Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized in sports and nationality issues. He is also Legal Affairs Manager at the Fédération Internationale de Volleyball. Yann is an editor of the ASSER International Sports Law Blog and has previously published on the blog on nationality conundrums at the FIFA World Cup 2014 in Brazil (see here).  

This contribution aims to decipher the relationship between sporting nationality and the Olympic Games. To this end, the author will first define sporting nationality and discuss athletes’ eligibility in national team in the context of the Olympic Games. Then, selected issues in relation with sporting nationality and the Olympic Games (with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated.

Defining sporting nationality at the Olympic Games

Sporting nationality is in essence twofold:

• on the one hand, sporting nationality is the eligibility concept in use within the world of sport to define the participation of athletes in international competitions[1], i.e. sporting events between the members of an international federation or the National Olympic Committees in the context of the Olympic Games[2]; and

• on the other hand, sporting nationality refers to the legal relationship between an athlete and the national governing body for whom he/she is eligible according to the applicable regulations[3]. Each international federation and organizers of multisport events, such as the International Olympic Committee (IOC), maintain their own set of rules[4]. Consequently, an athlete may have as many sporting nationalities as there are governing bodies in his/her sport[5].

Turning now to athletes’ eligibility for national teams, one should acknowledge that this issue has not always been a primary concern for sports governing bodies[6], including for the International Olympic Committee (IOC). For instance, the first three editions of the Olympic Games foresaw the participation of transnational teams, i.e. teams composed of athletes from different countries competing under one flag[7]. This most notably occurred in track and field, rowing, football, polo, swimming and tug of war[8]. The decision of the IOC to impose the creation of one National Olympic Committee per country in order to facilitate the organization of the Olympic Games put an end to this practice as of 1908. That said, the IOC did not regulate sporting nationality at the Olympic Games before 1920[9]. Nowadays, sporting nationality is governed by Rule 41 Olympic Charter 2015 which reads as follows:

“41 Nationality of competitors

1. Any competitor in the Olympic Games must be a national of the country of the NOC which is entering such competitor.

2. All matters relating to the determination of the country which a competitor may represent in the Olympic Games shall be resolved by the IOC Executive.

Bye-law to Rule 41

1. A competitor who is a national of two or more countries at the same time may represent either one of them, as he may elect. However, after having represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognised by the relevant IF, he may not represent another country unless he meets the conditions set forth in paragraph 2 below that apply to persons who have changed their nationality or acquired a new nationality.

2. A competitor who has represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognised by the relevant IF, 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. This period may be reduced or even cancelled, with the agreement of the NOCs and IF concerned, by the IOC Executive Board, which takes into account the circumstances of each case.

3. If an associated State, province or overseas department, a country or colony acquires independence, if a country becomes incorporated within another country by reason of a change of border, if a country merges with another country, or if a new NOC is recognised by the IOC, a competitor may continue to represent the country to which he belongs or belonged. However, he may, if he prefers, elect to represent his country or be entered in the Olympic Games by his new NOC if one exists. This particular choice may be made only once.

4. Furthermore, in all cases in which a competitor would be eligible to participate in the Olympic Games, either by representing another country than his or by having the choice as to the country which such competitor intends to represent, the IOC Executive Board may take all decisions of a general or individual nature with regard to issues resulting from nationality, citizenship, domicile or residence of any competitor, including the duration of any waiting period.”

The connecting factor between an athlete and his/her National Olympic Committee is currently rooted in nationality[10]. The French version of the Olympic Charter refers however to being a “ressortissant” of the National Olympic Committee which is entering the athlete in the Olympic Games. Unfortunately, these two concepts do not necessarily overlap; the term ressortissant may have a broader meaning than nationality[11]. To add another layer of uncertainty, a Court of Arbitration for Sport (CAS) ad hoc Panel has adopted contradictory approaches in this respect:

•  In United States Olympic Committee (USOC) and USA Canoe/Kayak / International Olympic Committee (IOC), the Panel held that the Olympic Charter did not provide for any exception to the nationality requirement[12]; and

• In Angel Perez / International Olympic Committee (IOC), the same Panel held this time that “the word ‘nationality’ in Rule 46 and its Bye-law should be construed broadly. In so far as it is relevant to consider whether a person has lost his or her nationality, the Panel is of the view that a person may be found to have lost it both in circumstances where he or she is de jure or de facto stateless”[13]. Consequently, the Panel found that the athlete had changed his nationality for more than three years and was eligible to represent the United State Olympic Committee in the 2000 Sydney Olympic Games.

To our knowledge, CAS has never discussed the distinction between nationality and “ressortissant” further. This is not to provide certainty to athletes who may enter into a dispute over eligibility in national team.

It should finally be noted that the Olympic Charter does not mandate for the fulfillment of any other eligibility requirements, such as residency, except in the case of a change of sporting nationality. In this specific case, athletes must have to sit out for three years since they last represented their previous national team before being eligible for a second National Olympic Committee[14]. That said, the Olympic Charter stated that the Executive Board may take all decisions of a general or individual nature with regard to issues resulting from nationality, citizenship, domicile or residence of any competitor, including the duration of any waiting period. This clause aims at covering situations in which there is no National Olympic Committee to enter an athlete for instance[15].

Selected issues

The host nation syndrome:

All host nations of the Olympic Games share one common thread: the fear of not performing during “their” event. This is notably due to the fact that the country welcoming the world during the Olympic Games generally receives a certain quota of places in each sport[16], including for sports with little or no local tradition[17]. While certain nations have set up traditional talent detection and training programs in order to grow a new generation of elite athletes in time, others have chosen a completely different route; they either:

• Naturalize athletes; Italy[18], Greece and Australia have acted in such a way ahead of their Olympic Games[19]; or
• Openly advertise participation in the next Olympic Games on the (sporting) market, in particular to their diaspora.

The “Brazilian Rugby Players Wanted” campaign is the latest example of this. It was launched by the Brazilian Rugby Union (“Confederação Brasileira de Rugby”) in 2013 and aims at finding rugby players with a Brazilian passport or Brazilian descent who are currently unknown to the national governing body and who may qualify for its High Performance Program in view of the Rio 2016 Olympic Games.

The Team of Refugee Olympic Athletes:

On 2 March 2016, the IOC Executive Board decided to create a Team Refugee Olympic Athletes. The approach of the IOC was to allow athletes who had fled their country to be directly entered in the 2016 Rio Olympic Games without the need to resort to the National Olympic Committee of their nationality. To date, ten athletes meeting the relevant sporting requirements have been selected to be part of the Team Refugee Olympic Athletes.

Although portrayed as a first, the IOC Executive Board has made use of its powers on multiple occasions to allow the participation of athletes without a country or without a National Olympic Committee:

• 1992 Barcelona Olympic Games: athletes from the Federal Republic of Yugoslavia participated in the Olympic Games as Independent Athletes[20]. They were not allowed to bear the colors of their country due to sanctions of the UN Security Council (i.e. the Federal Republic of Yugoslavia was banned from all international competitions)[21];
• 2000 Sydney Olympic Games: Athletes from East Timor were authorised to participate under the Olympic banner due to the secession of their country from Indonesia[22];
•  2012 London Olympic Games: three athletes from the Netherland Antilles and one from South Sudan were placed under the Olympic flag[23]. The absence of a National Olympic Committee in these countries triggered the decision of the IOC. Athletes from the Netherland Antilles now compete with the Netherlands;
• 2014 Sochi Olympic Games: three Indian athletes marched under the Olympic banner during the opening Ceremony due to the suspension of their National Olympic Committee by the IOC. They were subsequently authorised to bear their own colors following the removal of the ban on their country.

The concept of a Unified Delegation:

The concept of a United Delegation is only in use for North and South Korea[24]. It is similar to a confederation of National Olympic Committees. In other words, they march together at the opening and closing Ceremonies but maintain separate sporting spheres[25]. Consequently, medalists are honored by the flag of their respective National Olympic Committee, not by their common flag. Of note, the North and South Korean National Olympic Committees are currently engaged in merger negotiations. If successful, there would be only one National Olympic Committee for two countries – and this would be unique in the Olympic Movement. The effects of such a merger on Rule 41 Olympic Charter are currently unknown.

[1] TAS 92/80 du 25 mars 1993, B. / Fédération Internationale de Basketball (FIBA), in : Reeb, Rec. I, n° 13 p. 287 ff.

[2] GARRIGUES Christian, Activités sportives et droit communautaire, Thèse (Université Robert Schuman), Strasbourg (S.I.) 1982, p. 569.

[3] “National eligibility rules confine the right to represent a national side and, thus, to participate in international competition: the criteria employed include nationality, place of birth and residence in the territory for a prescribed period of time” [MCARDLE David, Player Quotas, National Eligibility Restrictions, and Freedom of Movement under EU Law, European Union Studies Association (EUSA), Biennial Conference 2003 (8th), March 27-29, 2003, p. 14].

[4] Shachar Ayelet, Picking Winners: Olympic Citizenship and the Global Race for Talent, in : The Yale Law Journal, Vol. 120 (2011), p. 2134; Siekmann Robert, Sport and Nationality : Accelerated Naturalisation for National Representative Purposes and Discrimination Issues in Individual Team Competition under EU law, in : The International Sports Law Journal, 2011/3-4, 2011, p. 87; Wollmann Anna Sabrina, Vonk Olivier, Groot Gérard-René de, Towards a sporting nationality?, in : Maastricht Journal of European and Comparative Law, Volume 22, Number 2, 2015, p. 306.

[5] GUILLAUMÉ Johanna, L’autonomie de la nationalité sportive, in : Journal du droit international, année 138, n° 2/2011, Avril-Mai-Juin 2011, p. 323 ff.

[6] Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit & Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 81.

[7] The existence of transnational teams is however supported by the International Olympic Committee in the context of the Youth Olympic Games. See: Parry Jim, The Youth Olympic Games – Some Ethical Issues, in : Sport, Ethics and Philosophy, Vol. 6, No 2, 2012, p. 144; Wong Donna, The Youth Olympic Games: Past, Present and Future, in : The International Journal of History of Sport, Vol. 28, No 13, 2011, p. 1836.

[8] Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit & Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 81 and references.

[9] Rule 4 Olympic Charter 1920.

[10] WOLLMANN Anna Sabrina, Nationality Requirements in Olympic Sports, Oisterwijk (Wolf Legal Publishers) 2016, p. 59.

[11] Foreign nationals serving in the army of another state or persons under the protection of a sate (i.e. protected persons) are deemed ressortissant of this particular state. See: Weis Paul, Nationality and statelessness in international law, 2ème éd., Alphen an den Rijn – Germantown (Sijthoff & Noordhoff) 1979, p. 7.

[12] CAS ad hoc Division OG 2000/001 dated 13 September 2000, United States Olympic Committee (USOC) and USA Canoe/Kayak / International Olympic Committee (IOC), in : Reeb, Rec. II, p. 600 s., n° 22 ff.

[13] CAS ad hoc Division OG 2000/005 dated 19 September 2000, Angel Perez / International Olympic Committee (IOC), in : Reeb, Rec. II, p. 631, n° 27.

[14] Gillon and Poli conducted a survey during the 2004 Athens Olympic Games, and found that 2,6% of the athletes registered had previously represented another country [Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 59]. This figure is slightly lower than the percentage of players who have changed national affiliation before participating in the 2014 FIFA World Cup [http://www.asser.nl/SportsLaw/Blog/post/blurred-nationalities-the-list-of-the-23-and-the-eligibility-rules-at-the-2014-fifa-world-cup].

[15] Rule 44.2 Olympic Charter 2015 provides that “Only NOCs recognised by the IOC may submit entries for competitors in the Olympic Games”. Accordingly, Beloff et al. note that “[t]his would seem to exclude the possibility of the IOC independently permitting athletes to compete in the Games, but is has been argued that the IOC enjoys a residual discretion to that effect” [Beloff Michael J. QC, Kerr Tim, Demetriou Marie, Beloff Rupert, Sports law, 2^ème éd., Oxford – Portland, Oregon (Hart) 2012, n° 1.72 p. 21].

[16] Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 63.

[17] To avoid any embarrassment, certain international federations, such as the Fédération Internationale de Hockey (FIH), have now reviewed their Host Country Places policy. The host nation is no longer guaranteed a quota and must meet minimum sporting standards in order to enter a team: http://www.fih.ch/media/808384/2014-02-rio-2016-qualification-system-hockey-final.pdf (02.08.2016).

[18] Shachar Ayelet, Picking Winners: Olympic Citizenship and the Global Race for Talent, in : The Yale Law Journal, Vol. 120 (2011), p. 2093.

[19] BAYLE Emmanuel, DURAND Christophe, Sport professionnel et représentation nationale : Quel avenir ?, in : Reflets et Perspectives de la vie économique, Volume 39 (2-3), 2000, p. 164, footnote n° 29; Gillon Pascal, Poli Raffaele, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et problèmes, Actes du Congrès des 10 et 11 novembre 2005, Oswald Denis (éd.), Neuchâtel (Editions CIES) 2006, p. 58 and 63.

[20] Chappelet Jean-Loup, L’autonomie du sport en Europe, Strasbourg (Editions du Conseil de l’Europe) 2010, p. 24.

[21] Carrard François, Sports and politics on the international scene, in : Rivista di studi polici internazionali, Vol. 78, No 1, janvier-mars 2011, p. 31.

[22] Grasso John, Mallon Bill, Heijmans Jeroen, Historical Dictionary of the Olympic Movement, 5^ème éd., Lanham (Rowman & Littlefield) 2015, p. 582.

[23] Iorwerth Hywel, Hardman Alun, Rhys Jones Carwyn, Nation, state and identity in international sport, in : National Identities, Vol. 16, n° 4, 2014, p. 330 end note n° 1.

[24] To date, there have been three Unified Delegations in 2000; 2004 and 2008 (MERKEL Udo, The Politics of Sport Diplomacy and Reunification in Divided Korea: One Nation, Two Countries and Three Flags, in : International Review for the Sociology of Sport, vol. 43, no. 3, 2008, p. 298).

[25] Hafner Yann, La nationalité sportive et les Jeux Olympiques, in : Droit & Olympisme : Contribution à l’étude juridique d’un phénomène transnational, Actes du colloque du 4 septembre 2013, Maisonneuve Mathieu (dir.), Aix-en-Provence (Presses Universitaires d’Aix-Marseille), 2015, p. 91.