugby, categorising players qualifying on residency grounds as either four or seven year residents.4 The English Cricket Board (ECB) state in their eligibility rules that, four years residence is required if that period began prior to the player's eighteenth birthday, seven years if post.5 

By contrast, international football eligibility focuses on a concept called "permanent nationality".  In order to play football for your national team, it is a condition imposed by FIFA that your nationality is not dependent on residence; a high hurdle relative to other sports.

It is possible for a new nationality to be "acquired" if the football player lives in a particular nation continuously for five years after the age of eighteen, although this is a limited, secondary right and nationality (i.e. your status not being dependent on residence) remains the key pre-requisite.6  You still need to be a national of the country you are seeking to represent.

The FIFA rules were brought into the spotlight in 2013 following Diego Costa's decision to represent Spain, (where he had spent several years playing for various clubs, most notably Atletico Madrid) rather than the country of his birth, Brazil.7 

Whilst the World Rugby eligibility criteria prevent players switching allegiances once they have played for the first, second or seven a-side teams of a national side, the FIFA Statutes allow dual nationality players to declare for a second country provided they have not played a competitive first team international fixture. 

Costa had already played for Brazil on two occasions prior to declaring his intention to represent Spain but crucially, both appearances came in friendly fixtures.   

The statistics would suggest that FIFA's nationality first approach is working as can be seen in the comparative compositions of the English national football, cricket and rugby union teams in 2013 with 97% of the footballers English born (according to 2013 data) compared to 76% of their rugby counterparts and 63% of the cricketers.8

Yet, despite the more stringent eligibility criteria in comparison to other sports, FIFA's five year residency rule is regularly subjected to criticism.  Jack Wilshere, the Arsenal and England midfielder is among those who have spoken out publicly against the rules, claiming that five years residency in England "does not make you English".9 

By stating that "any competitor in the Olympic Games must be a national of the country of the National Olympic Committee which is entering such competitor"10, the Olympic Charter puts nationality firmly at the core of the Olympic athlete eligibility criteria.  However, unlike with the football rules, a bye-law to Rule 41 of the Charter states that athletes, having already competed at Olympic level, can change their international allegiance and compete for a different nation at future Olympics provided that at least three years have passed since the competitor last represented his former country.    

This is how Aaron Cook, who has switched nationality with the financial backing of a Moldovan billionaire (who happens to be president of Moldovan Taekwondo), is able to represent his new nation at next year's Olympics.  Cook was left out of the 2012 Great Britain Olympic squad, despite being world number one at the time and consequently swore never to represent Team GB again whilst the team management that failed to select him remained. 

However, the speed and ease of his nationality transition and consequent eligibility for Moldovan team selection is alarming.  As the rules stand, it is effectively possible for countries to "sign" athletes, completely bypassing a central principle of Olympic competition – that you represent your home nation.  In theory, it could be possible for nations who traditionally finish at the lower end of the Olympic medal table to tap up athletes who aren't quite good enough to make the teams of stronger nations.  While some commentators might look at the potential evening out of competition as a positive thing, it would surely be at the cost of the Olympic spirit if we were to see, for example, Usain Bolt competing for Moldova once he was too slow to make the Jamaican team.  It will be interesting to see whether the IOC moves to increase the three year period to bring Olympic competition in line with the more stringent rules in other sports.  

Discrimination considerations

Many would agree with Jack Wilshere and the right of a national team to select only those players of a certain nationality is heavily engrained in the culture of international football.  However, illogical though it might seem to Wilshere and others, there is an argument that FIFA's eligibility rules, with the significance placed on "permanent nationality", are in danger of amounting to direct discrimination based on nationality and as such, may be vulnerable to challenge under European Community Law.   Conversely, the rules applied by World Rugby and the ICC, based on residency, are less vulnerable and may be objectively justified by a legitimate aim which in the cases of rugby and cricket are the promotion of youth development, the protection of the integrity of national competitions and, as set out in the World Rugby eligibility rules, ensuring players have a "genuine, close, credible and established national link" to the country they represent.

Article 45 of the Treaty on the Functioning of the European Union prohibits discrimination based on nationality in the context of employment and provides only narrow exemptions on grounds of public policy, security and health.  The Court of Justice for the European Union found in Walrave11 that Community Law did not apply to the composition of a national sports team as it was a matter of "purely sporting interest and as such has nothing to do with economic activity".  

However, the Walrave decision is 40 years old and in the 1995 Bosman12 case, AG Lenz said that it was "not easy to state the reasons" behind that decision, particularly in light of the "significant financial significance" of international sporting fixtures.  With the English rugby union team now earning upwards of £15,000 per match and the centrally contracted English cricket team receiving the majority of their income from international matches, it would seem unlikely that a judge today could regard modern day international sports team selection as having "nothing to do with economic activity" and as a result, it is entirely feasible that the area might now come within the remit of European Law.  

Interestingly, the America's Cup, generally considered to be the World's oldest international sporting trophy, recently changed its rules to state that at least one member of each of the crews racing at the 35th instalment of the competition in 2017 must be a "national" of the country that their yacht club represents.  A "national" is defined as someone born in that country or holding a current, valid passport of that country.13  In the competition's "Deed of Gift" (effectively its founding document), the race is described as "friendly competition between foreign countries", however, on a practical level, it is actually a club competition between crews containing a mixture of nationalities.  It is therefore unlikely that the Walrave exemption for international sport will apply to the America's Cup. 

Whether European Law applies at all is another issue.  Applying the ECJ's judgements in Walrave and Meca-Medina,14 sport will be subject to Community Law in so far as it constitutes an economic activity with an economic impact within the European Union.  Clearly, with the large entry fees and corporate sponsorship involved, the America's Cup constitutes an economic activity.   Further, with increasing numbers of European based teams and funders, the economic impact of the America's Cup in Europe is significant.  It is therefore likely that European Law will apply to its rules.

In summary, it seems the rules applied by World Rugby and other sporting governing bodies are more likely to survive a challenge than the current FIFA rules and in the future, the concept of nationality in football may move towards the more flexible approach taken in sports such as rugby and cricket. 

The reason for the lack of judicial scrutiny may be that a national team is unlikely to want a player who has renounced the nation in question in favour of another.  However, sporting passion may lead to the nation that has been snubbed trying to stop a player playing for his new country. 

Immigration considerations 

A separate issue which flows naturally from the eligibility of a foreign born player to represent their adopted nation is the extent to which that eligibility and resulting national representation affects the player's immigration status. 

In 2013, there was intense media attention surrounding the case of Hendre Fourie, a South African born rugby player who had qualified to play for England through the three year residency rule and won eight caps before injury forced him to retire.15  As he no longer satisfied the criteria for his tier two (sportsperson) visa as set out in the UKBA's immigration rules following the termination of his employment by his domestic club, Sale Sharks, Fourie's right to remain in the UK was liable to be curtailed.  Fourie opted to return to South Africa rather than pursue the various options open to him which would have potentially allowed him and his family to remain in England.  However, Fourie's case gives rise to the broader question of whether his representation of his adopted nation should have provided him with an exception to the UK immigration rules which prompted his return to the country of his birth.  

How such an exception might function is open to debate.  For example, should there be a threshold for the number of international caps required by a sportsperson to qualify?  Notwithstanding the good intention of recognising national service through sporting representation, adding more caveats to an already complex set of immigration rules may only serve to create further problems in future years.   For example, if a threshold on international caps was introduced, would that mean a player with several non-capped international appearances would not qualify for the exception?  Such criteria would add another dimension, and possibly further pressure, to an already difficult selection process.  It surely would not be fair on selectors to know that their selection decision could impact on an individual's visa. 

On the other hand, it could be argued to be unjust that immigration rules do not allow a tier two migrant who has qualified to represent their adopted home on the sports field, to remain in that country after they have retired. 

Ultimately, while it might appeal to some people's sense of patriotism to make an exception for those in Fourie's position, in practice it could well be very difficult for politicians and sporting bodies to reach an agreement on a fair and workable solution.

Footnotes

1 'Olympic citizenship and the (un)specialness of the national vest: Rethinking the lines between sport and citizenship law', Dora Kostakopoulou, International Journal of the Law in Context, 2014

2 Regulations Relating to the Game, World Rugby Handbook, Regulations 8.1 and 8.2

3 'Rugby-Eligibility rules under the spotlight as World Cup looms', Reuters.com, 7th May 2015

4 International Cricket Council, Player Eligibility Rules, Article 3

5 English Cricket Board 2015 Regulations and Playing Conditions, Regulations Governing the Qualification and Registration of Cricketers, Annex A, Regulations Defining Qualification for England

6 FIFA Statutes, Section III, Articles 5, 7 and 8

7 'Brazilian-born Atletico Madrid striker Diego Costa opts for Spain ahead of World Cup', The Telegraph, 30th October 2013

8 'Football, cricket, rugby league and rugby union - how England's teams compare for foreign-born talent', The Telegraph, 10th October 2013

9 'Jack Wilshere says only English players should play for England', BBC Sport, 9th October 2013

10 International Olympic Committee Olympic Charter, Rule 41

11 Walrave and Koch v. Union Cycliste Internationale ECR (1974), 1405, Case 36/74

12 Union Royale Belge des Sociétés de Football Association, Royal Club Liegeois, UEFA v Jean-Marc Bosman and others ECR (1995), I-4921, Case C-415/93

13 The Protocol Governing the 35th America's Cup incorporating amendments 1 through 4, Paragraphs 19.3 and 19.4,

14 Meca-Medina and Majcen v European Commission [2006] 5 CMLR 18

15 'Union tries to stop Fourie's deportation', The Independent, 7th January 2013

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