"Accelerated" Naturalisation for National Representative Purposes and Discrimination Issues in Individual and Team Competitions under EU Law

Article excerpt

Sport and nationality is a complex issue with diverse manifestations. The first main question which will be dealt in this paper is how so-called national teams that represent a country in international ("inter-state") competition (Olympic Games, world and regional championships, and other representative sporting events) are composed - on the basis of the legal nationality of their members, or on the basis of a special "sporting nationality" according to which additional or other criteria are applicable whether a sportsperson is allowed to participate in the national team. The same question arises with regard to individual athletes who represent a country in international competition. This question will be discussed in particular in the context of the problems that have been created by what may be called accelerated (quick) naturalization. The second main question is how "sporting nationality" is regulated outside the scope of national representation, that is at the level of national club team and individual competition. May sportspersons from abroad participate in the club competitions in other countries of which they do not possess the legal nationality, in particular under EU law? In this paper we will discuss topical discrimination issues: the discrimination of non-team sportspersons in individual national championships; and: the discrimination of professional football players: the FIFA 6+5 and UEFA home grown players rules.

1. Introduction

Nationality is both in international and national law an important connecting factor for the attribution of rights and duties to individual persons and States. Under international law States have for example the right to grant diplomatic protection to persons who possess their nationality. Under national law the obligation to fulfil military service and the rights to become a member of parliament or to have high political functions are frequently linked to the possession of the nationality of the country concerned. However there is no standard list of rights and duties which normally are linked to the nationality of a State under national and international law. National States are in principle autonomous in their decision which rights and duties will be connected to the possession of nationality, whereas under international law the consequences of the possession of a nationality are also a subject of discussion. Nationality can be defined as "the legal bond between a person and a State". This definition is, inter alia, given in Article 2(a) of the European Convention on Nationality (1997). Article 2(a) immediately adds the words "and does not indicate the person's ethnic origin". In other words, nationality is a legal concept and not a sociological or ethnical concept. The nationality of a country in this legal sense is acquired or lost on the basis of a nationality statute. A person possesses a nationality if he or she possesses this nationality by virtue of the general nationality statute or other relevant legislation, rules of implementation, case law and legal practice. (1)

Sport and nationality (or: nationality in sport) is a complex issue with diverse manifestations. The first main question which will be dealt in this article is how so-called national teams that represent a country in international ("inter-state") competition (Olympic Games, world and regional championships, and other representative sporting events) are composed - on the basis of the legal nationality of their members, or on the basis of a special "sporting nationality" according to which additional or other criteria are applicable whether a sportsperson is allowed to participate in the national team. The same question arises with regard to individual athletes who represent a country in international competition. Are there nationality statutes etc. which also have specific "sporting nationality" provisions (provisions for representative sporting purposes)? Or does the determination of "sporting nationality" completely belong to the jurisdiction of organized sport, in which case the international sports federations in principle still could refer to the general legal nationality ("passport nationality") of teams and sportspersons, or could have their own different rules and regulations to provide for the eligibility of sportspersons for international competition. …