Changing nationality in sport: where should we draw the line? A review of the Aljaz Bedene case

Published 07 April 2017 | Authored by: Jamie Singer, Leon Farr

The debate over sportsmen and women changing their nationality is nothing new. The selection of Prince Alexander Sergevich Oblensky[1] (originally from Russia) on the wing for England’s Rugby Union side in 1936 raised many heckles[2]. He may have been naturalised British but he was not a British subject.

Since then, international federations have invested a great deal of time and effort in codifying what nationality means for their sport. In recent years, they have had to balance the principles of European free movement legislation[3] and economic globalisation with the protection of sporting integrity of their respective competitions and tradition.

Some have been more successful than others. Handball’s nationality criteria came under scrutiny in 2015 as Qatar hosted the World Championships.[4] Qatar did not have a long tradition of Handball excellence yet they made their way to the final of their home World Championships. Only four members of the team were actually born in Qatar, whereas the majority hailed from the heartlands of Handball in France and Spain. As for Taekwondo, Aaron Cook managed to compete in one Olympics for Great Britain and another for Moldova. 

Whilst many have benefited from the way the nationality rules have been structured, the tennis player Aljaz Bedene certainly has not. This article reviews the recently decided case concerning Aljaz Bedene’s ability to represent Great Britain’s Davis Cup tennis team. Specifically, it looks at:

  • Aljaz Bedene’s background and tennis’ nationality criteria
  • The decision of the Sport Resolutions arbitration

  • Comment on the decision and the interaction of nationality requirements with proportionality and fairness, and the freedoms enshrined under EU law. 

 

Aljaz Bedene’s background and tennis’ nationality criteria

Bedene was born in Slovenia, but moved to the UK in 2008 to pursue his tennis career and train at centres of excellence in Hertfordshire.[5] After a number of years, and as his ranking improved, he found that he could qualify to play for Great Britain and began the process of qualification in 2012. At that time, with a world ranking of around 45 he would have been ranked British Number 2 behind Andy Murray. 

Bedene had played junior tennis for Slovenia and went on to represent the country in three senior Davis Cup ties between 2010 and 2012. Nevertheless, the International Tennis Federation (ITF) Davis Cup Regulations at that time still allowed Bedene to represent Great Britain provided he: “is a national of that country, has a current valid passport of that country, has lived in that country for 24 consecutive months at some time and has not represented any other country during the period of 36 months immediately preceding the event[6].

In May 2014, Bedene, having already lived in Britain for in excess of two years, applied for a British passport, began to cut ties with the Slovenian team and planned to qualify for selection for Great Britain in 2015, three years after he had last played for Slovenia.

Unfortunately, in October 2014 the ITF announced that nationality rules would change with effect from 1 January 2015 to a “one nation rule[7] – i.e. players could only represent one country at senior level.[8] No transition period was put in place to grandfather those players already engaged in qualifying for second nations under the old rules. Applications for exemptions were entertained under Regulation 34(d) of the new rules, as a national association could “appeal to the Board of Directors to nominate a player who is not eligible […] and the Board of Directors may agree the application if the full circumstances warrant an exception being made”. Nevertheless, Bedene’s application for an exemption was rejected by the ITF.

Last month, Sport Resolutions hosted an arbitration between the ITF on one hand and the Lawn Tennis Association (LTA) and Bedene[9] on the other to determine whether the ITF had acted lawfully in: 

  1. introducing the new nationality rule without formal transition provisions; and,

  2. refusing to grant Bedene an exemption given he had already entered the qualification process and cut ties with Slovenia in reliance on the old rules. In other words, he simply ran out of time to finish the process.

Charles Hollander QC was appointed arbitrator.

 

The Sport Resolutions arbitration 

Mr Hollander acknowledged the principle of EU law that the courts should not concern themselves with rules of a purely sporting nature (Meca Medina v Commission of the European Communities[10]). However, the ITF’s rule, which dictated “changes in nationality” and in particular sought to deter “cheque book nationalism”, where one country effectively bought talent from a poorer nation, was not of a “purely sporting nature” and was subject to the provisions of EU law.

In the opinion of Mr Hollander, Mr Bedene’s position was most unfortunate. He observed: 

I have no doubt that Mr Bedene’s desire to settle in the UK has been genuine and that he has a genuine desire to play for Great Britain. He has been in the unfortunate position that the ITF change in rules has come at precisely the wrong time for him. He cannot be characterised as one of those players who desire to adopt a ‘flag of convenience’.”[11] [25–26] 

Unfortunately, the ITF could not be compelled to grant an exemption to Bedene. Furthermore, although for example, World Rugby (then the IRB) ensured a three-year transition period when they adopted a one nation rule to protect those already in the system,[12] it was not unlawful for the ITF to simply rely on their discretion and refuse to grant exemptions to “right wrongs”.

 

Comment 

Thus Bedene is left betwixt and between. He has cut all ties with Slovenia and offended the Slovenian Tennis Association but is denied the ability to finish his qualification process for Great Britain. 

Every sport is entitled to determine their approach to nationality and defending the integrity of international competition is of course laudable. However, sport in the modern world is a professional business and comprises the livelihood of its participants. Therefore, sensitivity, proportionality and fairness need to be front of mind as governing bodies consider rule changes. Occasionally the impact of these rule changes on individuals can be lost as international congresses vote through paper after paper at their annual meetings.

In his conclusion, Mr Hollander QC suggested the possibility of a further application to the ITF for an exemption, commenting [80]: 

I hope that the passage of time […] will be sufficient to persuade the ITF that Mr Bedene is a worthy candidate for an exemption”. 

Time will tell, but we hope so too. 

Finally, please note that Dr. Alex Mills identified two key points which may be taken from this decision:

  • The first point is that eligibility restrictions in international sporting competitions do have to be consistent with Article 49 of the Treaty on the Functioning of the European Union. Although in this case Regulation 35 was found to satisfy the requirements of Article 49, we may expect further arbitral tribunals and courts to scrutinise the eligibility rules of other sporting competitions on this basis.
  • The second point is that in practical terms the exercise of a discretionary power by a sports regulatory body may be very difficult to challenge, particularly where the practice is not to give reasons for a decision. Although in this case the tribunal observed that “this is not a case where there is or can be an allegation of procedural unfairness” (at [70]), it may be queried whether other courts and tribunals will take a similar approach in future, given the role which a requirement to give reasons plays in questions of procedural fairness under administrative law. The influence of public law principles will, in any case, undoubtedly continue to be an important and contested area of sports law. [13]

Jamie Singer of Onside Law advised the LTA and Aljaz Bedene on the Sport Resolutions Arbitration. Tom de la Mare QC of Blackstone Chambers acted as lead counsel supported by Maurice Holmes of Crown Office Chambers. The arbitral award is accessible via the following link:

https://www.sportresolutions.co.uk/uploads/relateddocuments/02_03_2017_Bedene_LTA_ITF_-_Award.pdf

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About the Author

Jamie Singer profile image

Jamie Singer

Jamie is a founding partner of onside law. He qualified into the Commercial department at Clifford Chance after a secondment to their Dubai office and in 2000 joined the dedicated sports group at Nicholson Graham & Jones. Latterly he spent five years as in-house counsel at IMG where he was principal legal advisor to IMG's tennis, sponsorship consultancy, fashion and models divisions throughout Europe.

Leon Farr

Leon Farr

Leon Farr is an associate at Onside Law advising clients in the sport and media sectors on a range of commercial and corporate matters.

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