Picking Winners: Olympic Citizenship and the Global Race for Talent

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FEATURE CONTENTS

I.   THEORIZING THE TALENT-FOR-CITIZENSHIP EXCHANGE

II.  CITIZENSHIP MATTERS

III. THE INTERNATIONAL FRAMEWORK GOVERNING OLYMPIC CITIZENSHIP
     A. Institutional Structures
     B. The Olympic Dream
     C. Eligibility Rules
IV.  THE GLOBAL RACE FOR TALENT AND LEX SPORTIVA
V.   THE CORE PLAYERS IN THE TALENT-FOR-CITIZENSHIP EXCHANGE
     A. The Athletes
     B. The Recruiting Nation
     C. The Source Country
VI.  "THROWING SAND IN THE WHEELS" OF OLYMPIC CITIZENSHIP
     TRANSFERS
     A. Setting a Standard for Recognition of Hasty Citizenship Grants
     B. Regulated Transfers and Solidarity Obligations
CONCLUSION

In our increasingly globalized and competitive world, citizenship is being rewritten, and radically so. This is evident along multiple axes: the revival of cultural and religious markers of inclusion/exclusion, (1) the revamping of border control, (2) the securitization of citizenship, (3) and the more active role played by both sending and receiving countries in bringing economic considerations to bear on labor migration policies, (4) to mention but a few notable examples. The focus of my discussion is on this last category, zooming in primarily on the international mobility of the highly skilled. Here, terminology for the accretion of human capital, once the exclusive purview of economists and head-hunting firms, has infiltrated and transformed the realm of citizenship. Recognizing that "[t]he key element of global competition is no longer the trade of goods and services or flows of capital, but the competition for people," (5) countries seeking to attract Nobel Prize contenders, gifted technology wizards, acclaimed artists, promising Olympians, and other high-demand migrants have come to realize the attractive power of citizenship. This represents a significant shift in the conception of citizenship--turning an institution steeped with notions of collective identity, belonging, loyalty, and perhaps even sacrifice into a recruitment tool for bolstering a nation's standing relative to its competitors. The striking transformation of citizenship is the subject of this inquiry.

Consider the case of Becky Hammon, a superstar point guard from the American heartland. Although she finished as runner-up for the Most Valuable Player title in the WNBA in 2007, Hammon was not short-listed for the U.S. women's Olympic basketball squad for the 2008 Beijing Summer Games. (6) Instead of staying home to root for her national team, Hammon chose to pursue her lifelong dream of playing in the Olympics. Despite not being of Russian descent or a full-time resident, Hammon (who had previously played professional basketball in Russia) was fast-tracked for Russian citizenship in a process expedited by the country's officials. (7) With her brand new passport in hand, Hammon could compete in the Olympics for Russia. There is no denying that Hammon had nothing but the most tenuous ties to Russia before she was granted citizenship in an expedited process. Yet this legal exchange made her into an official representative of the recruiting nation. Some saw this exchange as representing an emerging free-agency era in the Olympic Games: a new world order in which the athlete is at center stage, empowered by the fierce competition among national teams to attract individuals with abundant talent. (80) Others saw it as an act of strategic behavior: placing oneself ahead of one's country. (9) But the distributional matrix of opportunities and responsibilities that attaches to Olympic citizenship goes well beyond any specific individual. It implicates the multiple stakeholders engaged in a global race for talent: mobile and worldly top performers, sending and receiving countries, as well as various regional and international sports regulating bodies.

The case of Becky Hammon, despite the media attention it has received, is far from unique in the world of Olympic citizenship. (10) Chris Kaman, center for the NBA's Los Angeles Clippers since 2003, was born and raised in the United States, attended college at Central Michigan State, and (by his own admission) does not speak German. But his great-grandparents were German, a fact that entitled Kaman to acquire German citizenship. He was approached by the German sports authorities and granted a German passport in July 2008 in an expedited process, all in time to compete for the German national team in the 2008 Beijing Olympic Games. (11) In another instance, several weeks before the 2006 Winter Olympics in Turin, President Bush signed a congressional bill that included a special provision granting citizenship for aliens of extraordinary ability. (12) This legal maneuver allowed ice dancers Tanith Belbin, born and raised in Canada, and Maxim Zavozin, born and raised in Russia, to represent the United States. (13) Belbin and her partner secured a silver medal for the United States. (14) Zavozin went on to become a Hungarian citizen in January 2010, just in time to represent Hungary in the 2010 Winter Olympics in Vancouver. (15)

The United States, more than any other country in the world, has gone out of its way to perfect the technique of attracting accomplished athletes by "swapping passports in pursuit of Olympic medals." (16) However, the practice has become more common than ever. It is no longer limited to the world's traditional sports-powerhouse nation. Jamaican-born Merlene Ottey is one of the most decorated female track athletes of all time. She has won nine Olympic medals in six Olympic Games--spanning from Moscow 1980 to Sidney 2000 (and winning numerous world championship rides in between)--all while representing Jamaica. (17) In 2002, Ottey acquired Slovenian citizenship and went on to compete for Slovenia in the 2004 Olympics in Athens. Since 2004, she has represented Slovenia at international competitions. (18) In 1986, the World Champion in weightlifting, Bulgarian Naim Suleimanov, was lured by Turkish officials to defect and move to Turkey. He then applied for Turkish citizenship, changed his name to Naim Suleymanoglu, and won gold medals for Turkey in the 1988, 1992, and 1996 Olympic Games. Reports suggest that the Turkish government paid approximately one million dollars to the cash-strapped Bulgarian regime to allow Suleymanoglu to compete for Turkey in the 1988 Seoul Olympics. (19)

And there is no end in sight to the practice. The Azerbaijan women's field hockey team caused outrage when the squad that appeared for the European Championship included no less than six South Korean players. (20) Officially, however, no rules were broken: the South Koreans had been given Azerbaijan passports in time to qualify for the games. Or consider the case of Italy, the host of the 2006 Torino Winter Games, which resorted to fast-tracked citizenship grants in order to build up its own squad: no fewer than ten of Italy's national hockey team players were Canadian hockey players who had not made the cut on their home team. (21) They held only minimal ties to Italy; some of them had never visited the country. This has raised the ire of sporting officials. The Director of the International Ice Hockey Federation was unequivocal in rejecting the practice: "[Y]ou shouldn't be able to just grab a passport and represent a country at an event." (22) Alas, once the recruiting nation (Italy, in out example) was willing to interpret flexibly its own standard membership requirements by turning these players into citizens, the governing transnational sporting bodies had little ability to object to the passport swap. The players at issue had never represented another country at an official international competition.

The increasingly common practice of governments "picking winners" through fast-tracked, strategic grants of citizenship--what I will call Olympic citizenship--becomes acutely visible when the intersection of sports and nationality is placed center stage. (23) The significance of this new reality, the opportunities it creates, and the risks it poses have not been adequately appreciated to date. Whereas the prevailing view is to treat entitlement to membership as an idealized expression of collective identity and shared civic values, Olympic citizenship offers us an important corrective. (24) It shines a light on the vital capacity and increased willingness of governments--the official executors of the membership transaction--to utilize selectively the lure of citizenship when it comes to advancing what are, in essence, reach-to-the-top "leapfrogging" goals. When it comes to Olympic citizenship, rather than diminishing the importance of state control over membership entitlements, more and more countries are actively engaged in a multiplayer, multilevel game that influences their willingness to reconfigure the boundaries of political membership by engaging in form-over-substance, just-in-time citizenship grants. (25) This is a collective action problem that calls for a collective response: it is in the interest of each competing nation to engage in passport swaps, but it is to the detriment of the whole system of fair play and sportsmanship to permit such unregulated and aggressive talent "poaching."

The Olympic citizenship trend thus represents the rise of a more calculated approach to citizenship in which a premium is placed on individuals with extraordinary ability or talent, detaching it from the conventional genuine-ties interpretations. In this new era, governments have come to recognize that the power to issue fresh membership affiliation is one of their biggest assets in a competitive global environment. On this account, the ability to employ discretionary, fast-tracked citizenship grants is a crucial addition to the policy toolbox of advancing the host country's stature, influence, and visibility in the world arena. Indeed, membership goods increasingly serve as a commodity in the hands of issuing governments, allowing them to shore up their respective human capital reservoirs by going on a cross-border shopping spree. (26) Once citizenship is reconfigured as a tradable asset that official agents of the state can flexibly barter, it can almost immediately be put to use in recruiting willing athletes and other top performers. (27)

What makes the debate about Olympic citizenship especially pressing is its visibility and symbolism. Tensions are brewing not only because of the combination of poaching exceptional talent for the sake of advancing a relative national advantage in a fiercely competitive global environment but also because of the intuition that, unlike ordinary professions, certain public service jobs-think elected politicians, top diplomats, or high-ranking military generals-are more closely tied to an expression of sovereignty and collective identity. Few are concerned with the citizenship status of national team trainers and coaches; many national sport teams in Africa, Asia, Latin America, and Europe are trained by "hired gun" coaches. (28) But when it comes to those who actually wear the national uniform and perform at the frontline--in the stadium, government, or battlefield--the sensitivity of the citizenship aspect is notably higher.

Olympic citizenship thus offers us a rare window to explore the most foundational tensions and questions about the future of citizenship in an increasingly globalized and interconnected world. It tests our deepest intuitions about the meaning and content of the relationship between the individual and the state that she officially represents. It further compels us to take a hard look at how these market-oriented and calculated citizenship grants are turning membership bonds that in the past might have focused on notions of collective identity and allegiance into far more instrumental bargains. The consequent emergence of a transfer market draws upon a strategic, perhaps even opportunistic, perception of citizenship as a prized reward that can be used to lure those with abundant talent whom the recruiting nation covets.

And herein lies the greatest paradox: it is for a country's sense of collective pride and national reputation that its government officials are willing to expedite citizenship for those with exceptional talent. This practice potentially leads to situations in which individuals serve as sports ambassadors for a nation to which they have nothing but the flimsiest of links, and in certain cases, on whose territory they might have never even set foot. Yet, this erosion of citizenship-as-membership via country-hopping is done in the name of promoting the national interest of the recruiting state. The advent of Olympic citizenship thus curiously demonstrates both the erosion and the revitalization of a country's control over its membership boundaries along more strategic lines, for it takes agency and governmental action to attract and retain in the era of globalization those highly skilled migrants whom other countries may equally wish to lure to their respective jurisdictions. (29) This remarkable shift and its potentially far-reaching implications for notions of citizenship, our understanding of state adaptability, and active participation in transforming membership goods into tightly controlled "assets" is the central theme of my investigation.

Having outlined the basic conundrums of Olympic citizenship and provided illustrative examples, I then turn to theorize the talent-for- citizenship exchange upon which it rests, before delving into citizenship theory and history in order to show that Olympic citizenship--with its blatant focus on picking winners--differs from more conventional understandings of political membership. I then articulate the competing values at stake: freedom, fairness, and community. The fast-accelerating talent hunt across borders clearly permits greater opportunity and mobility for a select echelon of the "best and brightest" who have risen to the top in the domains of science, technology, arts, business, and sports, but at what cost to other values and commitments? To address this puzzle, I will chart the international framework governing Olympic citizenship, elucidating its multilevel institutional structure and highlighting the crucial role played by transnational governing bodies in defining and enforcing membership eligibility rules. I then turn to ascertain the broader ethical concerns associated with passport swaps, especially as they play out for individuals who have gained expedited membership without any ties (or only minimal ties) to their adopted countries. By taking stock of the major players engaged in these talent-for-citizenship exchanges: exceptionally talented individuals, their source country, the adopting country, and regional and international regulatory bodies, we can identify the cote interests, rights, and potential obligations that the players hold toward each other.

This leads me to explore the promise of legal innovation and institutional design toward alleviating some of the most glaring shortcomings of today's unrestrained talent hunt across borders. In our brave new world, citizenship remains exclusively controlled by government officials (meaning that it cannot be sold or traded by individuals on the open market). But in their hands, it too easily comes to serve as a prized commodity in an international barter for talent. In response to these multiple considerations, I sketch the contours of what I label the fair play mobility principle, which encourages a significant degree of freedom of mobility and action for individuals and governments, while at the same time placing them within justifiable limitations. The key here is the realization that in the world of Olympic citizenship, a competitor's eligibility to represent the new country after they have engaged in country hopping is, in effect, determined as a result of decisions at both the domestic and transnational levels. This last point is crucial: the existence of an already developed cross-border web of governance and regulation of world sports is, as I explain below, both distinctive and promising. It opens the door for new design options (developed in the final part of my discussion) that are simply unavailable in most other migration circumstances, where there is no overarching global regime of regulation. This is yet another manifestation of Olympic citizenship serving as a vanguard for much larger changes yet to come.

I. THEORIZING THE TALENT-FOR-CITIZENSHIP EXCHANGE

The spread of the talent-for-citizenship exchange, with Olympic citizenship as its apex, is one of the most consequential innovations in citizenship practice in the past few decades. Yet it has received only scant attention in academic circles despite its growing prominence in the real world of law and policymaking. In economic scholarship, there have been a few discussions occasionally raising the idea that political membership should be treated like any other tradable asset--even sold to the highest bidder. (30) But these ideas have not taken flight and few authors mention them more than in passing. Recent studies show that most people express strong ethical reservations at the prospect of turning citizenship into a mere formal legal status secured via an expedited government transaction in exchange for performed services, rejecting the idea that "love of country" can be bought with money or its in-kind substitutes. (31)

In legal academia and the political science literature, there is an even larger void. We have not begun to assess the desirability of such changes; the basic analytical framework for evaluating this important global trend has yet to be established. This Feature aims to close the gap. It explores the analytical, normative, and comparative dimensions of Olympic citizenship, placing it in the broader distributional context by identifying the major players and interests at stake, assessing the national and international implications of such profound transformations, and highlighting the sticky situations that accompany the rise of Olympic citizenship. By probing the high stakes and ethical quandaries of the global race for talent, it becomes possible to identify and critically assess the rise of a more calculated understanding of citizenship in which a premium is placed on individuals with extraordinary ability or talent. The framework that I develop here accounts for the multiple stakeholders engaged in the global race for talent, while placing due emphasis on the crucial role played by states and their officials in facilitating the transaction. (32) It further develops possible amendments and innovations that can address the core issues.

The practice described here of either proactively snatching top talent from other countries or offering a sort landing for rising stars who seek to leave their home countries is, of course, not limited to elite sports. In the United States, for example, this strategy has long been utilized to advance national interests in academia, science, technology, arts, and media. (33) Consider Albert Einstein, perhaps the world's most iconic Nobel Prize laureate and knowledge migrant, who was appointed professor of theoretical physics at Princeton in 1933 and then became a U.S. citizen in 1940. (34) The narrative of brain gain for the United States has recently been dubbed the "Einstein principle," (35) but it goes well beyond the brilliant immigrant scientist himself. Between 1901 and 1991, the Nobel Prize was awarded to one hundred researchers in the United States. Almost half of these recipients were foreign-born researchers or their children. (36) And the practice continues. To pick one example, the winner of the 2002 Nobel Prize in Economic Sciences was Daniel Kahneman, a renowned Israel-born social psychology professor from Princeton University. The bulk of Kahneman's pathbreaking theories in the psychology of human judgment and decisionmaking under conditions of uncertainty were developed jointly with Amos Tversky while Kahneman was a faculty member at the Hebrew University in Jerusalem, and later at the University of British Columbia. (37) As far as the official credits for Nobel Prizes go, however, what matters is the affiliation of the recipient at the time the award is granted; hence the laurels for this achievement went to the United States (and Princeton University, too). (38) America was once again rewarded handsomely for recruiting exceptional talent. (39)

American immigration law explicitly designates extraordinary achievement as a recognized admission category. The O-1 visa, often referred to as the "genius visa," targets individuals who possess "extraordinary ability in the sciences, arts, education, business, or athletics." (40) In addition, the employment-based first-preference category (EB-1) offers a privileged path for a green card to those with "extraordinary ability in the sciences, arts, education, business, or athletics" who can demonstrate "sustained national or international acclaim." (41) Evidence of such truly extraordinary ability, as explained by the U.S. Citizenship and Immigration Services, includes receipt of internationally recognized prizes or awards, such as the "Pulitzer, Oscar, [or an] Olympic Medal." (42) Other countries have also created fast-track entry routes geared toward attracting leading researchers or industry innovators, and countries such as Canada, Australia, and Singapore increasingly center their admission policies on highly skilled migrants. (43)

This citizenship barter takes place in a broader institutional context. Major international sporting events like the Olympics revolve around national team participation. The bestowal of citizenship is therefore crucial for unleashing the lured athlete's potential as a boon and boost to the recruiting nation. Gaining the legal status of a citizen is a precondition for representing the new country; it is a formal eligibility requirement set by the Olympic Games' governing bodies. (44) Without it, participation is impossible, regardless of how outstanding an athlete the recruit is. This sets up the unique parameters of Olympic citizenship: the goal is to reach the Olympics, and the path must include a citizenship grant by the recruiting nation as well as recognition by the relevant sporting governing bodies that such a passport swap is valid for the purposes of participating in international events under the new country's flag.

Whereas unskilled or semiskilled workers seeking a better future for themselves and their families increasingly find it difficult to gain even mere admission into a desired destination country as temporary migrants (let alone a right to stay), (45) the highly skilled and gifted speed through the gates of citizenship. (46) In this bifurcated market, elite sportsmen and women--the recipients of Olympic citizenship--sit at the high table of the much courted. As global sporting events have become a showcase for …