The dynamics of nationality and football
Published 28 April 2014 By: Konstantinos Margaritis
In the increasingly international sports community, Konstantinos Margariti explores the dynamics of nationality and football, and puts forward his views on why we should think twice before trying to frame the interrelationship from the perspective of sports.
Recently, attention of the football society around the world has been drawn to the case of Diego Costa. Diego Costa is a Brazilian football player who, since 2007, has been continuously playing for various Spanish football clubs. On 5 July 2013, he obtained Spanish nationality and became a dual citizen of both Brazil and Spain. His high level of performance for his current club, Atletico Madrid, led the Royal Spanish Football Federation to make an official request to FIFA for permission to call Diego Costa to play for the Spanish national team, even though he had already made two appearances for the Brazilian squad in two friendly matches against Italy and Russia1.
Diego Costa’s case, which isn’t isolated, brings into focus the wider issue of how the world of football interacts with the concept of nationality. The author believes that, to get the core of the topic requires us to undertake a broad exploration of how the prevailing political landscape relates to multi-nationalism in football, rather than to analyse any specific legal decision relating to a particular player.
The aim of this article is to explore how and why the issue is best defined in terms of the general rules of nationality (particularly the relationship person and state) and to then explore the results.
A number of players, most notably from Brazil, have been naturalized in different countries around the world to try to help national teams progress further in international football and to play in international competitions. African countries in particular have been accused of giving nationality to foreign players purely so that they may represent them in international football competitions2. One such case is Equatorial Guinea, which has naturalized players originating from a variety of countries (Brazil, Liberia and Cameroon3). Many European teams, including football giants such as Germany and Spain , have acted similarly in certain periods of their recent history4.
Perhaps unsurprisingly, this has proved controversial. President of FIFA, Sepp Blatter stated in 2007 in relation to footballers changing their nationality: “if we don't stop this farce, if we don't take care about the invaders from Brazil towards Europe, Asia and Africa then, in the 2014 or the 2018 World Cup, out of the 32 teams you will have 16 full of Brazilian players”5. He continued to propose that the EU should promote a set of rules in order to stop the overwhelming presence of non-national players in club leagues; an approach that, with reference to players that hold EU citizenship, is arguably incompatible with fundamental principles of EU law, as the principle of non-discrimination on the ground of nationality6. In line with the aforementioned, the EC Commission’s White Paper on Sport, released in 2007 , underlined the prohibition of discrimination on the ground of nationality regarding free movement and residence within EU territory as well as among workers that hold nationality of one of the member states as indicated in the Treaties7.
However, the Commission accepted restrictions to the principle of free movement in certain occasions but under strict circumstances. In the words of the Commission, those restrictions have to be limited and proportionate and always in accordance with the Treaties and ECJ rulings. As far as players that hold EU citizenship are concerned, the Treaties explicitly prohibit any form of restrictions, a principle confirmed by the ECJ in the famous Bosman case. Therefore, the concept of “non-nationals” in the words of President Blatter may refer only to third country nationals.
The current regulatory backdrop
Pursuant to Article 7 of the FIFA Regulations Governing the Application of the Statutes, any player who assumes a new nationality and who has not played international football under the conditions specified in Art. 5 par. 2 shall be eligible to play for the new team only if he fulfils one of the following conditions:
- he was born on the territory of the relevant Association;
- his biological mother or biological father was born on the territory of the relevant Association;
- his grandmother or grandfather was born on the territory of the relevant Association;
- he has lived continuously for at least five years after reaching the age of 18 on the territory of the relevant Association8.
The first three categories are related to “ius sanguinis”, the principle of conferment of nationality by descent9. The fourth category is the focus of Mr. Blatter’s complaints. Foreign players, who acquire the nationality of State of the relevant Associations after five years of continuous residence in the relevant State, gain the right to play for the national team under the FIFA Regulations.
The rules that govern the eligibility of a player to join the national team of a country by gaining its nationality, if no ancestral connection is applied, have already been modified to a more strict direction : namely, the residency requirement was extended from two to five years in May 200810. Nevertheless, this new regime does not seem to combat the problem at its source. In the author’s view, three more years of living in the territory of an association is not a grand affair in exchange for a possible participation in a World Cup and all economic prospects that this brings. At the very end, “continuously living” in the territory of an association, does not restrict the player from playing for a team in another association if the requirements are met.
The globalization of football is responsible for making FIFA’s rule largely inefficient. Countries like Brazil are now effectively “exporting” players to teams in almost every association and at every level11. From top-level players in the Champions’ League, to lower level players in domestic leagues, being granted a second nationality is now commonplace.
Reframing the issue
However, the author believes that the central question is still unanswered: why should footballers be treated differently to any other person when it comes to considering the rights of an individual to nationality? The author shall address this question as follows:
- First, determining nationality is a core facet of national sovereignty. The State is the only responsible actor when it comes to dealing with issues related to its nationality (grant and removal), since the impact of such actions ultimately affect the State.
- Secondly, article 15, paragraph 2 of the Universal Declaration of Human Rights states that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. The right of changing nationality is inherent to every individual and it is a right that shall not be deprived, whether the individual is a footballer or not.
Prior to thinking of representing a country at football, the player, as human right, is granted the nationality of their chosen country, which arguably has far more important and wide reaching ramifications than simply facilitating the player’s participation in the national football squad. Nationality is used to indicate a formal legal bond between an individual and a State12, so that the individual is considered as a member of the respective nation from the perspective of international law13. As a result, the player acquires political and economic rights and becomes a citizen of the State. Although, technically speaking, those rights are mostly related to the notion of citizenship, the terms have essentially the same concept as nationality.Citizenship is focused on the internal political life of the state and nationality is a matter of international dealings14.
Therefore, we can see that the designation of nationality is entrenched in national and international laws and has far more important outcomes than those affecting football. In our initial example, Diego Costa is now linked to Spain in a formal legal way, which gives him the status of a Spanish national. Consequently, he is now, among other things, an EU citizens, and eligible to vote and even run for the European Parliament. The apparent paradox here, the author argues, is that Diego Costa has the unfettered right to represent the people of Spain politically in the European Parliament, whereas he needs a special permission to represent the people of Spain in the forthcoming World Cup.
To summarize, the State is responsible for granting nationality on the basis of national legislation. This approach substantially guarantees a universal human right, the right to change nationality. Nationality involves the guarantee of certain political and economic rights that are of the highest importance, and which outweigh the right to participate in national football. The connection of the person with the State that is established with nationality embraces all living and working aspects of daily life.
We live in the era of globalization. People of the world are increasingly being incorporated into a single world society. It is easier than ever for someone on one side of the world to interact, to mutual benefit, with someone else on the other side of the world15. Within this sociological environment that is leading towards a multi-national society, the demand of changing nationality is increasing. A player who has changed nationality essentially becomes a member of a new nation, and football cannot be excluded from the consequences that derive from that. Given the fundamental importance of nationality, the author argues that any changes to nationality rights as they currently stand should not be led by something as relatively trivial as the policies of national football teams.
By way of comparison, the Rules of the International Olympic Committee are far more flexible on the issue at stake. Rule 42 simply dictates a temporary condition of three years to have passed since the last participation of the athlete with the former national team, which can be also reduced upon mutual agreement among the National Olympic Committees involved as well as the International Federation16.
At the end, nationality is exclusively a matter of sovereign States, and it is they who must formulate cogent policies that focus on answering applications for nationality from foreign football players that have no previous relation to the country, and that are made ostensibly on the basis of obtaining the right to play for the national football squad. One just hopes they keep the bigger picture mind.
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Konstantinos holds a Degree in Law and LLM in International and European Public Law and currently is a PhD candidate at the Law School of the National and Kapodistrian University of Athens. He works as an Attorney at Law in Greece, mostly specializing in administrative law and protection of fundamental rights.