National team eligibility rules: FIFA, UEFA, the IOC and the CAS

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1 PLAYER ELIGIBILITY National team eligibility rules: FIFA, UEFA, the IOC and the CAS The 2010 FIFA World Cup highlighted the increasing trend of footballers choosing to play for countries other than those in which they were born. Ryan S. Hilbert and Ricardo Gentzsch compare the nationality rules of FIFA and UEFA with those of the IOC, in the light of Court of Arbitration for Sport rulings which state that the possibility of changing nationality must remain open to athletes. They also suggest possible changes to football s regulations that may assist it with its aim of preserving the strength of national teams. Now that the 2010 FIFA World Cup is over and the vuvazelas have been stowed, the time is ripe to analyse what has been a recurring topic for several years now: the appearance of players playing for countries in which they were not born or with which they are not commonly associated. Much has been made about the Bosman case 1 and its effect on the use of foreign quotas in football. This article will not address the Bosman case, nor will it address FIFA s 6+5 rule or UEFA s homegrown player rule. Instead, the purpose of this article is to examine FIFA s and UEFA s eligibility rules for a FIFA World Cup national team and to analogise those rules to another wellknown sports organisation, the International Olympic Committee (IOC). This article will then suggest two possible changes to the FIFA rules that could address, at least in part, some of the same issues that are the subject of foreign quotas. Examples of Foreign-Born players in the 2010 FIFA World Cup This year s FIFA World Cup was replete with examples of players who were born in countries different than the national Associations for whom they played. In the German squad, for example, three players Lukas Podolski, Miroslav Klose and Piotr Trochowski were born in Poland and moved across the border as children. Another of Germany s players, Claudemir Jeronimo Barreto (better known as Cacau) was born in the Sao Paulo province of Brazil and did not become a German citizen until 2009, having spent the last 10 years 1. Case C-415/93, Union Royale Belge des Societes de Football Ass n ASBL v. Bosman, 1995 E.C.R. I-4921.

2 in Germany. Indeed, 11 of the 23 players who played on Germany s squad were either foreign born or have immigrant roots. There were also a number of players who played for the countries of their birth, even though they have spent much of their lives living elsewhere. One example is the well-known striker Didier Drogba, who was born in Côte d'ivoire (commonly referred to in English as the Ivory Coast) but who spent much of his youth in France. Another example is Mesut Özil, the German-born son of a Turkish immigrant who opted to play for Germany in the 2010 FIFA World Cup despite repeated overtures from Turkey. Perhaps the best example, however, is reigning FIFA World Player of the Year Lionel Messi who was born in Argentina and played for the Argentinean national team, even though he has been living in Barcelona since the age of 13 and is the face of the storied Barcelona football club. Then you have the unusual case of the Boateng (half) brothers: Kevin- Prince and Jerome. Born to a Ghanaian father and German mothers, Jerome chose to play for the country of his birth Germany while Kevin-Prince, heavily criticised by the German media for injuring Chelsea player (and German national team captain) Michael Ballack when Chelsea played Kevin-Prince s Portsmouth squad in the 2010 FA Cup final, chose to play for Ghana. Examples such as these cause one to wonder about FIFA s rules for determining which players can play for which National Associations. One also wonders whether a player - having chosen to play for a specific country s Association - is free to play for another country s Association at a later date. These issues are discussed in the next section. FIFA s rules on eligibility There are at least two reasons why a player is selected to play for a particular Association in the FIFA World Cup. The main reason is because of his outstanding performance on the field. Another reason is because of his marketing potential. In many developing countries, to be able to represent your Association in the games prior to playing a World Cup (WC) or to be able to play in games against another Association, is a personal achievement. This said, for some players their goal might be to showcase themselves to clubs in other countries, but the bottom line is that international competitions are trampolines for players to enter different markets and participate in different leagues and make a leap forward in their careers. The 2009 FIFA Regulations 2 establish what type of nationals are eligible to represent the team of a National Association of a particular country. These regulations include a single principle with two parts. The first part, set forth in Article 15, Paragraph 1, is that [a]ny person holding a permanent nationality that is not dependent on residence in a certain country is eligible to play for the representative teams of the Association of that country. It seems unambiguous, then, that a person whose nationality is based on birth like Drogba and Messi can play for the team of the country of his birth. The second part of the principle, set forth in Article 15, Paragraph 2, is that, subject to the conditions in Article 18 discussed below, any Player who has already participated in a match (either in full or in part) in an official last seen July 28, 2010.

3 competition of any category or any type of football for one Association may not play an international match for a representative team of another Association. 3 In addition to setting forth a principle, the 2009 FIFA Regulations also address certain situations players are likely to encounter. For example, to the extent a player holds multiple nationalities, FIFA allows those players to choose for which Association they would like to play. According to Article 16, a player may represent more than one Association in an international match so long as that player, in addition to having the relevant nationality, fulfils at least one of the following conditions: His birth is in the territory of the relevant Association; Either his biological mother or father was born in the territory of the Association; Either his grandmother or grandfather were born in the territory of the Association; or The player has lived continuously in the territory of the Association for at least two (2) years 4. The two-year commitment was implemented so that players at least had some connection to a particular Association and to prevent certain countries from awarding instant citizenship in order to quickly put together a team. Further, in recognition of modern world emigration movements (and the fact that there are those players who would abuse them), FIFA s regulations also contemplate a situation in which a player obtains a new nationality under determined circumstances. Under Article 17, a player who assumes a new nationality and who has not already participated in a match for another Association, is eligible to play for a new Association so long as he satisfies one of the following conditions: He was born on the territory of the relevant Association; His biological mother or biological father was born on the territory of the relevant Association; His grandmother or grandfather was born on the territory of the relevant Association; or He has lived continuously for at least five years after reaching the age of 18 on the territory of the relevant Association. One purpose of the last requirement was to prevent the exploitation of young players 5. Despite its apparent promotion of player mobility, the FIFA Regulations make clear that a player is not entitled to switch Associations more than once. Article 18, which was referenced above, states: If a Player has more than one nationality, or if a Player acquires a new nationality, or if a Player is eligible to play for several representative teams due to nationality, he may, only once, request to change the Association for which he is eligible to play 3. By stating either in full or in part in parenthesis, this rule is open to misinterpretation in that once a player is selected to play for a particular Association, it could be argued that he has participated in part regardless of whether he plays or not. One could also understand that participation includes the preparation phase as well. 4. This rule give can be problematic in those cases where the origin of the parents or grandparents is unknown, for example in those cases involving refugees or when a country does not have a recognised status. But this topic is outside the scope of this article. 5. FIFA Circular # Eligibility to play for representative teams.

4 international matches to the Association of another country of which he holds nationality, subject to the following conditions: He has not played a match (either in full or in part) in an official competition at A international level for his current Association, and at the time of his first full or partial appearance in an international match in an official competition for his current Association, he already had the nationality of the representative team for which he wishes to play. He is not permitted to play for his new Association in any competition in which he has already played for his previous Association. Even if a player meets these criteria, FIFA requires that any change in Association be requested in a written, substantiated request to the FIFA general secretariat. FIFA s Player s Status Committee will then evaluate that player s request. In short, there is no guarantee that a player can switch Associations at all. UEFA s rules UEFA is a privately held organisation that is composed of all European Associations. UEFA is one of six regional confederations, all of whom report to FIFA. UEFA also is the sponsor of two major European club competitions, the UEFA Champions League and the UEFA Cup. Because UEFA reports to FIFA, it is not surprising that UEFA s eligibility requirements cite to those of FIFA. Article 17 of the Regulations of the UEFA European Football Championship 6 states: Each association must select its national representative team from players who hold the nationality of its country and who comply with the provisions of Articles 15 to 18 of the Regulations governing the Application of the FIFA Statutes. Even though UEFA s eligibility rules are the same as FIFA s, it is more common for Europeans to have more than one nationality. This, in turn, means that issues like those above including the issue of choosing which Association to play for are more likely to arise. Rules of the International Olympic Committee (IOC) The current version of the Olympic Games Charter, in force from February 2010, is more flexible with regard to athletes with multiple nationalities who opt to change their International Federation. Rule 42, entitled Nationality of Competitors establishes the criteria for a national that has two or more nationalities at the same time. Unlike FIFA s Regulations, the IOC s rules do not distinguish between nationalities obtained through birth, bloodline or residence. The core value of the rule is that a national who wishes to compete for a different country must fulfil a temporary condition. The temporary condition established by the IOC in this situation is that a period of at least three years must have elapsed since the athlete s last participation on behalf of his former country. The purpose of the waiting period is purely to create fairness and integrity of international competitions and to deter unethical commerce of nationalities. Nonetheless, the IOC allows the relative National 6. Regulations of the UEFA European Football Championship , Poland-Ukraine.

5 Olympic Committees (NOCs) and International Federation (IF) to agree amongst themselves to reduce this three-year period. To the extent an athlete wishes to compete for a different country in the Olympics, the approval of the IOC also is required. This interpretation of Rule 42 was confirmed by the Court of Arbitration for Sport in Lausanne, Switzerland in an advisory opinion issued on January 4, The primary issue addressed by this opinion was whether a baseball player with dual Brazilian-German nationality could represent Germany in international tournaments, despite previously representing Brazil. This advisory opinion began by citing a prior CAS decision that acknowledged a distinction between a legal nationality and a sporting nationality 8. This distinction involves two different notions: the first concerns the personal status deriving from citizenship of one or more states; the second is a uniquely sporting concept, defining the eligibility rules of players with a view to their participation in international competitions. One is therefore presented with two different legal orders one of public law, the other of private law which do not intersect and do not come into conflict. The advisory opinion then cited another prior CAS decision, this time for the proposition that it is up to the athlete with multiple nationalities to choose for whom he wishes to play 9. That decision stated: In the circumstances of having dual nationality, the choice of the NOC for which he wishes to compete is a matter for election by the athlete, subject to certain variations when an election has been made, either overtly, or by implication, through participation in certain defined competitions. Based on these precedents, and its own interpretation of Rule 46 of the Olympic Charter concerning changes to sporting nationality, the CAS concluded that the possibility to change sporting nationality must remain open to every athlete regardless of whether the athlete has one or more legal nationalities. This opportunity is, however, subject to the general requirements of a waiting period as imposed by the Olympic Charter. In this case, because both the NOC for Brazil and the NOC for Germany agreed to cancel the threeyear waiting period, and the sport s International Federation agreed, the player was allowed to compete for Germany immediately. Suggested changes to FIFA s Regulations As they currently stand, FIFA s Regulations are fairly lax when it comes to determining which players are eligible to compete for a particular country. As explained above, a player may be eligible simply by becoming a national in the country he chooses to represent and by residing there for as little as two years. Where FIFA seeks to regulate those players, however, is in the number of Associations a player may represent. While admirable, this focuses on the wrong issue. Under FIFA s Regulations, a National Association can stock its team with as many foreign born players as it wishes, so long as those players meet the minimum rules on eligibility discussed above. This creates the incongruous situation in which a team that purports to represent a particular country in international competition is actually comprised of players that do not fairly 7. CAS 98/ CAS 92/ CAS 95/132.

6 represent the country whom they represent, much less its culture. This, in turn, dulls the nationalistic appeal of such competitions in the first place. In order to return a nationalistic appeal to the game, and in order to encourage the training and promotion of a country s own players, FIFA should consider extending the amount of time a player must reside in a particular country before he is eligible to compete for that country. Three years is the amount of time required by the IOC and seems appropriate. While not a panacea, this would discourage opportunistic players and Associations from obtaining players on a relatively short notice and preserve the concept of fairness. It would also increase the amount an Association would have to invest in a player before it could receive the benefit of his services in international competition, and thus potentially dissuade it from doing so. FIFA should also consider following the lead of the IOC and at least allow two countries respective Associations to determine between them when and under what circumstances a player may switch Associations. As it currently stands, FIFA s Player s Status Committee is the sole entity that decides (at least originally) when a player may switch Associations. By allowing two separate Associations to engage in an arms-length negotiation on this issue, however, it puts the onus on the Association to determine what is in the best interests of its country s players. For example, while it is unlikely that an Association would allow its best players to play for another Association thereby keeping those players at home an Association may decide that those lesser-known players on its squad should be allowed to compete elsewhere where they may get more playing time and thus better experience. FIFA could even retain its only one transfer rule as this also discourages frequent changes between Associations. Conclusion There are no simple answers when it comes to determining which player can compete for which country in international competition. The purpose of this article was merely to thrust these issues into the spotlight and to suggest two possible changes to the FIFA rules that could address, at least in part, some of the same issues that are the subject of foreign quotas. Ryan S. Hilbert Counsel Manatt, Phelps & Phillips, LLP, Palo Alto rhilbert@manatt.com Ricardo Gentzsch Abogado Schiller Abogados, Bilbao r.gentzsch@schillerabogados.com