Professional athletes and duelling nationalities

Apr 07, 2021

This article is written by Marco Mazzeschi and contributed to our publication on Medium.com.

Follow us on Medium.com/StudioMazzeschi for more latest articles.

The practice of athletes “swapping” nationality in order to participate to is not a novelty. The 1934 Italian squad that won the Jules Rimet trophy for the first time had as many as four Argentina-born ‘Oriundi’ — Luis Monti, Orsi, Enrique Guaita and Attilio Demaria. Their inclusion was heavily influenced by Italy’s fascist leader, Benito Mussolini. Mussolini was heavily investing in football at that time and was instrumental in hosting the mega event on home soil. He could not let go of this opportunity to win their maiden World Cup in order to demonstrate the country’s strength globally. Hence, he relaxed all the rules in the football federation and permitted the foreign-born players to represent Italy.(*)

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More recently, in each Olympic cycle, the controversy over whether athletes should be allowed to compete for a country where they are not from or do not live, resurfaces. The 2018 Winter Olympics in PyeongChang featured 178 athletes competing for a non-native nation, about 6% of the total competing in South Korea.(*)

It is a well established principle in international law that it is for each State to determine under its law who are its nationals. (*)(*)

But, how does the power of States to grant citizenship matches with the rules governing sport competitions?

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According to the Olympic Charter, “any competitor in the Olympic Games must be a national of the country of the NOC (National Olympic Committee) which is entering such competitor”. (Rule 41/1 Olympic Charter).

Bye-law to Rule 41 indicates that “ a competitor who has represented one country in the Olympic Games ……….. and who has changed his nationality or acquired a new nationality, may participate in the Olympic Games to represent his new country provided that at least three years have passed since the competitor last represented his former country”.

In the last decades there have been a lot of controversies regarding the “nationality swapping” of many professional athletes. (3)(4)

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One of the most recent cases is the tennis star, Naomi Osaka who renounced U.S. citizenship and opted to take Japanese nationality for the 2020 Tokyo Olympics. The upcoming Olympic games influenced her decision to pursue the Japanese nationality in Tokyo.(5)

Every Olympic sport has an international federation that may choose to impose additional nationality requirements on top of Rule 41.

To tackle the controversial practice of “swapping citizenship” in professional sports,(6) the IAAF Council announced in 2017 that all new transfers of allegiance in athletics were frozen with immediate effect. IAAF President, Sebastian Coe, commented:

“It has become abundantly clear with regular multiple transfers of athletes especially from Africa that the present rules are no longer fit for purpose ….. and are open to abuse.”

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Photo by Petr Ruzicka on Unsplash

Hamad Kalkaba Malboum, Africa Area Group Representative added that:

“The present situation is wrong. What we have is a wholesale market for African talent open to the highest bidder.”

Athletes must demonstrate to have a “genuine, close, credible and established link to the new Country”.

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Photo by Brett Jordan on Unsplash

In March 2018, IAAF approved new rules (Rule C.3.4). An athlete who has never competed on behalf of a Country shall be eligible to represent a Member in a Competition if they are a Citizen of the Country by virtue of:

a. having been born or having a parent or grandparent who was born in the Country; or

b. having Resided in the Country for at least three years; or

c. they have been granted refugee status or asylum status and permission to Reside in the Country; or

d. they are a Citizen of the Country by virtue of marriage, by virtue of Residence for less than three years, or by virtue of another means of naturalisation and the approval of World Athletics is obtained which approval shall be conditional upon: (i) the athlete observing a waiting period of three years ; and (ii) the athlete demonstrating that they have a genuine, close, credible and established link to that Country (e.g., through Residence there) and/or will have such a link by the end of the waiting period.

What does it mean “genuine, close and credible” link?

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The principle that citizenship should depend on the existence of a “genuine link” is based upon the Nottebohm decision by the International Court of Justice (1955). According to the Court, factors which are taken into consideration for determining that the link is effective (i.e. genuine) are:

– the habitual residence of the individual

– the centre of his interests

– his family ties, his participation in public life

– attachment shown by him for a given country and inculcated in his children

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Photo by Tingey Injury Law Firm on Unsplash

This orientation has been confirmed recently also by the European Commission, while dealing with the controversial citizenship-by-investment programs established by some Member States (Malta, Cyprus).

The EU Commission confirmed that “Member States generally regard the establishment of a genuine link as a necessary condition for accepting third-country nationals into their societies as citizens”.(*)

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Photo by Christian Lue on Unsplash

According to the Commission, such genuine link is confirmed by the existence of requirements in Member State nationality regimes, such as :

(i) a genuine connection with the people of the country (by descent, origin or marriage); or

(ii) a genuine connection established either by birth in the country or by effective prior residence in the country for a meaningful duration;

(iii) knowledge of a national language and/or of the culture of the country, links with the community.”

The “genuine link” principle is debated

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The need to prove a genuine link in order to obtain citizenship is however disputed by many authors (*). Also the European Court of Justice affirmed that “it is impermissible for Member States to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality” (*).

Furthermore, as noted by Martijn van den Brink, at least three practices implemented by EU Member State are incompatible with the principle of genuine links.

(a) Some forms of dicretionary naturalization, such as the granting of citizenship to individuals who make exceptional economic, scientific or athletic contribution to the country;

(b) Naturalization policies that seek to remedy past injustices, such as Spain and Portugal granting citizenship to descendants of Sephardic Jews;

(c) Investor residence schemes which allow beneficiaries to acquire citizenship without actually being present in the country.

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Photo by Arno Senoner on Unsplash

Conclusions

To use the words of the International Law Commission (suppoted by many authors), the genuine link requirement proposed by Nottebohm cannot be applied strictly, because:

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“it would exclude literally millions of persons from the benefit of diplomatic protection. In today’s world of economic globalization and migration, there are millions of persons who have drifted away from their State of nationality and made their lives in States whose nationality they never acquire.

Moreover, there are countless others who have acquired nationality by birth, descent or operation of law of States with which they have a most tenuous connection. Even supporters of Nottebohm, like Brownlie and van Panhuys, accept the need for a liberal application of Nottebohm”. (International Law Commission, First Report on Diplomatic Protection, p. 229, para 117).

Marco Mazzeschi

Attorney at law. One of the leading corporate immigration lawyers in Italy. Admitted to the Milan Bar Association (1988) and to the Taipei Bar Association (2016), a member of the American Immigration Lawyers Association (AILA) and an accredited partner of Invest in Tuscany. Schedule a consultation call

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