CAS Upholds Decision of FIFA

Published 17 October 2010

By Gary Rice, Beauchamps Solicitors. The Court of Arbitration for Sport (‘CAS’) has denied an appeal by the Irish Football Association (‘IFA’) against a decision by FIFA to accept a request made by the Football Association of Ireland (‘FAI’) and by footballer, Daniel Kearns (represented by Gary Rice, Beauchamps) to change from the Northern Irish team to the Republic of Ireland team.

This landmark case solidifies the position that players born within the island of Ireland are eligible to play for either country at international level and promotes the individual free choice of the player. 

Daniel Kearns was born in Northern Ireland and holds both a British and Irish passport and therefore has dual citizenship. His grandparents were born in Northern Ireland as were his parents who held Irish passports at the time of his birth. Kearns represented Northern Ireland in football at U-15 to U-19 levels. However, he never played a match in an official competition at the top international level for the IFA. 
The IFA, as part of their submissions to CAS, sought to rely on the ‘1950 FIFA Ruling’ which provided that the IFA and the FAI could each field a representative team for international matches provided that each refrained from selecting players without connection to its respective territory. The IFA argued that Kearns held no territorial connection to the Republic of Ireland and therefore could not play for the team. Although such rulings have been superseded by the 2009 FIFA Statutes and the 2009 Application Regulations (the ‘Regulations’), the IFA argued that they must be read in light of the ‘1950 FIFA Ruling’. The IFA also sought to rely on Article 16 of the Regulations arguing that Kearns failed to comply with this provision. Article 16 of the Regulations sets down certain criteria for players of one nationality to represent two or more associations, provided that they meet certain territorial connections to the country of the desired association. 

CAS rejected the IFA’s submissions and ruled that the eligibility of players to play for association teams is conclusively ruled by the Regulations. CAS ruled that Article 16 of the Regulations did not apply to Kearns as he was not a player of ‘one nationality’ but held dual citizenship. CAS asserted that Article 15 of the Regulations applied in this case. This provides that a player can be selected to play on a representative team of the country of which he holds a permanent nationality irrespective of the fact that he does not have any territorial connections to that country. The provision also detailed that if a player has already been selected for and has participated in any match in an official competition (at a certain level) he may not switch to another team at that level for which he would otherwise be eligible. As Kearns had not previously played at the top competition level for Northern Ireland he was permitted to play at that level for the Republic of Ireland under Article 15 of the Regulations. If Kearns had played at international level for Northern Ireland it was noted that he might have been permitted to avail of the opportunity to switch association. However, it was noted that any such switch could only be effected once. 

Under the Good Friday Agreement, it is the right of every individual born in Northern Ireland to hold both a British and Irish passport should they so wish. The effect is that such persons have the right to have dual nationality. 

This decision confirms the existing position. It remains to be seen if it will open the floodgates and lead to an increase of players moving from the Northern Ireland to the Republic of Ireland team. 

This article was originally published in 'Sports Update' the newsletter of Beauchamps Solicitors. 

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