Abstract
The rules for athletes to participate for a different country than their original nationality is fixed by the International Olympic Committee under Rule 41 and these principles have been adopted by different sports federations including the World Athletes Federation (WAF). The issue has become significant because selected countries are able to acquire athletes from other continents to the extent that the identity of teams no longer reflects the ethnicity of the home country. The movement of people across continents to acquire citizenship of other states is a global trend in sports migration. This has made international athletes into a commodity and as the existence of sport in the modern world is a professional vocation this merchandising of nationality has increased the aggregate of medals for some states. International sports law is a sui generis set of principles which transcends both public and private spheres. This is highlighted through the disjunction between the conception of nationality in the sports world and that of general legal nationality, particularly in the composition of national teams in international competition. This paper considers the various concepts of nationality that have emerged as a consequence of lex mercatoria and whether it is possible to implement a body of principles to regulate the transfer in the context of athletes. The oversubscription of nationality transfers is not reasonable or proportionate and WAF should develop higher standards by investing in the developing countries to prevent migration that is purchasable and instead improve the grass root facilities from where there is an exodus.
Key words
lexmercatoria, Genuine link doctrine, World Athletics Federation, Nationality law citizenship, Rule 41,jus domicilii, lex matrimonii
Introduction
Nationality can be defined as ‘the legal bond between a person and a State’. A person will have the nationality of a country if he meets the requirements set out in the law of that country and state sovereignty ensures that national governments are autonomous in their decision making as to what exactly requirements need to be satisfied. As a result, the rules for obtaining nationality vary considerably from one country to another but in recent times in order to increase their prospect of winning gold medals countries have been accelerating citizenship to talented sportsmen and women from abroad. The issue is if the barriers of transferring nationality should be further eroded for athletes in the track and field in order to enable athletes from countries in the Southern hemisphere to migrate, and also enable the countries to which they have migrated a greater opportunity to be on the medals tables. The World Athletics Federation (WAF) which is the regulatory body has to evaluate its laws of transferring nationality and in order to prevent a market forming need to prevent simplified procedures of citizenship in order to uphold the sacred goals of the Olympic movement which are to promote competition and retain the ideal of transnational sport.
The process of nationality exchanges in sports is rapidly increasing and this is particularly in athletes which are prestige sports and nations would like to attain medals. This is not always possible with home grown talent and they have to rely upon foreign athletes to harness their medal prospects. In recent years it has been noticed that countries in the Arabian Gulf states have been able to award citizenship to athletes from the African countries who have transferred their loyalties to the states who have given them their nationality or citizenship. The motivation is that the athletes need to relieve themselves of economic hardships and want to participate at the highest level and to establish their careers. The issue is if the transfer will augment the standards of performance of the states which have awarded citizenship and if the WAF can achieve a level playing field where sports men and women can attain the laurels denied to them at present.
The International Olympic Committee (IOC) regulations state that an athlete’s Olympic nationality is dependent on his/her citizenship status (which allows athletes to get selected by their national committees). The naturalized athletes, or those with multiple citizenship who make a request for a transfer of allegiance after already having represented one country at an international competition, generally have to wait three years before being eligible for competing another country. This period can be waived or reduced if the IOC, the international sports federation and the National Olympic Committees (NOC) concerned come to such an agreement.
Rule 41 Byelaw 1 states that “any competitor in the Olympic Games must be a national of the country of the NOC [National Olympic Committee] which is entering such competitor”. Athletes with multiple citizenships can select one of their nationalities to represent but once they have represented a nation, they must follow the rules under Bylaw 2 of Rule 41 if they want to represent a different country in the future. This bylaw requires an athlete to wait three years after representing one country until they can represent another, unless both countries agree to waive the waiting period. The WAF rules on transfer of allegiance stipulate a three year waiting period, however, this can be reduced to 12 months with the agreement of the relevant member federations of the two countries involved, or reduced to no waiting time at the discretion of the WAF. Rule 41 and its bylaws present the minimum requirements for all Olympic athletes, however the charter allows the international federation for each sport to enforce stricter guidelines.
It is widely accepted and practiced that being a “national” under Rule 41 means being a citizen of that country and every federation imposes its own designated rules as to the citizenship requirements. The federations may elect to impose additional nationality requirements in addition to Rule 41 and WAF as the governing body for track and field athletes has deemed this rule and its bylaws sufficient. The WAF’s main concern is not about whether national teams reflect their nation’s original citizens or domiciles but those are concerned about the possibility of human trafficking that can occur due to the marketization of citizenship which can result from the ability to transfer allegiances.
The WAF has adopted the Transfer of Allegiance Regulations that are effective at present for athletes to adopt a new country as their abode for citizenship purposes and represent their sport in international events.The rules state as follows:
R 1.3 “World Athletics fully respects national laws conferring Citizenship, and also recognises that Athletes may legitimately wish to take advantage of those laws to acquire a new Citizenship for a variety of personal and/or professional reasons (including, in some cases, in order to secure better opportunities to compete at international level in the sport)”.
The rule state further that “Representative Competitions cannot be determined solely by reference to Citizenship, because: some Countries permit dual Citizenship, whereas an Athlete may only represent one Country or Territory in National Representative Competitions”;
R 1.3.3 states “Countries have accelerated naturalisation processes enabling rapid acquisition of Citizenship in certain circumstances, where that is considered to be in the best national interests of the Country in question, but without taking into account any of the sporting imperatives identified above”.
R 1.4 states “Therefore, the Council has issued Eligibility Rules to determine (a) an Athlete's eligibility to compete on behalf of a Member in National Representative Competitions; and (b) the circumstances in which an Athlete who has represented one Member in National Representative Competition may then transfer allegiance to another Member. Eligibility Rules use Citizenship as the starting-point in each case, and add further conditions only to the extent necessary to protect/advance the sporting imperatives identified above”.
R 1.5.1 addresses the practical implementation of the Eligibility Rules.
R 1.5.4 states these rules apply universally and in each member federation of the WFA and to ensure “these Regulations are to be interpreted and applied not by reference to laws peculiar to particular nations or regions, but rather as an independent and autonomous text, based on laws of general application, and in a manner that protects and advances the imperatives identified above”.
The same clause states further that the rules create a “process for the monitoring and approval of declarations of eligibility and transfers of allegiance that is designed to ensure the orderly enforcement of the Eligibility Rules in accordance with the objectives stated above, and to prevent manipulation and abuse”.
The present environment for athletic is that it is very competitive and there is a global audience for track and field sports events. This provides the incentive for countries which have not traditionally excelled at these sports to purchase talent and to domesticate the human resource as inclusive of their country's representation on the international stage. In the course of the various citizenship requirements and the legal permutations in this framework the issue is how genuine is the affiliation of the transferred sportsmen.
The road map of this paper is as follows: Part A considers the Genuine link doctrine, and how where it is lacking the grounds upon which the athletes have been naturalised in the states where they have migrated and given citizenship, Part B considers the issue of less restrictions in attainment of citizenship for developing countries to be able to field teams that will elevate the country's performance and the original laws of citizenship under customary international law, and Part C argues that, concurrently, there should also be more training and induction for athletes in their home countries to prevent the drain on the human resources in the countries of origin in order to strictly control the merchandising of nationality and to prevent human trafficking.
1- Absence of the Genuine link doctrine
The citizenship laws originate in various forms in different states and the legal citizenship can be either acquired through various means and processes. It can be achieved by the parental affiliations, or through birth right in the country or a fusion of the two. The concept of Jus sanguinis strengthens the country’s connection to its external population (emigrants), while jus soli weaken the ties to the land of destination. The citizenship law is deemed inclusive if it can facilitate the integration of outsiders by a process that is accessible for newly arrived immigrants.
The citizenship requirement can be distinguished by environment such as that of “ethnic and religious diversity, citizenship laws are important to understand which groups are integrated in society, and which are not. In other words, by regulating the “inclusion or exclusion of exiting populations of newcomers, citizenship laws are a valuable tool for inclusive growth. They can have deep-seated consequences on labor markets, welfare programs, and institutions in each country”.
The status attained of citizenship is related to the nationality laws that determine who is legally entitled to membership of a country. There are two recognised categories of attributing membership that are discerned which are firstly, jus sanguinis: citizenship acquired through descent. The children born outside of German territory to German parents are eligible to German citizenship. The jus sanguinis citizenship laws has led to a large expatriate communities in Germany, where they have represented the nation of their destination in sport. The citizenship provided through jus sanguinis has an element of exclusion, in the sense that citizenship derives meaning, in part, by excluding non-citizens from basic rights and privileges. Citizenship is a powerful force to exclude persons, such as immigrants. In this sense, citizenship is not only about getting rights and entitlements, but it is a struggle to reject claims of entitlement for those residing outside the citizenry, such as migrants.
The second principle is the Jus soli which is citizenship acquired by birth in the territory which is the main example of employing this citizenship principle, as membership is automatically attributed to people born within the US and subject to its jurisdiction. This provides the basis for an “inclusive system,” which ensures that newly immigrants are integrated and can obtain citizenship without any formal waiting period. The availability of citizenship in the US is defined as “one factor that explaining the gradual (and successful) integration of foreigners into the country”.The jus soli citizenship links ‘a person with the state’ and gives people a universal identity—as a legal member of a nation, besides their identity based on ethnic ties”. There is an alternative definition of the principle jus nexi which is proposed as an alternative to birth right citizenship and those individuals who have a ‘real and effective link’ to the general polity of the state.
However, citizenship can also be acquired after birth or via naturalization. It has been co related that most athletes who transferred their nationality obtained citizenship via the principles of jus domicilii or matrimonii because they “did not acquire citizenship at birth, they managed to claim citizenship of their new countries because they were married to a native citizen and/or met the basic residency requirements for naturalization”. This is because apart from marriage, “the main reasons for becoming a citizen of their new countries were work (not necessarily related to sport), pursuing a study and having grown up there”.
The process of jus domicilii, enables citizenship can be granted to individuals ‘independently of the place and community of birth […] after they entered a territory and established residence in this territory’. This residence-based approach to membership applies to immigrants who have resided in their new countries for a minimum number of years. The residency requirements varies across countries and are generally combined with other conditions, such as language proficiency, income generation and integration.
The example exists of the Kenyan athlete Bernard Lagat, a talented middle- and long-distance runner born in Kenya who had represented Kenya in several international competitions including the 1998 World Championship. The process of domiciling in the US began in 1996 when Lagat was offered a scholarship to study at the Washington State University to pursue a career in athletics and attend a course on Management Information Systems. In 1998, Lagat received his green card which enabled him to be employed in 2004 and he officially became an American citizen and to stay permanently in the US. This eliminated the possibility of him representing Kenya which dis allowed dual citizenship and in the 2008, 2012 and 2016 Olympics, Lagat represented the US. He was assured of representing the country of his choice and stated that he gradually came to identify himself as a ‘real’ American:
There is a perspective among in theories of citizenship which is that in the global competition for skilled labourers, countries increasingly and selectively ease their immigration policies by, among other things, introducing fast-track admission procedures for highly skilled migrants, such as scientists, doctors, engineers and athletes.In a more advanced study it has been found that in the objective of inviting the world’s cream of potential successful individuals, more than a quarter of the world’s countries even go as far as developing cash-for-citizenship programmes, which make it possible to purchase passports.
In scholarship the citizenship has been defined as the process of inducting sportsmen with passports which has established the notion of ‘Olympic citizenship’ as a metaphorical and generic term for describing the ‘fast-paced race to recruit the world’s most creative and brightest’ through which countries aim to increase their competitiveness and promote their national programmes of sporting excellence.The proliferation of these policies points towards the ‘marketization of citizenship’ – i.e. the reconception of citizenship from ‘sacred’ bond to marketable ‘commodity’ which, it has been argued may undermine the ‘political ideal of a common enterprise committed to promoting equality, rights, and collective decision-making’.
The citizens of the EU have the privilege in terms of being able to exercise the rights to move and reside freely within the territory of the EU. The economic freedoms, such as the freedom of movement for workers, freedom of establishment and freedom to provide services provide EU citizens and undertakings, in a simplified way, with the right to leave their Member State of origin to enter the territory of another Member State and reside there freely in order to pursue an economic activity.
The definition of jus talenti refers specifically to the lex mercatoria where the transactions in which citizenship is traded for talent or money and is indicative of the marketization of citizenship obscures the complex interplay between structures of and practices within the Olympic field. The process of jus talenti, enables the grant of citizenship to immigrants who are willing to pay a significant amount of money or to those who hold particular skills that states conceive of as valuable.The practice of nationality transfers is forged by the “structural conditions of the Olympic field. First, a complex realm of citizenship laws and regulations produces conditions under which athletes make legitimate claims to citizenship. Second, through a mechanism of reverberative causation, prior migrations are often echoed in contemporary nationality swapping”.
It has been determined that the considered “logic behind nationality switches of Olympic athletes takes place within the complex realm of citizenship laws and nationality regulations” and that this estimation has been considered as applicable to citizenship granted at birth through the overarching concepts of “ jus soli, jus sanguinis, jus domicilii and jus matrimonii, ‘issues’ of multiple citizenship will inevitably arise from (increasing) population mobility”.
The WAF has acknowledged that athletes transfer to another country for monetary enrichment when they migrate from their native country, in order to represent another country in international competitions. In 2018 it transformed its rules and a ban on athletes switching to compete for other countries was been lifted with immediate effect, and it stipulated a 3 year waiting period before an athlete can compete for anther country having already represented their own country. This is a reflection of Rule 41-2 of the Olympic Committee. The OIC stated further that any athletes applying “must provide evidence that the country they want to represent has offered them full citizenship and associated rights”.
The consequence of being able to transfer nationality is that the elite athletes, particularly in Africa, can be merchandised to the highest bidding country. The citizenship requirements vary across the globe and the procedures for its conferral allows the track and field athlete to represent their adopted nation. The citizenship of an athlete at an international level is not dependent on the global link doctrine. It is a process of the election by athletes who are prima facie strategically motivated under specific structural conditions that lead to migration, career prospects, and the incentives offered by the adopting state. This is the basis of changing nationality and is integral to the marketization of citizenship that comes within the dynamics of the structures, practices and goals in international sport.
2- Contentious issues in determining nationality
The assumptions about the novelty and extent of nationality transfers in the context of various sports have been distinguished by the examination of the marketization of citizenship. These express a “systematic, historical and theoretical light on switching Olympic nationality”. The study findings state that an “increase in the number of athletes who switched Olympic nationality”, in the 2000s. This has caused the transfer of nationality factor into a debate as to the reasons why the merchandising of nationality has assumed such an important dimension in the study and evaluation of international sporting achievement.
The influx of athletes from the East African states and their incorporation into the sports teams of the Middle Eastern states is also because of the depth of middle and long distance running talent in Kenya and Ethiopia is so great. They can migrate to the Middle east countries and become the top tier athletes in the countries of their destination. The influx of athletes from Africa has also reached the Middle East and their have been recruitment of raw talent for the track and field competitions. The instances include the Turkish team that has excelled in the competitions since they began their induction of athletes from Africa. The 2016 European Athletics Championships in Amsterdam was the stage of several athletes who had made their “allegiance transfer” for Turkey which increased its medals tally by the contribution from seven Kenyans, two Jamaicans, one Ethiopian, one Cuban, one South African, one Azerbaijani and one Ukrainian.
The European Champion over the distance of 5,000m and 10,000m and gold medallist was Yasemin Can who competed for Turkey, despite her residence and training facilities being in the high altitude surface of Kenya. The two other Turkish golds were provided by Polat Kemboi Ankan, who won the men’s 10,000m title for the second time since switching from Kenya in 2011, The women's 5,000 and 10,000 metres titles were won by a 19-year-old Kenyan formerly known as Vivian Jemutai, who switched allegiance to Turkey and competed in the same year. The medals recipients for Turkey included Yasmani Copello Escobar, a Cuban who became eligible to run for Turkey in 2014 and earned victory in the men's 400m hurdles. It enabled Turkey to finish fourth in the overall medals table with four golds, five silvers and three bronzes.
In their study of the impact of naturalised athletes in the Turkish national teams the authors Elçin IstifInci, Cem Tinaz, and NefiseMeltem Turgutstate that the “absence of a ‘genuine’ link between the athlete and the State can make the representation controversial, sparking debates both nationally and internationally” and its impact may “ give rise to charges of opportunism and systemic exploitation as observed in the news excerpts”.The Turkish media has not given the foreign born athletes who have changed allegiances an uncritical welcome and the assimilation into the Turkish national teams has been a source of controversy.
The basis for the transfer of nationality is inherent in the Olympic Charter Framework Rule 6(1) of the Olympic Charter which states “[t]he Olympic Games are competitions between athletes in individual or team events and not between countries.” It accords with the notion that “this is the basis for the abiding aspiration to maximize opportunities for athletes in their individual interests and as role models while minimizing geopolitical interference in the sports arena”. There is also a perspective that the provision is “sometimes misinterpreted so as to question any functional participation of ‘countries’ in the organization of the Olympics. Such misinterpretation can lead to confusion about the national structure of the Olympic Movement”.
Furthermore, there is a core provision that underscores one of the five Fundamental Principles of Olympism: that “[the] practice of sport is a human right . . . without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play”. In contrast to the IOC rules, international human rights law takes “a different approach to nationality and the IOC rules are not in alignment with them. Every individual has a right to a nationality. This nationality is often the source of other rights, such as political participation, employment and education. For this reason, statelessness is largely prohibited. In addition, this right includes the right to change nationality. However, IOC limitations on recognizing changes do not respect this freedom and may work to discourage athletes from changing nationality, as is their right. The result is that athletes who do not satisfy nationality rules can be deemed de facto stateless”.
In Nottebohm (Liechtenstein v Guatemala) Liechtenstein filed legal proceedings against Guatemala in the International Court of Justice (ICJ), requesting the court declare Guatemala had violated international law “in arresting, detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his property.” It also requested the ICJ to order Guatemala to pay compensation as reparation because they had violated the property rights of its. In a second Judgment, of 6 April 1955, the Court held that Liechtenstein’s claim was inadmissible on grounds relating to Mr. Nottebohm’s nationality. It was the bond of nationality between a State and an individual which alone conferred upon the State the right to put forward an international claim on his behalf. Mr Nottebohm, who was then a German national, had settled in Guatemala in 1905 and continued to reside there.
The ICJ ruled “legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” The Court also stated “ In order to appraise its international effect, it is impossible to disregard the circumstances in which it was conferred, the serious character which attaches to it, the real and effective, and not merely the verbal preference of the individual seeking it for the country which grants it to him”.
Nottebohm’s nationality, however, was not based on any genuine prior link with Liechtenstein and the sole object of his naturalization was to enable him to acquire the status of a neutral national in time of war. For these reasons, Liechtenstein was not entitled to take up his case and put forward an international claim on his behalf against Guatemala. The Court ruled that it is “the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be internationally scrutinized if the question is of diplomatic protection”.
The ICJ upheld the principle of effective nationality (the Nottebohm principle): that the national must prove a meaningful connection to the state in question. The Court “resorted to an existing rule of customary international law to determine whether the legitimate exercise of national law by a state engraft obligations under international laws on another state to abusive nationality practices”.
It has to be asserted that based on the factors of the transmigration in sport the international sporting governing bodies have consequently started including in their regulations that not based on genuine link other requirements determining athletes’ eligibility for national teams. “[E]ach international federation and every organiser of multi-sports competition, including the IOC, have adopted their own rules regarding athletes’ [eligibility in national teams], each with their own aims of providing continuity for their competitions but also to avoid issues linked to mercenaries and athletes’ mobility”. The “new” conditions determining athletes’ country of representation relate typically to the place of birthor the place of residence.
There has been another element introduced in this framework which is that there is the “waiting period”, requiring from an athlete having changed his nationality to abstain for certain time from participation in international competitions in order to be eligible to represent his new country. The practice of international sporting governing bodies consisting in creating new elements of rules governing athletes’ eligibility for national teams led to the creation of “sporting nationality”.
The CAS recognized the notion of a sporting nationality in B. v. Fédération Internationale de Basketball (FIBA), when it stated that “ "[B.] has two nationalities by birth, Belgian and United States of America. It is obvious, that in a like situation, any athlete in whatever sport has to be put into one of two possible baskets because otherwise, he would be able to jump from one ‘athletic nationality’ to the other at his sole discretion.
Subsequently, CAS has consistently upheld this dualism when concluding that legal and sporting nationalities may differ. Therefore, an athlete can be legally a national of a certain country but not be eligible to represent that country at international level. This also implies that an athlete does not have to be a national of a country but can still be eligible to represent it in international sporting events. It has defined the sporting nationality as a “concept of international sporting governing bodies as private entities, differs from a public law concept of legal nationality, which concerns rather the personal status deriving from citizenship of one or more states”.
The CAS as the adjudicating body in sport arbitration has tried to strike a balance between the prevention of nationality shopping and the need to avoid excessive severity and hardship. In Bajrami & AFA v. FIFA & SFA the ruling stated that the new FIFA Eligibility Rules seek to achieve a median between the award (i) clarifies the difference between nationality and citizenship for the purposes of change of association requests; (ii) recognizes that the objective of the 2020 version of the FIFA Rules Governing Eligibility to Play for Representative Teams (“Eligibility Rules”) is to prevent nationality shopping while avoiding hardship and rigidity; and (iii) confirms that the non-fulfilment of mere administrative formalities related to the acquisition of legal nationality does not deprive a player of the ability to acquire a given sporting nationality.
The panel ruled that, while Article 5.1 of the Eligibility Rules entitles players “holding” a country’s “permanent nationality” to compete for that country’s representative team, at the time of his first cap for Switzerland at the “non-A-level”, the Player did not actually “hold” the Albanian nationality. The Judge made the distinction between a newly-introduced distinction between “holding” and being “entitled to obtain” a nationality, reflected in the section of the Commentary pertaining to Article 5.2 of the Eligibility Rules. The section provides that a player is deemed to “hold” a given nationality where the same has been obtained “automatically” without there being a need to fulfil “further administrative requirements”.
The Judge applied the Law 113/2020 on Citizenship, through which the Player had acquired Albanian nationality, indeed imposed such requirements, obliging those wishing to obtain nationality by descendance to (i) submit an application to the relevant authorities; (ii) demonstrate that they do not pose a threat to public order; and (iii) further demonstrate that they have not been convicted of a crime in relation to which Albanian law imposes a sentence of no less than three years of imprisonment.
The CAS panel first recalled that “sporting” nationality was a matter separate from that of “legal” nationality as determined by each state, and cited CAS 2007/A/1377, according to which sporting nationality is “largely” a “subjective matter”. The panel clarified, however, that nationality and citizenship are distinct concepts; citizenship is a legal status relating to “political rights”, whereas nationality has a “broader content” that corresponds to the “natural background” and “peculiar cultural heritage” of an individual. In support of this understanding, the CAS panel cited the Nottebohm Judgment, in which the International Court of Justice relied on factors such as the “social fact of attachment” and “genuine connection of existence, interests and sentiments” in defining nationality
The grant of citizenship reflects the political rights whereas nationality is concerned with a more genuine connection with a given country. The right to represent a national association is granted due to a player’s nationality, while formalities related to citizenship are not formal requirement. There is a balance that needs to be achieved with the need to avoid cases of abuse/ nationality shopping and the possibility of excessive severity, which the new FIFA Eligibility Rules were formulated to achieve. The quasi-precedential nature of CAS awards implies that the substance-over-form” approach may be the relevant process by which the potential decisions of the WAF infringements may be appealed for CAS adjudication.
The question of citizenship has to be integrated with the leading role assigned to removing discrimination by the OIC and where discrimination may exist on the grounds of nationality. The athletes compete as part of a national team and this requires sporting associations such as the IOC to develop nationality rules. The Olympic Charter permits changing nationality, but places restrictions on the ability to compete for the new national team and the individual cannot compete for the previous national team because nationality is forfeited and cannot compete for the new team because the new nationality has not yet been recognised.
3- Creating infrastructure for home grown talent
The existence of the colonial tie is a significant factor in the manner in which athletes have been drawn from the developing countries to the original occupier of their countries. The foreign-born Olympians in the first decades of the 20th century often had a European background or colonial nexus with the country they represented. This is because “Europe used to be the primary source of emigration in the nineteenth and the beginning of the twentieth century but transformed into a site of immigration in the last decades of the twentieth century and the early twentieth-first century”. The studies have found that the contemporary Olympic migration has become much less European, less colonial and more diverse, as foreign Olympic athletes are now born in a wide array of countries. This has not changed the paternal colonial and subject tie because of the inducements offered by the European countries and the athletes who are born in West or sub Saharan Africa are more likely to move to France, whereas immigrant athletes from Cuba are more likely to represent the United States or Spain.
The national sports of France has often been represented by talented athletes who had also competed for its former colonies (e.g. Senegal and Cameroon) and this includes in track and field events. Initially, the athletes from the developing countries went to France for better training facilities and financial support because France wanted to benefit from potential of African athletes. The French colonists chose Franco African sports cooperation run by the Ministry of Foreign Affairs in order to draw African youths into programmes in metropolitan France. Some had received scholarships (funded by a joint initiative of the WAF, the Olympic solidarity commission, and the French Ministry of Foreign Affairs), which enabled them to move to France at a young age. These are instances of an expression of the “mechanism of ‘reverberative causation’, which reverses prior migration flows, making athletes more inclined to migrate and settle in a country where previous generations have accepted the same destination” turning around to follow the accepted route to success.
The other movement path primarily is more transactional, where athletes are provided financial incentives to move. The “Nigerian-born athletes who were competing for other countries than Nigeria because of the poor incentives, non-payment, and lack of training facilities in that country”. The impact on the developing countries has been measured by the study conducted by Oonk and Schulting who have examined the IAAF (WAF) dataset of nationality transfers and found that 254 out of 695 (36.5%) transfers of allegiances between 1998 and 2016 were African athletes who transferred to non-African countries. A total of 96 cases (13.8%) involved the countries of Turkey, Qatar, or Bahrain. They offer two interrelated explanations for the dominance of African athletes: (1) more lucrative financial reimbursement schemes and (2) excellent sports facilities, as appealing incentives for African athletes to relocate to the Middle East.
The fulfilment from acquiring medals in international competitions has been identified as a key driver to track and field success and is still considered as one of the strongest indicators of Olympic success, particularly given its links to the ancient mythology and history of the Olympics. It is this “almost mythic power which provides a strong enabler to the work of the WAF, and, at the same time, a justification for its assertion that cultural change can be forced upon the Third World”. The obstacle to this is fact that the environment requires development, particularly in changing localised cultures to be more receptive to athletics and the sporting achievement that it represents.
The WAF development of an infrastructure in Third World countries is at present insufficiently knowledgeable to reverse this process and support the access for all sections of the population rather than a creamy layer of athletes at the top of a pyramid. The WAF as the governing body for international track and field athletics has appointed the International Athletics Federation that has sponsored almost 400 projects, until 2021 investing more than 35 million dollars in the promotion and the development of athletics worldwide.
The WAF has created the framework for the “World Athletics Development Programme that has evolved from a centralised to a decentralised concept. The Area Associations (AA) were considered best placed to determine development policy in their respective regions and they are responsible for “coordinating development activities in a strategic way, by considering the most cost-efficient solutions for the region and by ultimately achieving tailor made solutions for the Member Federations”. It has been argued that at the grassroots level in less developed environments the AA need to “ to coordinate all efforts within an agreed strategic framework. This will allow World Athletics to set the right priorities, allocate resources effectively and make development measurable. The strategic framework must consist of consolidated Development Plans for all key players in development: Member Federations, Area Associations and World Athletics”.
The programmes that the WAF and prior to that the IAAF have implemented have drawn criticisms because these enhancements “are Eurocentric and the governing body is engaging in classic Western development rhetoric, epitomized by neo-liberal modernization theories of development. There are hidden clauses in this relational process which are defined as less worthy aims, including guaranteeing the supply of athletes to the West, the development and maintenance of associated television coverage of the sport, and the creation of spaces for transnational companies, through rights and sponsorship, to penetrate Third World markets.
The contemporary policy of WAF is that it has promoted a neo liberal model that is intended to construct a singular, culturally homogenized sport by imposing a western capitalist framework. This has created the environment for lex mercatoria to operate and the market principle of supply and demand to become predominant and the ethos from the amateur athlete to the transition to professionalism to be completed. This has caused the WAF to become a global financial corporation which is financed through sponsorship by large multi national corporations. The academics who have studied the impact of the WAF programmes to enable athletes to be competitive from the developing world have considered them inadequate to prevent the exodus of the top tier athletes to the developed world.
The top down measures that the WAF has taken to improve sports infrastructure prevents the percolation of the effects down to the population. The lack of trickledown means that as most countries lack the social, political, economic and cultural factors needed to take advantage of the flow-on effects of this type of aid funding. The neo colonial Eurocentric models for development do not achieve desired results of home grown sporting talent benefiting from the flow-on effects of the Western aid programmes and with this the economic factors in the context of the Third World.20 The top-down models of development should be replaced by grass-roots driven, small-scale projects and with the structural assistance geared for specific community needs.21
In order to prevent the poaching of talent by offering escalated rules for citizenship the WAF needs to create a level playing field and in order to be given citizenship where legal residence is a common requirement. The WAF needs to be a common threshold to provide citizenship status. At present a significant divergence exists regarding the duration needed to qualify for citizenship: in Qatar the required residency period is 25 years; the Netherlands, 5 years; and Argentina, just 2 years. The separate naturalisation rules make for unequal treatment of athletes in relation to representations which is enhanced further by the option for accelerated naturalisation when an athlete is being granted special citizenship. In the Netherlands the ‘topsporters regeling’ [elite sportspersons regulations] provide for an exception to the residency requirements when such accelerated naturalisation would serve a ‘Dutch cultural interest’. There have been a number of instances where such accelerated naturalisation has been used to facilitate national representation in sport.
The athletes from developing countries who aspire to world-class status have two choices to either migrate to the destinations in Europe or America as the only recourse to improving their performance and become successful as elite competitors or stay below par at the international level by billeting in their own country. This is because the only tangible developmental opportunities for athletes from the developing countries are not of an global standard and ‘involve athletes leaving their own countries to spend time overseas where facilities and coaching are available’. The approach for WAF is to make the process for achieving citizenship to be tightened and to have a common threshold for athletes and secondly to develop infrastructures to not implement the top-down development strategies but to encourage the more basic model where the pathways for pursuing the sport and encouraging participation, such as assisting the formation of local and regional athletics organizations, in the schools and local districts to promote track and field athletes.
Conclusion
The assumption that citizenship in sport can be merchandised as part of the commodity exchange is at variance with the ideals of the international Olympic movement which are embedded in the different sports that it oversees and which are integral to its existence as an transnational body. These are expressed in its proclamation that sporting prowess ‘blends the qualities of body, will and mind’ and that includes the ‘culture and education’ of athletes. It also proclaims the ‘life based on the joy of effort, the educational value of good example, social responsibility and respect for universal fundamental ethical principles’. In the process of sport transcending from amateur to professional to merchandising this ideal has been compromised by the lex mercatoria that has lingua franca of the trade in international athletes.
The second principle of Olympism is to place sport at the ‘service of the harmonious development of humankind’ which is commensurate with human dignity’. This notion is not sustainable when the lex sportiva is made contingent on the rules of supply and demand and athletes become a commodity in the market of sports interchange. The elasticity with which the OIC has applied Rule 41 -1 and 2 gives credence to the view that the national federations can relax the rules of the 3 year requirement before they are allowed to compete for another country by mutual agreement. This can easily lead to financial inducement and therefore corruption in the sporting environment.
The fifth principle of the Olympic movement aspires to political neutrality in order to foster the notion of a common ideal of sport and to eliminate discrimination. In this abstraction of a objective basis in which sport rises above nationalism it has been successful by relaxing the rule of citizenship. The athletes in track and field events participate as individuals and are more likely to transfer their affiliation to another country if they have an opportunity to compete in that sport internationally.
The continent of Africa is replete with talent in track and field and it is right and fair that they are allowed the opportunity to compete even if it means acquiring the citizenship of another country. By going abroad they will harness their talent and make it more competitive. This will also mean they will be able to earn their livelihoods once their career is over on track as athletes. The human resources will not be wasted and therefore the restraint should not be placed on them if they have acquired nationality by jus domicilii or lex matrimonii because in these two instances they even if they have not acquired citizenship at birth of the transferring state, they did so by marriage or by fulfilling the basic residency requirements to be naturalized.
The WAF regional development centres should co opt a legal framework with developing countries to establish projects so that athletes in third world countries can develop their skills at the grass roots level. This is necessary because then those potential athletes can be coached, trained and inducted into the national federation schemes for achieving a competitive level and prevent the need for them to abandon their countries of birth or domicile. These projects will be lead to equalisation of the competing standards and result in less market based transfers of transferring nationality in sport.
European Convention on Nationality 1997, art 2(a).
“International law has little to say about the citizenship practices of states and the terms on which states determine the broad areas of their membership”. Peter J. Spiro, The American Journal of International Law. Vol. 105, No. 4 (October 2011), pp. 694-746
International Olympic Committee, Olympic Charter (September, 2019), Charterhttps://stillmed.olympic.org/media/Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf#_ga=2.116199174.1624588582.1580586764-1069286010.1580586764
Ibid, Bye law 1& 2 to Rule 41, page 77
The World Swimming Federation FINA, does not apply a baseline 3 year rule. Qualification System – Games of the XXXII Olympiad –Tokyo 2020: International Swimming Federation (FINA), (March 19, 2018), https://www.fina.org/sites/default/files/general/final_-_2018-03-19_-_tokyo_2020_-_qualification_system_-_swimming_-_eng.pdf
World Athletics Transfer of Allegiance Regulations approved by Council on 13 July 2022 effective from 15 August 2022 3 file:///C:/Users/akhtark10/Downloads/C3.4%20-%20Transfer%20of%20Allegiance%20Regulation%20(3).pdf
Rich Perelman,LANE ONE: Track & field worlds draw 1.97 million average audience on NBC; excellent World Games close in Birmingham; LA28 dates fixed, World Athletes Championships Oregan, Sports Examiner,July 19, 202https://www.thesportsexaminer.com/lane-one-track-excellent-world-games-close-in-birmingham-la28-dates-fixed/
W. R Brubaker, “Immigration, Citizenship, and the Nation-State in France and Germany: A Comparative Historical Analysis.” International Sociology 5 (4)(1990) 379–407. Gerard –Rene de Groot, Sports and Unfair Competition via Nationality Law, Vol 13,2 (2006) Maastricht Journal of European and Comparative Law.
Joost Jansen, Gijsbert Oonk, Godfried Engbersen, Nationality swapping in the Olympic field: towards the marketization of citizenship? International Review of the Sociology of Sport, Vol 22 Issue 5 (2018) Pages 523-539
H Bauböck Jus Domicile : In Pursuit of a Citizenship of Equality and Social Justice, Journal of International Political Theory, Issue 1-2 (2012), p 93. 10.3366/jipt.2012.0038
A Shachar, Citizenship for Sale?” In The Oxford Handbook of Citizenship, edited by A. Shachar, R. Bauböck, I. Bloemraad, and M. Vink, (2017) 60–82. Oxford: Oxford University Press.
P.J Spiro, “The End of Olympic Nationality.” In Allegiance and Identity in a Globalised World, edited by F. Jenkins, M. Nolan, and K. Rubenstein, (2014).478–496. Cambridge University Press.
Eric Chemey and Mark Fahey, Oil-Rich Countries Are Importing Elite Athletes to Bump up National Medal Count, NBC news 17 October 2016, https://www.nbcnews.com/storyline/2016-rio-summer-olympics/oil-rich-countries-are-importing-elite-athletes-bump-national-medal-n632566
Duncan McKay, IAAF lift ban on athletes switching to compete for other countries, Inside the Games, 28 July 2018https://www.insidethegames.biz/articles/1068081/iaaf-lift-ban-on-athletes-switching-to-compete-for-other-countries
Mark Rowbottom, Hansen says European Athletics must “look closely” at impact of athletes who switch countries, Inside the Games, 12 September 2016
Stephen R. Wenn and Robert K. Barney, Oxford Handbook of Sport History, Robert Hedelman, Wayne Wilson, in New Globalisation and their discontents, Part IV, (2017)
J.K. Adjaye, ‘Reimagining Sports: African Athletes, Defection, and Ambiguous Citizenship’, Africa Today 57, no. 2 (2010): 34.
Gijsbert Oonk and Jorn Schulting, ‘Nationality Swapping in the Olympic Field. Cases and Contexts from the Middle East 1998–2016’, in Routledge Handbook on Sport in the Middle East, ed. D. Reiche (London: Routledge, 2022), 344–54.
Veerle De Bosscher, Bruno Heyndels, Paul De Knop, Maarten van Bottenburg and Simon Shibli, The paradox of measuring success of nations in elite sport Belgian Journal of Geography, Issue 2 (2008) p. 217-234, https://doi.org/10.4000/belgeo.10303
James Connor & Melissa McEwen, International development or white man's burden? The IAAF's Regional Development Centres and regional sporting assistance, Sport in Society, 14:6, (2011) 805-817 To link to this article: http://dx.doi.org/10.1080/17430437.2011.587295
Decentralised Development Cooperation, World athletics, https://worldathletics.org/development/vision
Qatari Nationality Law No. 38 2005, art 2.
Netherlands Nationality Act 2003, art 8(1).
Const 20, Arg 2(1), 6, Decreto (3213/84) 3-8.
Netherlands Nationality Act 2003, art 10.