Eligibility for a National Team—Changing Country

Is it compatible with EU law to prevent someone from changing ‘sporting nationality’? If not, could a time restriction be imposed before such a change is effective?

This inquiry has in common with the previous discussion the plain fact that footballers and some other athletes who represent national teams are not treated in the same way as ‘ordinary’ employees. A player can change club: the transfer system is examined in Chapter 9. But, at international representative level, a player cannot simply switch to another employer. Different sports have different rules.83 In football flexibility prevailed in the past: over fifty years ago two of the finest players in history won international caps for two different countries: Ferenc Puskas for Hungary and then Spain, Alfredo di Stefano for Argentina, then Spain. Today the rules are tighter. FIFA permits a player to appear for one country at youth level

  • 79 eg Case C-112/00 Schmidberger v Austria [2003] ECR I-5659; Case C-36/02 Omega Spielhallen [2004] ECR I-9609; Case C-391/09 Runevic-Vardyn [2011] ECR I-3787.
  • 80 eg Case C-491/01 Ex parte BAT [2002] ECR I-11453; Case C-58/08 Vodafone [2010] ECR I-4999.
  • 81 MEMO/14/293, 16 April 2014.
  • 82 This has been apparent lately in England: eg ‘Premier League Fights Dyke’s Homegrown Plan’ The Guardian (London, 28 March 2015) 6.
  • 83 See A Wollmann, O Vonk, and G-R De Groot, ‘Towards a Sporting Nationality?’ (2015) 22(2) MJ 305.

and in friendly internationals and then subsequently to choose to change sporting nationality and play for another country, but once he or she has played a competitive full international then the freedom to pick and choose is at an end.[1] [2] [3] [4] Other sports have different rules, but no sport allows an athlete an unrestricted freedom to play for a series of different countries.

There is evidence that a market exists for high-profile athletes: recruiting foreign athletes is a means to achieve prestige by boosting Olympic medal counts.85 In some sports the ease with which nationality may be changed by players who have not already represented the country with which they have their closest link—usually by residence, sometimes by distant blood ties through, for example, a grandparent— has created a degree of disquiet that the very heart of international representative sport is being undermined. Rugby and cricket have tended to attract particular anxieties,86 but football too has its tensions. Smaller countries with a long history of emigration, such as Scotland and Ireland, might be forgiven or even praised for looking hard into the sporting wealth of their diaspora. Smaller countries trawling anxiously simply to find better players abroad than they have produced at home deserve to be viewed with less indulgence.

In so far as a sports governing body chooses to introduce impediments to an athlete’s ability to select his or her sporting nationality, whether this is applicable to athletes who have already competed for another country and wish to switch or more generally, where no adequate link between athlete and flag exists to the satisfaction of the governing body, then a claim might arise if the usual requirements of EU law are met. Free movement law and the competition rules would in principle be applicable where the blockage affects inter-state mobility within the EU.

This immediately invites questions about how special sport is. In a normal industry, of course, the possibility to represent a national team would not even arise. In sport the core defence of such rules would rest on the need to maintain the integrity of international competition by sustaining the connection between the origin of the player and the team that he or she represents, which the Court accepted as legitimate as long ago as 1974 in Walrave and Koch8 There is no other practice of the Court or the Commission on which to draw. However, there is room for intriguing debate. In football one might argue that the prohibition against representing more than one country in competitive international matches goes too far. A five-year waiting period would be a less restrictive rule and there is room to argue that current rules are disproportionate. The retort is that it is embedded in the very nature of international representative sport, unlike the club game, that there is a one-shot opportunity only. Here too, as stated earlier, much depends on identification of the specific nature of sport and on how much deference is accorded to the lex sportiva as source of expertise in line with the sporting margin of appreciation considered in Chapter 7.4.

A normatively appealing case has been made that changing nationality in sport should be approached in a more fluid, less exclusive way in order to promote a healthier culture of openness and egalitarianism in preference to a discourse of ‘traitors and token patriots’ that attaches in particular to the Olympics.[5] [6] There is no sign of federations being minded to take this view. In so far as part of the reluctance is attributable to the commercial lure of an event that can inflame passion by ‘othering’ rather than promote reconciliation, then this is the very reason why legal control is justified and in the EU’s case constitutionally legitimate. But it is probably a stretch too far to move beyond normative disapproval of rules that place some restriction on athletes changing sporting nationality and to condemn them as violations of EU law.

  • [1] FIFA’s Statutes govern the matter, they are available at 29 November 2016.
  • [2] J Horowitz and S McDaniel, ‘Investigating the Global Productivity Effects of Highly SkilledLabour Migration: How Immigrant Athletes Impact Olympic Medal Counts’ (2015) 7 InternationalJournal of Sport Policy and Politics 19. See also D Reiche, ‘Investing in Sporting Success as a Domesticand Foreign Policy Tool: The Case of Qatar’ (2015) 7 International Journal of Sport Policy andPolitics 489.
  • [3] 86 eg ‘March of the Foreign Legion: It’s Time for World Rugby to Stop Exodus of Talent to Playunder Flags of Convenience’ Sunday Times (London, 10 May 2015) Sports section, 11.
  • [4] 87 Walrave and Koch (n 1).
  • [5] D Kostakopoulou and A Schrauwen, ‘Olympic Citizenship and the (Un)Specialness of theNational Vest: Rethinking the Links between Sport and Citizenship Law’ Warwick Law School LegalStudies Research Paper No 2015/05.
  • [6] ‘Study on the Equal Treatment of Non-Nationals in Individual Sports Competitions’, accessed 29 November 2016.
 
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