In 2009, Sepp Blatter expressed his concerns that half of the players participating in the 2014 FIFA World Cup would be Brazilians naturalized by other countries. The Official list of Players released a few weeks ago tends to prove him wrong[1]. However, some players have changed their eligibility in the past and will even be playing against their own country of origin[2]. This post aims at explaining the key legal aspects in changes of national affiliation and to discuss the regulations pertaining to the constitution of national sides in general[3].

The 32 national associations engaged in the final competition are bound by two sets of rules, namely the Regulations of the 2014 World Cup – Brazil and the Regulations Governing the Application of the FIFA Statutes 2013[4]. Their common purpose is to ensure that players have a genuine, close and credible link with the national association which selects them on its roster[5]. This is primarily ensured by the permanent holding of the nationality of the country of the national association in question[6]. It means that nationality must not be pegged to the residence of the player in a certain country[7]. Naturally, sanctions may apply in the case of a breach of these stipulations[8].

The global race to secure talent meeting this nationality requirement is not new. It appears that it has however reached a new level in light of the Diego Costa case since FIFA regulations do not prevent nor address the issue of dual call-up[9]. Many players, such as Manchester United midfield Adnan Janujaz (who actually just elected to play for Belgium a few weeks ago)[10], are placed in a difficult if not untenable position. They are indeed denied the right to refuse an international selection according to FIFA regulations even if they are called-up by both national teams they are affiliated to[11].

The recent Diego Costa saga put this issue under intense media scrutiny[12]. To summarize the issue, the Brazilian-born player had gained very few international appearances in the preliminary phase, playing exclusively friendlies for his country of birth, before acquiring Spanish nationality and moving to represent Spain at the 2014 FIFA World Cup. His choice was portrayed as traitorous by some officials of the Brazilian football federation. In light of this, imagine for one second the headlines of the worldwide press if Diego Costa had defeated Brazil during the knockout phase (28 or 29 June) or the grand final on 13 July 2014, if both teams had qualified for the second phase of the tournament. In the eyes of many, FIFA is responsible for allowing Diego Costa to play against his country of birth. However, this is overlooking that the acquisition of a new nationality and change of national associations are strictly regulated, and that such regulations are actually decided collectively by the members of FIFA. In this respect, it should be mentioned that the Brazilian Football Federation has not made any official move to modify the rules so far[13].

Acquisition of a new nationality

Article 7 of the 2013 FIFA Regulations reads as follow: “Any Player who refers to art. 5 par. 1 to assume a new nationality and who has not played international football in accordance with art. 5 par. 2 shall be eligible to play for the new representative team only if he fulfils one of the following conditions: a) He was born on the territory of the relevant Association; b) His biological mother or biological father was born on the territory of the relevant Association; c) His grandmother or grandfather was born on the territory of the relevant Association; d) He has lived continuously for at least five years after reaching the age of 18 on the territory of the relevant Association”.

Under this article, the acquisition of a new nationality must be distinguished with double nationality. Dual nationals by birth may elect to represent the national association of their choice. This is notably the case of football players born in Northern Ireland for instance[14]. They can play for the Irish Football Association (Northern Ireland) or the Football Association of Ireland (Ireland) as they can claim British and Irish nationalities at birth[15]. Of note, this article applies only to player who have acquired a new nationality before their first international appearance. If this is not the case, they will not be allowed to play for their new country. 

The “granny rule” and the five-year waiting period are the most controversial eligibility regulations. Some authors find indeed that gaining eligibility through a grandparent does not offer a link close enough with the country that the player wishes to represent. Consequently, they advocate that this provision be deleted from the FIFA regulations[16]. The waiting rule was introduced in order to protect national identity and young players[17] and thus, to prevent expedited naturalization of football players. It institutes a de facto prohibition to play at international level before the age of 23 years old when naturalized. This rule was challenged twice since its coming into force in 2008. First, the United Arab Emirates (UAE) Federation and the Australian Federation sought laxer rules in order to include immigrant players in their national side. The FIFA Congress rejected this bid by 153 to 42 votes and the second submission for a change was even withdrawn before being put to vote[18]. This landslide vote shows that FIFA members are favoring the status quo.

Change of association

Article 8, paragraph 1, of the 2013 FIFA Regulations reads as follow: “If a Player has more than one nationality, or if a Player acquires a new nationality, or if a Player is eligible to play for several representative teams due to nationality, he may, only once, request to change the Association for which he is eligible to play international matches to the Association of another Country of which he holds nationality, subject to the following conditions: a) He has not played a match (either in full or in part) in an Official Competition at “A” international level for his current Association, and at the time of his first full or partial appearance in an international match in an Official Competition for his current Association, he already had the nationality of the representative team for which he wishes to play; b) He is not permitted to play for his new Association in any competition in which he has already played for his previous Association”

Appropriately seeking to balance the interests involved, this rule serves to monitor change of eligibility and protect the integrity of international competitions while respecting the rights of players to move from one country to another[19]. FIFA did not monitor such changes until the mid-1960s[20]. The world governing body for football introduced at that time the concept of an election of nationality and banned change of national association until 2003.

The FIFA Congress introduced a limited right to change national affiliation but it was first reserved for U-23 players only[21]. In 2008, FIFA extended this right to any player provided that they were dual nationals when they had played for their first country and had not played in an Official Competition at “A” level (i.e. with the first team of a national association)[22]. The chart indicates that the number of requests to change association increased dramatically after 2008. However, it has now stabilized at approximately 30 requests per year. In this respect, the 2014 FIFA World Cup does not seem to have had any effect compared to the 2010 edition combined with the new set of rules.

To date, 237 players have taken the opportunity to change national affiliation and 24 of them are currently participating in the 2014 FIFA World Cup. This represents approximately 10.10% of the 237 players and only 3.26% of the 736 players engaged in the competition. This figure is line with the 2004 Athens Olympics Games for instance where 2.6% of the athletes had change their sporting nationality[23]. It shows that the concerns of Sepp Blatter have not materialized and that the situation is currently under control. Therefore, there is certainly no urgent need to further strengthen the existing regulatory framework.

[1]For a mapping of ancestral and international connections between teams, see: Brazil 2014: Visualising ancestral and international connections between teams (http://codehesive.com/wc-ancestry/).

[2] If he had been fielded, Eduardo Alves da Silva would have been the first to play against his country of birth during the opening match (Brazil – Croatia: 2 – 1).

[3] This post will not address the issue of shared nationalities (art. 6 Regulations Governing the Application of the FIFA Statutes 2013) and change of association due to states authorities nor its process (art. 8 par 2 and 3 Regulations Governing the Application of the FIFA Statutes 2013).

[4] Available at FIFA.com.

[5] McCutcheon, National eligibility rules after Bosman, in: Professional Sport in the EU: Regulation and Re-regulation TMC Asser Press (Den Haag) p. 127.

[6] Article 5 par. 1 Regulations Governing the Application of the FIFA Statutes 2013.

[7] Article 5 par. 1 Regulations Governing the Application of the FIFA Statutes 2013.

[8] Fielding an ineligible player is sanctioned by the mandatory forfeiture of the game and a CHF 6’000 fine (article 8 par. 3 the Regulations of the 2014 World Cup – Brazil and article 31 FIFA Disciplinary Code).

[9] A situation of dual call-up may occur when a player, dual national and who has not elected a sporting nationality, is called by both associations he belongs to. This raises the issue of the right to refuse an international selection.

[10] According to the project Brazil 2014: Visualising ancestral and international connections between teams, Adnan Janujaz is the most connected player.

[11] Article 3 par. 1 – Annexe 1 – Regulations on the Status and Transfer of Players 2012.

[12] See for example: Páez Romero, Regulations: Player eligibility: the Diego Costa case, in: World Sports Law Report, Vol. 12 issue 1 (January 2014); Margaritis, The Dynamics of nationality and football, in: LawInSport, 28 April 2014; Lovatt, Changing nationality in football: the FIFA rules that helped Brazilian Diego Costa play for Spain, in: LawInSport, 4 November 2013.

[13] This is probably due to the fact that the Brazilian Football Federation has lost only one player to the current FIFA regulations. It should be noted that Brazilian players who have never been selected nor have played in friendlies are not cast by FIFA statistics on change of eligibility.

[14] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 35.

[15] Cf. CAS 2010/A/2071 Irish Football Association v/ Football Association of Ireland, Daniel Kearns and FIFA, award of 27 September 2010.

[16] For instance: Hall, Fishing for All-Stars in a Time of Global Free Agency: Understanding FIFA Eligibility Rules and the Impact on the U.S. Men’s National Team, in: Marquette Sports Law Review, Vol. 23 Issue 1, p. 205.

[17] FIFA Congress 2011 – Minutes, p. 64.

[18] FIFA Congress 2011 – Minutes, p. 64 and FIFA Congress 2013, Minutes, p. 85.

[19] McCutcheon, National eligibility rules after Bosman, in: Professional Sport in the EU: Regulation and Re-regulation TMC Asser Press (Den Haag) p. 138. A general prohibition of change eligibility is likely to be deemed illegal. Cf. Oswald, First conclusions of the lecturers, in : La nationalité dans le sport : Enjeux et Problèmes, Editions CIES (Neuchâtel) 2006, p.201.

[20] Hall, Fishing for All-Stars in a Time of Global Free Agency: Understanding FIFA Eligibility Rules and the Impact on the U.S. Men’s National Team, in: Marquette Sports Law Review, Vol. 23 Issue 1, p. 194. Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU post Bosman, p. 348.

[21] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 44.

[22] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 45.

[23] Poli/Gillon, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et Problèmes, Editions CIES (Neuchâtel) 2006, p. 59.

Editor's note: Lindsay Brandon is Associate Attorney at Law Offices of Howard L. Jacobs

“Tell the white people of America and all over the world that if they don’t seem to care for the things black people do, they should not go to see black people perform.” – American sprinter and Olympic Medalist John Carlos

On 21 April 2021, the Athletes’ Commission (AC) of the International Olympic Committee (“IOC”) received the “full support of the IOC Executive Board for a set of recommendations in regard to the Rule 50 of the Olympic Charter and Athlete Expression at the Olympic Games.” This came over a year after the 2020 Tokyo Olympic Games were postponed due to the Covid-19 pandemic, and almost a year after the IOC and AC embarked on an “extensive qualitative and quantitative” consultation process to reform Rule 50 involving over 3,500 athletes from around the globe.

Since its introduction of the new guidelines in January 2020, Rule 50 has been touted by the IOC as a means to protect the neutrality of sport and the Olympic Games, stating that “No kind of demonstration or political, religious or radical propaganda is permitted in any Olympic sites, venues, or other areas.”  In other words, the Olympics are a time to celebrate sport, and any political act or demonstration might ruin their “moment of glory”.

In fact, the Rule 50 Guidelines say that a fundamental principle of sport is that it is neutral, and “must be separate from political, religious or any other type of interference.” But this separation is not necessarily rooted in totality in modern sports culture[1], particularly in the United States (“U.S.”).  This is evidenced by the United States Olympic and Paralympic Committee (“USOPC”) committing to not sanctioning Team USA athletes for protesting at the Olympics. The USOPC Athletes stated “Prohibiting athletes to freely express their views during the Games, particularly those from historically underrepresented and minoritized groups, contributes to the dehumanization of athletes that is at odds with key Olympic and Paralympic values.”

Athlete Demonstrations, Historically  

While, unfortunately, many countries have a troubling history of colonialism and slavery, the United States continues to grapple with its racist history. It was not that long ago that Jim Crow laws, legalized racial segregation that replaced slavery, were ended in the United States. Though in 1964, President Lyndon B. Johnson signed the Civil Rights Act that legally ended segregation, de facto segregation has continued through voter suppression tactics, housing discrimination, and lack of access to education and healthcare.

Long before the passage of the Civil Rights Act, some Black athletes held prominence as successful athletes. Despite their fame on the field, they were not treated as equals in society. Naturally, sports became a platform for minorities to speak about the injustices of the racism that plagued America. The following are some examples of athlete-activism that have shaped American sports history.

In 1959, professional basketball player Elgin Baylor was scheduled to play in a game at a neutral site in West Virginia. After the hotel his team was staying at refused to serve him and two of his Black teammates, he sat out the game in protest stating that the game was not more important than his dignity. Mr. Baylor’s act is now considered a defining moment for athlete activism during the Civil Rights Movement. In 1961, following a similar experience by Bill Russell and his Black teammates at an exhibition game in Kentucky, they collectively sat out of the game while their white teammates still played. In response to their actions, Mr. Russell said “We’ve got to show our disapproval for this kind of treatment or else the status quo will prevail.”

In recent times it is common for leagues to change venues for such events as All-Star Games due to the institution of policies perceived as discriminatory. To historians’ knowledge, the first change in venue was in 1965 when twenty-one African American athletes in the American Football League arrived in New Orleans, Louisiana only to find out they could not get service for transportation or food. After a unanimous vote to boycott the game, the AFL moved the location to Houston, Texas.

Shortly thereafter, Muhammad Ali famously refused the draft during the Vietnam War, citing his religious beliefs, and was subsequently stripped of his heavyweight title and banned from his sport of boxing for three years. Athletes such as Mr. Russell stood up to support Mr. Ali, who became an extremely polarizing figure as he was subsequently convicted of draft eviction and sentenced to jail time (which was ultimately overturned by the United States Supreme Court).

In 1967, Kathy Switzer famously ran the Boston Marathon, a male-only event. Despite being physically assaulted by race officials, Ms. Switzer finished the race but the Amateur Athletic Union officially banned women from racing alongside men across all covered events (which remained in effect for the next five years).

In 1968, American athlete activism became the hallmark of the Mexico City Olympic Games when sprinters Tommie Smith and John Carlos took the podium (as gold and bronze medal winners in the 200-meter dash, respectively) and raised their fists in the air as a symbol of Black Power and the racist mistreatment of Black athletes in America. Together with Mr. Carlos and Mr. Smith, Australian sprinter Peter Norman wore a patch on his jacket from the Olympic Project for Human Rights, an organization founded and comprised by prominent Olympic athletes to expose the mistreatment of Black athletes in America. As a result, Mr. Carlos and Mr. Smith were required to leave the games and suspended from the U.S. National Team (although they were ultimately allowed to keep their medals). Ironically, they are now memorialized at the IOC museum in Lausanne, Switzerland.

In 1973, tennis star Billie Jean King formed the Women’s Tennis Association and threatened to lead a boycott of the U.S. Open if the event refused to pay female prize winners as much as the men. In the early 1991, professional basketball player Craig Hodges tried to organize his fellow Chicago Bulls teammates – one of the greatest NBA teams in its history – to protest the Finals in response to the beating of Rodney King by Los Angeles police. He failed to do so, and after expressing his concerns about racism in the U.S. to President George H.W. Bush at his visit to the White House, was subsequently excluded from the NBA after the next season despite being a league-leader in 3-pointers.

Professional basketball player Mahmoud Abdul-Rauf was suspended in 1996 for failing to stand during the U.S. National Anthem before a game. Afterwards, Mr. Rauf was excluded from the League. Twenty years later, National Football League quarterback Colin Kaepernick took a knee during the anthem in response to racial injustice and police brutality in America. Following this, numerous WNBA players wore “Black Lives Matter” shirts in support of the movement that would become world renowned following the 2020 murder of George Floyd that sparked protests around the world and significant athlete activism in the midst of a global pandemic.

Impetus for Rule 50

During the 2019 Pan-American Games, American athletes Gwen Berry and Race Imboden both made symbolic protests as they took the podium to accept gold medals in their respective sports. Following the protests, USOPC CEO Sarah Hirshland sent letters of reprimand to both athletes and issued a 12-month probation but warned the athletes (and presumably their teammates) that any future acts of protest would be met with more severe consequences.

Though consequences have long been in place for political protests at the Olympic Games, the introduction of the new Rule 50 Guidelines, as outlined below, undoubtedly emerged after the demonstrations by U.S. athletes at the 2019 Pan-Am Games. Of course, the IOC does not want any politically-motivated distractions during the upcoming Tokyo Games, and certainly, at least part of this is motivated not just by the published intent of Rule 50, but also by the IOC’s business interests. Olympic Games organizers and host countries rely on financial investment from broadcast companies and corporate sponsors. That said, the majority of that money comes from U.S.-based companies – home to the demonstrating athletes. In fact, as long ago as 2008, former USOPC chairman Peter Ueberroth said “Make no mistake about it. Starting in 1988, U.S. corporations have paid 60% of all the money, period” when asked “Who pays the bill for the world Olympic movement?”.

Even before the pandemic, the Tokyo Games were to be the most expensive in Olympic history (to the official tune of $US15.4 billion). However, the Associated Press reported that a government audit reported it could be “at least twice that much,” only made worse by the postponement due to the Covid-19 pandemic. Certainly, with so much American corporate investment in the Olympics, and with an unprecedented visibility of American athlete activism, the attention to Rule 50, and its new guidelines, was no sudden coincidence. 

However, the May 25, 2020 murder of George Floyd by Minneapolis, Minnesota police and the subsequent demonstrations that followed changed everything, including public corporate stance on racism in America.

Application of Rule 50 to the Athletes

As Rule 50 is written, athletes are still able to express themselves through social media and official press conferences. There are no restrictions for athletes in non-Olympic venues; however, given the restrictions in place due to the pandemic, it is unlikely that the athletes will spend any time in Tokyo outside of an Olympic venue.

When it comes to what is actually prohibited, the examples are targeted and few, and as minority American athletes have rightly criticized – are unclear about what the punishment will be for any infringement or what an infringement might look like, as further explained below. The IOC has provided some non exhaustive examples:

• Displaying any political messaging, including signs or armbands
• Gestures of a political nature, like a hand gesture or kneeling
• Refusal to follow the Ceremonies protocol.

Looking at the examples provided, the “gestures” are certainly reflected in specific demonstrations made by American athletes in response to human and civil rights violations in their home country. In other words, a direct line can be drawn to the rise of athlete activism amongst American athletes and the publishing of the above examples of Rule 50 violations.

For those that disregard Rule 50, the IOC says that “if an athlete or participant is in breach of Rule 50 and the Olympic Charter, each incident will be evaluated by their respective National Olympic Committee, International Federation and the IOC, and disciplinary action will be taken on a case-by-case basis as necessary”. In other words, unlike other global disciplinary codes in place for athletes, there may be inconsistent application of the Rule based upon how signatories decide to handle violations of the Rule.

In response, Ms. Berry, who was previously admonished by the USOPC, stated in July 2020 that “like black and brown people in America it’s unclear how the rules will apply to them and fear is the order of the day”. But, by the end of 2020, the USOPC changed its tone and said that it would decline to punish any other American athlete that demonstrated against racial injustice.

Indeed, since the USOPC’s announcement, it appears that NOCs more favorable to free speech (such as the USOPC) might help “pare back” Rule 50, as it realizes that its survey of global athletes about demonstrations at the Games might not have accurately reflected athletes’ true feelings about its impact, nor perhaps entirely understood that some athletes actually fear mistreatment by their own governments for even answering such a question in a truthful manner.

2020 Changed Athlete Activism in America Forever

On 25 May, 2020, as the pandemic was in full swing and sports were largely on hold, the entirety of America’s focus was on the murder of George Floyd. Even though he was one of over 1,000 people that die by police force in the U.S. each year, Mr. Floyd’s murder was particularly gruesome, and documented in full. What followed was months-long protests and demonstrations all over America, and even worldwide.

As the protests continued, sports resumed and athletes began to compete again, including in the NBA and tennis. With a captive audience desperate for sports content, many of these athletes knew they had a platform to speak out about the injustices and how – despite their fortune as professional athletes – what being a minority in America was like. Given the racial justice reckoning in the U.S., the leagues and event organizers were supportive. For example, Naomi Osaka was allowed to wear masks to each of her U.S. Open matches bearing the names of Black individuals killed by police. Even NASCAR, with arguably the most conservative fan base in America, banned the Confederate flag (the flag of the pro-slavery south that lost the American Civil War) from all of its events.

Indeed, while there was nothing controversial about condemning racism in the U.S., for the first time not only were organizations backing their athletes that engaged in public dialogue about the racism., but countless U.S. companies took to any and every public forum to condemn racism.  Many of these companies are the Olympic Games’ biggest sponsors, including Intel, whose webpage on social equity states that “standing on the sidelines is not an option” and features a photo of protested both kneeling and raising a fist in the air.

With overwhelming acknowledgment of systemic racism in the U.S., the USOPC too changed its tune in its approach to Rule 50. But the IOC persists, holding up its Athletes Commission in defense of punishment of athletes demonstrating against the injustices of their home countries. However, the fact that corporate America now publicly supports such demonstrations only shows how out of touch the IOC’s Rule 50 is. How any potential conflicts between the USOPC and IOC on this issue might play out remains to be seen, and any consequences would be purely speculative.

Conclusion

The Olympics have always demonstrated how sports are a unifying force, but they are not insulated from the global events that impact the lives of Olympic athletes every day. Rule 50, it could be said, as outlined by the IOC Executive Board for the 2020 Games, is in response to the rise of U.S. athlete activism, despite the fact that they have the support of Olympic corporate sponsors.  At face value, Rule 50 seeks to protect the Olympics from “divisiveness” but only furthers the legitimate criticism that the IOC undervalues the voices of athletes that make the Olympic Games possible.

[1] It is also noted that historically, there have been protests at Olympic games from various athletes for various reasons. See, e.g., https://time.com/5764614/political-protests-olympics-ioc-ban/.