In 2009, Sepp Blatter expressed his concerns that half of the players participating in the 2014 FIFA World Cup would be Brazilians naturalized by other countries. The Official list of Players released a few weeks ago tends to prove him wrong[1]. However, some players have changed their eligibility in the past and will even be playing against their own country of origin[2]. This post aims at explaining the key legal aspects in changes of national affiliation and to discuss the regulations pertaining to the constitution of national sides in general[3].

The 32 national associations engaged in the final competition are bound by two sets of rules, namely the Regulations of the 2014 World Cup – Brazil and the Regulations Governing the Application of the FIFA Statutes 2013[4]. Their common purpose is to ensure that players have a genuine, close and credible link with the national association which selects them on its roster[5]. This is primarily ensured by the permanent holding of the nationality of the country of the national association in question[6]. It means that nationality must not be pegged to the residence of the player in a certain country[7]. Naturally, sanctions may apply in the case of a breach of these stipulations[8].

The global race to secure talent meeting this nationality requirement is not new. It appears that it has however reached a new level in light of the Diego Costa case since FIFA regulations do not prevent nor address the issue of dual call-up[9]. Many players, such as Manchester United midfield Adnan Janujaz (who actually just elected to play for Belgium a few weeks ago)[10], are placed in a difficult if not untenable position. They are indeed denied the right to refuse an international selection according to FIFA regulations even if they are called-up by both national teams they are affiliated to[11].

The recent Diego Costa saga put this issue under intense media scrutiny[12]. To summarize the issue, the Brazilian-born player had gained very few international appearances in the preliminary phase, playing exclusively friendlies for his country of birth, before acquiring Spanish nationality and moving to represent Spain at the 2014 FIFA World Cup. His choice was portrayed as traitorous by some officials of the Brazilian football federation. In light of this, imagine for one second the headlines of the worldwide press if Diego Costa had defeated Brazil during the knockout phase (28 or 29 June) or the grand final on 13 July 2014, if both teams had qualified for the second phase of the tournament. In the eyes of many, FIFA is responsible for allowing Diego Costa to play against his country of birth. However, this is overlooking that the acquisition of a new nationality and change of national associations are strictly regulated, and that such regulations are actually decided collectively by the members of FIFA. In this respect, it should be mentioned that the Brazilian Football Federation has not made any official move to modify the rules so far[13].

Acquisition of a new nationality

Article 7 of the 2013 FIFA Regulations reads as follow: “Any Player who refers to art. 5 par. 1 to assume a new nationality and who has not played international football in accordance with art. 5 par. 2 shall be eligible to play for the new representative team only if he fulfils one of the following conditions: a) He was born on the territory of the relevant Association; b) His biological mother or biological father was born on the territory of the relevant Association; c) His grandmother or grandfather was born on the territory of the relevant Association; d) He has lived continuously for at least five years after reaching the age of 18 on the territory of the relevant Association”.

Under this article, the acquisition of a new nationality must be distinguished with double nationality. Dual nationals by birth may elect to represent the national association of their choice. This is notably the case of football players born in Northern Ireland for instance[14]. They can play for the Irish Football Association (Northern Ireland) or the Football Association of Ireland (Ireland) as they can claim British and Irish nationalities at birth[15]. Of note, this article applies only to player who have acquired a new nationality before their first international appearance. If this is not the case, they will not be allowed to play for their new country. 

The “granny rule” and the five-year waiting period are the most controversial eligibility regulations. Some authors find indeed that gaining eligibility through a grandparent does not offer a link close enough with the country that the player wishes to represent. Consequently, they advocate that this provision be deleted from the FIFA regulations[16]. The waiting rule was introduced in order to protect national identity and young players[17] and thus, to prevent expedited naturalization of football players. It institutes a de facto prohibition to play at international level before the age of 23 years old when naturalized. This rule was challenged twice since its coming into force in 2008. First, the United Arab Emirates (UAE) Federation and the Australian Federation sought laxer rules in order to include immigrant players in their national side. The FIFA Congress rejected this bid by 153 to 42 votes and the second submission for a change was even withdrawn before being put to vote[18]. This landslide vote shows that FIFA members are favoring the status quo.

Change of association

Article 8, paragraph 1, of the 2013 FIFA Regulations reads as follow: “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 international matches to the Association of another Country of which he holds nationality, subject to the following conditions: a) 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; b) He is not permitted to play for his new Association in any competition in which he has already played for his previous Association”

Appropriately seeking to balance the interests involved, this rule serves to monitor change of eligibility and protect the integrity of international competitions while respecting the rights of players to move from one country to another[19]. FIFA did not monitor such changes until the mid-1960s[20]. The world governing body for football introduced at that time the concept of an election of nationality and banned change of national association until 2003.

The FIFA Congress introduced a limited right to change national affiliation but it was first reserved for U-23 players only[21]. In 2008, FIFA extended this right to any player provided that they were dual nationals when they had played for their first country and had not played in an Official Competition at “A” level (i.e. with the first team of a national association)[22]. The chart indicates that the number of requests to change association increased dramatically after 2008. However, it has now stabilized at approximately 30 requests per year. In this respect, the 2014 FIFA World Cup does not seem to have had any effect compared to the 2010 edition combined with the new set of rules.

To date, 237 players have taken the opportunity to change national affiliation and 24 of them are currently participating in the 2014 FIFA World Cup. This represents approximately 10.10% of the 237 players and only 3.26% of the 736 players engaged in the competition. This figure is line with the 2004 Athens Olympics Games for instance where 2.6% of the athletes had change their sporting nationality[23]. It shows that the concerns of Sepp Blatter have not materialized and that the situation is currently under control. Therefore, there is certainly no urgent need to further strengthen the existing regulatory framework.

[1]For a mapping of ancestral and international connections between teams, see: Brazil 2014: Visualising ancestral and international connections between teams (http://codehesive.com/wc-ancestry/).

[2] If he had been fielded, Eduardo Alves da Silva would have been the first to play against his country of birth during the opening match (Brazil – Croatia: 2 – 1).

[3] This post will not address the issue of shared nationalities (art. 6 Regulations Governing the Application of the FIFA Statutes 2013) and change of association due to states authorities nor its process (art. 8 par 2 and 3 Regulations Governing the Application of the FIFA Statutes 2013).

[4] Available at FIFA.com.

[5] McCutcheon, National eligibility rules after Bosman, in: Professional Sport in the EU: Regulation and Re-regulation TMC Asser Press (Den Haag) p. 127.

[6] Article 5 par. 1 Regulations Governing the Application of the FIFA Statutes 2013.

[7] Article 5 par. 1 Regulations Governing the Application of the FIFA Statutes 2013.

[8] Fielding an ineligible player is sanctioned by the mandatory forfeiture of the game and a CHF 6’000 fine (article 8 par. 3 the Regulations of the 2014 World Cup – Brazil and article 31 FIFA Disciplinary Code).

[9] A situation of dual call-up may occur when a player, dual national and who has not elected a sporting nationality, is called by both associations he belongs to. This raises the issue of the right to refuse an international selection.

[10] According to the project Brazil 2014: Visualising ancestral and international connections between teams, Adnan Janujaz is the most connected player.

[11] Article 3 par. 1 – Annexe 1 – Regulations on the Status and Transfer of Players 2012.

[12] See for example: Páez Romero, Regulations: Player eligibility: the Diego Costa case, in: World Sports Law Report, Vol. 12 issue 1 (January 2014); Margaritis, The Dynamics of nationality and football, in: LawInSport, 28 April 2014; Lovatt, Changing nationality in football: the FIFA rules that helped Brazilian Diego Costa play for Spain, in: LawInSport, 4 November 2013.

[13] This is probably due to the fact that the Brazilian Football Federation has lost only one player to the current FIFA regulations. It should be noted that Brazilian players who have never been selected nor have played in friendlies are not cast by FIFA statistics on change of eligibility.

[14] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 35.

[15] Cf. CAS 2010/A/2071 Irish Football Association v/ Football Association of Ireland, Daniel Kearns and FIFA, award of 27 September 2010.

[16] For instance: Hall, Fishing for All-Stars in a Time of Global Free Agency: Understanding FIFA Eligibility Rules and the Impact on the U.S. Men’s National Team, in: Marquette Sports Law Review, Vol. 23 Issue 1, p. 205.

[17] FIFA Congress 2011 – Minutes, p. 64.

[18] FIFA Congress 2011 – Minutes, p. 64 and FIFA Congress 2013, Minutes, p. 85.

[19] McCutcheon, National eligibility rules after Bosman, in: Professional Sport in the EU: Regulation and Re-regulation TMC Asser Press (Den Haag) p. 138. A general prohibition of change eligibility is likely to be deemed illegal. Cf. Oswald, First conclusions of the lecturers, in : La nationalité dans le sport : Enjeux et Problèmes, Editions CIES (Neuchâtel) 2006, p.201.

[20] Hall, Fishing for All-Stars in a Time of Global Free Agency: Understanding FIFA Eligibility Rules and the Impact on the U.S. Men’s National Team, in: Marquette Sports Law Review, Vol. 23 Issue 1, p. 194. Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU post Bosman, p. 348.

[21] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 44.

[22] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 45.

[23] Poli/Gillon, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et Problèmes, Editions CIES (Neuchâtel) 2006, p. 59.

The book under review is the published version of a PhD thesis defended in 2013 by Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of legal developments rather than anticipating or triggering them. This was definitely not the case of this book. Its core subject of interest is the study of the independence of the Court of Arbitration for Sport (CAS) – an issue that has risen to prominence with the recent Pechstein ruling of January 2015 of the Oberlandesgericht München. It is difficult to be timelier indeed.

The fundamental question underlying Vaitiekunas’ research is: “does CAS have sufficient independence to be a law-maker?”.[1] Indeed, as many in the field, Vaitiekunas considers the CAS as a key institution in the production of a lex sportiva or transnational sports law. Hence, he thinks that “the closer CAS’s standards of independence and impartiality are to those that apply to the judiciary, the stronger may be the claim that CAS’s lex sportiva constitutes law”.[2] Although I am myself sympathetic to the idea of the existence of a lex sportiva, I would be cautious in attributing it mainly to the CAS. Instead, I think that the notion of lex sportiva is rather reflecting the complex legal interaction between the rules (and raw political power) of international Sports Governing Bodies (SGBs) and the CAS’s jurisprudence.[3] Yet, this should not detract from the value of posing the question of CAS independence as a hallmark of its legitimacy.

The book is relatively slow in tackling this question. The author is keen on providing a comprehensive analysis of the general context of his work in Chapter 2 on the CAS and the lex sportiva[4], of his theoretical apparatus in Chapter 3 on the relevant theories of law[5] and of his analytical frame to assess the independence of the CAS in Chapter 4 on independence and impartiality.[6] Although these parts are certainly useful to comprehend the red thread guiding his research, they certainly could have been synthetized and shortened. Any reader interested mainly in the assessment of the independence of the CAS might be tempted to jump directly to Chapter 5 and 6 providing the core of the author's analysis and his most valuable contribution to legal scholarship.

Chapter 5 reviews in detail the well-known favourable assessment by the Swiss Federal Tribunal of the independence of the CAS.[7] Yet, the most important and interesting aspect of the chapter is that it already engages in a critical assessment of this jurisprudence. When discussing the impact of the post-Gundel Paris reform agreement, Vaitiekunas concludes that “a number of facets of the reform indicate continuing links, albeit indirect between the Olympic governing bodies and CAS, thus undermining the perception that CAS is truly an independent arbitral body”.[8] He notes that “[w]hether ICAS members are appointed from within or outside the membership of the top sports bodies, they ultimately owe their appointment to these bodies”.[9] He criticizes the CAS arbitrator list as it “does not indicate who nominated the individual arbitrators, leaving an athlete at risk of choosing an arbitrator nominated by the very IF [International Federation] against which they are taking CAS proceedings”.[10] In any case, “the appointment [as CAS arbitrator] can be seen as occurring under the control of the Olympic governing bodies through their members or delegates in ICAS”.[11] Interestingly, this reasoning is analogue to the one used by the Oberlandesgericht München in its Pechstein ruling.[12] Unsurprisingly, Vaitiekunas is also extremely critical of the SFT’s judgment in the Lazutina case endorsing the independence and the legitimacy of the CAS post-Gundel.[13] He argues that the SFT “appears almost as an apologist for CAS”[14] and criticizes its “non-objective approach to statements by people close to CAS”.[15] Moreover, he denounces a “formalistic approach in assessing CAS’s independence from the IOC”.[16] Indeed, by privileging formal factors, such as the ICAS formal legal independence, “the SFT implicitly chose not to lift ICAS’s veil to consider who has the real powers behind ICAS”.[17] Importantly in light of the Pechstein case, he attacks the fact that “the SFT limited its analysis concerning CAS’s institutional independence solely to CAS’s independence from the IOC and did not consider CAS’s independence from the Olympic governing bodies collectively”.[18] Finally, he reiterates his critique against the closed list system, arguing that “the very process for the nomination and selection of arbitrators to the list creates an appearance of bias in favour of the Olympic governing bodies”.[19] 

Henceforth, Chapter 6[20] vows to pitch CAS’s independence against judicial independence standards discussed in Chapter 4. Coming from Chapter 5, the suspense as to the outcome of the assessment is relatively limited, it is clear ex ante that the author is doubtful of the independence of CAS. He assesses first the individual independence of the arbitrators, referring to four main criteria: 

"The four main recognised safeguards of a judge’s personal independence under judicial independence norms are security of tenure in a judge’s appointment, restrictions on the removability of a judge, adequate and secure remuneration for judicial service and immunity from legal action in the exercise of judicial functions."[21]

Furthermore, he contends that an arbitrator must fulfil a yardstick of substantive independence implying “a judge to be free from any inappropriate connections or influences".[22] In this regard, he argues “all CAS arbitrators […] owe their presence on the closed list to the Olympic governing bodies, thereby creating the appearance of a lack of independence from them”.[23] Finally, regarding the institutional independence of the CAS, Vaitiekunas suggests three main focal points: the structural links, the administrative links and the financial links. The structural links of the CAS are perceived as the main hindrances to CAS’s independence. This is because, “[g]iven the mutual ties and links which the IOC, the IFs and the NOCs […] have under the Olympic Charter, these bodies may appear to have influence collectively on ICAS”.[24] His conclusions is sans appel: “The potential influence that the Olympic governing bodies may be perceived to exercise over ICAS and the CAS secretary general is inconsistent with judicial independence norms which require judicial matters to be exclusively within the responsibility of the judiciary”.[25]

This highly sceptical view regarding the independence of CAS, leads him to propose a set of potential reforms.[26] His first recommendation is to implement “a restructuring of ICAS to ensure that it is institutionally independent”.[27] This would imply that “appointments to ICAS should exclude members of the IOC, executive members of the IFs, NFs and NOCs and their employees and anyone recently in these roles”.[28] Moreover, “the CAS code should be amended to prohibit the appointment of Olympic governing body associates or athlete associates as CAS arbitrators”.[29] Regarding the funding of ICAS and CAS, he suggests “the imposition of a levy on the broadcasting rights to or sponsorships of major sports events”.[30] In order to secure CAS arbitrators individual independence, he is in favour of appointing them “on a tenured basis to a specified retirement aged”.[31] He also recommends, “that arbitrators be appointed randomly to cases or on a predetermined basis”.[32] Eventually, he advises “to provide arbitrators with greater security in remuneration by appointing them on a fixed salary, like judges, payable regardless of whether and how many cases they are appointed to arbitrate”.[33] Vaitiekunas is convinced that if his recommendations were implemented, “CAS would be a true sports court, rather than an arbitral tribunal”.[34] 

The final chapter 7 of the book dedicated to CAS’s independence from external judicial review is a bit of a mystery to the reviewer. Vaitiekunas offers a relatively succinct but rigorous comparative study of the various national (and European) judicial avenues where CAS awards can be reviewed. He concludes rightly that CAS awards can be subjected to the control of national courts and European Institutions. However, his assumption that “CAS awards must be independent from review or intervention by state courts, such that they operate as final authority in the resolution of sports disputes”[35] and especially the consequence he derives from it, denying to lex sportiva any status as a legal order seems to be flawed.[36] Indeed, in no legal context, national or otherwise, is a judicial decision absolutely final. National courts’ judgments are often contested when their recognition is asked in another country, this does not entail that national law is not law. Similarly, the subjection of the judgments of the highest national courts of the EU Member States to the preliminary reference mechanism in place under EU law should not lead us to deny any legal value to national law. We are living in a pluralist legal age ruled by complex transnational legal assemblages and lex sportiva fits very well into this picture. Nonetheless, on this point I share the view of the author of this book, the question of the legitimacy of both the rulemaking bodies of lex sportiva (read FIFA or the IOC) and its adjudicative bodies (read the CAS) is of great importance. In fact, their illegitimacy, and here I differ from Vaitiekunas’ argument, should not mainly imply their non-existence as law-making bodies, but the need for a reform (or even a revolution) in the way they operate.

This book is precious, because it highlights very well the challenges ahead in our transnationalizing legal world. Democratizing international (or transnational in this case) judicial bodies is key, if the ideal and democratic function of an independent justice for world citizens is to be sustained.[37]  We need to understand that transnational private bodies are in the business of exercising a kind of public authority and should live up to analogous accountability and legitimacy standards than the one that have been progressively developed in the framework of the nation-states for national courts. The CAS is one of those, and the pending Pechstein case is a necessary itch to reflexively trigger a much-needed reform of its internal structure and functioning. Which precise form this reform will take is not crucial. What is essential, however, is that it ensures that CAS arbitrators be seen as rendering sporting justice at a personal (if not geographical) distance from those who are adopting and enforcing the rules of the lex sportiva. This book is an important critical contribution in that direction.

[1] Vaitiekunas A (2014) The Court of Arbitration for Sport: Law-Making and the Question of Independence. Stämpfli Verlag, Berne, p 2.

[2] Ibid, p 3.

[3] Duval A (2013) Lex Sportiva: A Playground for Transnational Law. European Law Journal 19: 822-842.

[4] Ibid, pp 7-50.

[5] Ibid, pp 51-83.

[6] Ibid, pp 85-120.

[7] Ibid, pp 121-177.

[8] Ibid, p 142.

[9] Ibid, p 146.

[10] Ibid, p 150.

[11] Ibid, p 151.

[12] See supra n 1, Oberlandesgericht (OLG) München [2015], paras 3b, bb, 3aaa and bbb.

[13] Supra n 2, Vaitiekunas, pp 168-174.

[14] Ibid, p 169.

[15] Ibid.

[16] Ibid, p 171.

[17] Ibid.

[18] Ibid.

[19] Ibid, p 174.

[20] Ibid, pp 179-200.

[21] Ibid, p 184.

[22] Ibid, p188.

[23] Ibid, p 189.

[24] Ibid, p 191.

[25] Ibid, p 193.

[26] Ibid, pp 197-199.

[27] Ibid, p 197.

[28] Ibid, p 198.

[29] Ibid.

[30] Ibid, p 199.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid, p 265.

[36] Ibid, p 269 : ”CAS’s lack of final authority, in particular where state public policy or EU law are in question, derogates from CAS’s lex sportiva being an independent legal order“.

[37] For a similar idea applied to international courts, see Von Bogdandy A, Venzke I (2014) In Whose Name? A Public Law Theory of International Adjudication. Oxford University Press, New York.