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.