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The Role of Nationality in Football

Caitlin Fitzgerald, 4th year LL.B, discusses the disjunction between the conception of nationality in the sports world and that of general legal nationality.

International sports law is a sui generis set of principles which crosses both public and private spheres. This is highlighted through the disjunction between the conception of nationality in the sports world and that of general legal nationality, particularly in the composition of national teams in international competition.                                                                                                       

Nationality can be defined as ‘the legal bond between a person and a State’.[1] A person will have the nationality of a country if he meets the requirements set out in the law of that country; State sovereignty ensures that national governments are autonomous in their decision as to what exactly these requirements will be. As a result, the rules for obtaining nationality vary considerably from one country to another. For instance, even where legal residence is a common requirement, there is significant divergence regarding the duration: in Qatar the required residency period is 25 years;[2] the Netherlands, 5 years;[3] and Argentina, just 2 years.[4] These differing naturalisation rules make for unequal treatment of sportspersons in relation to representations. This inequality is heightened further by the option for accelerated naturalisation in special circumstances. For example, in the Netherlands the ‘topsporters regeling’ [elite sportspersons regulations] provide for an exception to the residency requirements when such accelerated naturalisation would serve a ‘Dutch cultural interest’.[5] There have been a number of instances where such accelerated naturalisation has been used to facilitate national representation in sport.

Therefore, in an attempt to create a level playing field between football players from different countries and to prevent the abuse of accelerated naturalisation to strengthen a nation’s representation, football’s governing body FIFA has imposed additional rules to supplement general legal nationality. This is known as ‘sporting nationality’ and operates according to the ‘genuine link’ doctrine.[6] Historically there were no restrictions on representation other than those which applied to ‘passport nationality’ which enabled, for instance, the legendary Real Madrid player Alfredo di Stefano to play for Argentina, Colombia and Spain. Nowadays however FIFA has adopted the approach that once a player has represented a country in an official, non-binding match then he can never represent another country, regardless of eligibility.[7] Moreover, Article 7 of the Regulations Governing the Application of the Statutes of FIFA 2012 now requires a player wishing to play for a new country to fulfil one of the following conditions:

  1. He was born on the territory of the relevant Association;
  2. His biological mother or biological father was born on the territory of the relevant Association;
  3. His grandmother or grandfather was born on the territory of the relevant Association;
  4. He has lived continuously for at least five years after reaching the age of 18 on the territory of the relevant Association.

Article 7(d) aims to remove the possibility of a State using naturalisation in a manner which goes ‘against the spirit of the game’[8] and restores the need for a ‘genuine link’ to the country. It also harmonises football naturalisations. It is clear that FIFA takes its regulations in this area very seriously and has taken punitive action against teams who field ineligible players. For example, Syria was disqualified from the 2014 World Cup qualifying competition for fielding a player who had previously represented Sweden at under-21 level without seeking FIFA’s administrative approval for the switch.[9] FIFA’s approach is stricter than that of many other international sports associations. For example, the International Olympic Committee only operates a 3-year waiting period between changes,[10] meaning that it is possible to represent different nations in successive Olympic Games. It is thus clear that nationality and upholding a ‘genuine link’ between player and country are considered very important by FIFA.

However, FIFA’s ‘sporting nationality’ regulations have by no means eliminated the controversy surrounding national representation. A common debate is whether it is necessary that the player ‘feel’ Dutch in order to play for the Netherlands or if satisfaction of FIFA’s representation requirements should be sufficient? The former lends itself to a fluid conception of nationality rather than purely legal. From this perspective determination of nationality is an entirely personal intuition and may indeed change over time. Of course, in practice such a conception of nationality could never be used as the benchmark due to the difficulties of proof.

There are however various factors other than how a player ‘feels’ which may also influence his decision, one such consideration being which option offers the player the best chance of success on an international stage. If a Brazilian-born player misses out on selection for the World Cup, why should he not represent another nation if he is good enough to make their team? After all, it is many football players’ dream to play in the World Cup. Equally, if a player from a lesser football nation such as the Faroe Islands which has no real chance of World Cup qualification is good enough to be selected for the English team then why should his nationality preclude him from playing on the top international stage? These questions raise concerns that such a focus on nationality is damaging to the competition as it may mean that some of the best players are not involved in the championship. The sport of table tennis actually highlights this problem very well. In the Olympics each country is limited to just 2 representatives but because the top 3 players in the world are all Chinese the world’s number 3 player could not compete in the Games. Surely it should be the best athletes in a field competing against each other, regardless of nationality? However, unlike the Olympic Charter which states that ‘the Olympic Games are competitions between athletes in individual or team events and not between countries’,[11] FIFA competitions are explicitly between teams representing different national football associations. Therefore international football can be distinguished from other sports where perhaps this argument holds stronger. Football at an international level is intrinsically organised around national territories rather than focused on the quality of individual players thus it is the nature of the game that some players may have to miss out.

Furthermore, there is also a conflict between traditional organisation of sports around national territories on the one hand, and market forces on the other. Players will move to the country with the best opportunities to develop their talent and which offers better infrastructure, education and remuneration. Given the huge incentives, many players do not mind ‘de-tribalising’ from their original communities and seek citizenship in other countries with more to offer them. This is evidenced by Qatar’s Aspire Academy, a centre for sporting excellence which attracts talent as young as 8 years old from across the globe with the aim of eventually recruiting these players for the Qatari national team. The Brazilian national manager Felipe Scolari has scathingly criticised the approach of nations such as Qatar, asserting that ‘soon a country will be able to sign 20 players and set up their national side’.[12] Such commercialisation in football gives rise to the idea of a nation ‘importing’ players, much like it imports other commodities.

Commercial forces are also evident in the Dutch case involving the Ivory Coast-born footballer Salomon Kalou who wished to play for the Dutch national team at the 2006 World Cup in Germany. Here, Kalou had been invited to join the Ivory Coast squad who had also qualified for the World Cup thus arguments relating to opportunities to perform on the highest international stage do not apply. Instead, this naturalisation appears motivated by his career at club level because becoming a Dutch national would have entitled Kalou to EU citizenship and thus free movement rights to inter alia the English Premier League where his earning potential would significantly increase.[13] Although Kalou was ultimately refused Dutch nationality by the Dutch government, this case reminds us that football is first and foremost a profession and therefore market factors will inevitably influence a player’s attitude towards nationality.

As highlighted by Kalou, football associations often rely on the cooperation of the national government in relation to naturalisations. However, unlike in Kalou, it is very often the case that States do not see an individual’s citizenship of origin as a barrier to that person’s contribution to their national sporting teams. In these instances nationalist logic appears to succumb to national pride and the desire to succeed on an international stage. International sports competitions are a sui generis manifestation of a State’s power and territorial control. Therefore, although we see that national success is afforded a great deal of importance, the same level of importance is not placed on maintaining genuine national links within that success. In fact, instances such as the accelerated naturalisation of 5 Brazilian footballers by Togo in 2003 so that they could represent the national team in the 2004 African Cup of Nations actually prompted FIFA to introduce the Article 17(d) residency requirement. According to FIFA President Sepp Blatter:

‘…if we don’t stop this farce, if we don’t take care about the invaders from Brazil towards Europe, Asia and Africa then, in the 2014 or the 2018 World Cup, out of the 32 teams you will have 16 full of Brazilian players’.[14]

This highlights the divergence in attitudes towards national team composition between FIFA on the one hand and national associations and governments on the other, leading us to question whether FIFA is perhaps clinging to traditional conceptions of nationality which are no longer as relevant in the modern game?

Nonetheless, it is important that we do not underestimate the role that nationality does play.  In international football, players represent their national football governing body but in practice this also tends to amount to representation of the country. It is therefore inherently based on nationality. The importance of nationality is also evident from the prominence of national symbols such as anthems and colours that keep the link between the team and the country alive and at the forefront of our minds. Moreover, the national football team often forms an integral part of the community as highlighted by the importance of sport for reinforcing Scottish and Irish national identities by creating a sense of community distinct from the British one. Fierce nationalist rivalries are also often manifested through football as shown by the explosive clash between Croatia’s Dinamo Zagreb and Serbia’s Crvena Zvezda in 1990, which acted almost as a precursor to the Yugoslav wars. Supporters of Dinamo Zagreb were at the forefront of Croatia’s nationalist reawakening in the 1980s and 1990s, illustrating the inextricable link between football, politics and national identity.

We can therefore see that for many players, career development takes priority over any affinity they might feel towards their national team. Increasingly it seems that nationality is viewed by players and national associations alike as a means to an end. Of course, we cannot say that this is true for every player but it is certainly not uncommon. It is important that nationality and the practice of naturalisation are not used to stifle the development of talent or hinder the furtherance of a player’s career. The success of a player should not be determined by his birthplace or bloodlines. Nonetheless, the traditional role of nationality is far from redundant in football, we only have to look at the intense rivalries and nationalist pride stirred to see that football remains closely linked to national identity and deeply ingrained in society. The lifeblood of the international game is the connection between fans and players: lose that relationship and the fundamental objective of international football is lost too.

 

[1] European Convention on Nationality 1997, art 2(a).

[2] Qatari Nationality Law No. 38 2005, art 2.

[3] Netherlands Nationality Act 2003, art 8(1).

[4] Const 20, Arg 2(1), 6, Decreto (3213/84) 3-8.

[5] Netherlands Nationality Act 2003, art 10.

[6] Nottebohm Case (Liechtenstein v Guatemala) 1955 ICJ 1.

[7] Regulations Governing the Application of the Statutes 2012, art 5(2).

[8] Available at: http://espnfc.com/print?id=293645&type=story, 8 March 2004, (last accessed: 12/12/2014).

[9] Syria Disqualified from World Cup, FIFA, available at: <http://www.fifa.com/worldcup/preliminaries/news/newsid=1495459/>, 19 August 2011 (last accessed: 12/12/2014).

[10] Olympic Charter, bye-law to rule 41.

[11] Olympic Charter, rule 6.

[13] R. Siekmann, Introduction to International and European Sports Law 2012, TMC Asser Press, The Hague, Netherlands, ch. 7.2.2.

[14] Blatter wants EU to allow quotas, BBC (Online), available at: <http://news.bbc.co.uk/sport2/mobile/football/7112767.stm>, 26 November 2007 (last accessed: 12/12/2014). 

 

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