The realm of sports which is cherished by many is unfortunately clouded and harbored by an environment where the young and vulnerable athletes often face various of forms of abuse, notably sexual abuse. Studies suggest that a substantial percentage, ranging from 2% to 20% endure sexual harassment or abuse within the sporting context.[1]

There are numerous factors that are intrinsic to sports that contribute to the vulnerability of these groups. These include elements such as the presence of authoritarian structures, close interpersonal relationships between coaches and athletes, evident power differentials, and the perpetuation of secrecy.[2]

Concerns surrounding sexual abuse prevail, raising significant challenges for safeguarding the well-being of athletes. Acknowledging and understanding the risk factors is inherent and paramount to devising effective preventive strategies and protective measures, checks and balances.

Briefly outlined are key risk factors contributing to the vulnerability of athletes to sexual abuse, including normative and constitutive risks, contextual factors, and the profound consequences of such abuse. The obstacles encountered in implementing preventive measures and managing cases of sexual abuse within sporting organizations.

By comprehensively examining these issues, stakeholders can work towards fostering safer sporting environments and prioritizing the protection of athletes from harm.

a)     Normative risk factors comprise of autocratic authority systems, intimate relationships between coaches and athletes, conspicuous power imbalances, and the maintenance of secrecy.

b)    Constitutive risks involve hierarchical status systems, performance-driven rewards, which may be contingent upon compliance with authority, and systems lacking formal procedures for staff screening, hiring, and oversight.

c)     Locations such as international or international competitions and scenarios like massages administered by coaches, medical procedures and check-ups by team doctors and physicians and /or other authoritative figures, as well as instances of seclusion, heighten the risk.

Other common barriers that contribute in preventing individuals from disclosing instances of abuse, include shame, guilt, fear of not being believed. Building a support system and creating safe spaces where individuals feel comfortable disclosing their experiences without fear judgement or disbelief is crucial in addressing this issue and providing survivors with the help and support they need.[3]

What happens when authority figures fail to respond appropriately to disclosures of sexual abuse. When institutions create environments where predators can flourish unafraid and unabated. When these figures refuse to listen, put friendships in front of the truth, fail to create or enforce proper policy and fail to hold enablers accountable.[4]

Sexual abuse within sports organizations is a pressing issue, that stems from institutional cultures that ignore, deny, or tacitly accept abusive behaviors. [5] It involves sexualized verbal, non-verbal or physical behavior, whether intended or unintended and often involves the process of grooming.[6] Such conduct takes place over a long period of time where the abusers often find ways to make themselves seem trustworthy and authoritative, putting them in positions of control.[7]

Institutions ought to urgently address such a pervasive issue through proactive measures. Perpetrators, often managers, fellow players or coaches, exploit their positions to prey on vulnerable athletes, while organizations turn a blind eye prioritizing their own reputations and image over the safety of the athletes.[8] Clear reporting procedures such as the British Football Association’s ‘Tell Us, We’ll Tackle It’ campaign, is an succinct example of a sporting organization that emphasizes its commitments to the athletes by encouraging reporting of sexual abuse incidents. [9]

Joanna Maranhao, a Brazilian Olympic Swimmer is but one example of long-term sexual abuse that went unreported, where she was abused from the age of nine years old severely and systematically by her swimming coach. [10] Her case, after having the courage to speak out changed the trajectory of Brazil’s judicial system. Previously, victims had a limited window to seek legal action. The judicial system gave victims sixteen years to initiate legal action against their abuser, but once they turned eighteen, if they had not already spoken out, they were given only six months to take legal action. Now thanks to her courage, after a victim turns eighteen, they have twenty years to take legal action against the perpetrator.[11]

Activist athletes that speak out against sexual abuse risk facing severe retaliation, including career sabotage, threats, intimidating messages and even lawsuits from their abusers.[12] Therefore, ensuring confidentiality and whistleblower protections is crucial to fostering a culture of transparency and encouraging individuals to report abuse without fear.  

While legislation exists in various jurisdictions, these protections often come into play post-hoc, that is after the victim has experienced retaliation. Only then can they seek recourse in court or legal forums. [13]  Maintaining confidentiality of the reporting persons is essential for effective reporting mechanisms. Limitations may exist as to what sports organizations can do to maintain confidentiality, however, good reporting mechanisms ought to be aware of such limitations and communicate them to the reporting bodies. Properly established reporting mechanisms only disclose details relating to the identity of the reporting person, witnesses and alleges wrong doers on a strict need-to- know basis.[14]

Sexual abuse incidents in sports are not isolated to a few individuals, they are systemic issues that demand institutional-level solutions, addressing flaws such as lack expertise in decision-making bodies, insufficient resources, intention, and willingness as well as lack of gender perspective. [15] The widespread nature of sexual abuse is evident in cases like the Larry Nassar scandal in gymnastics where hundreds of girls were abused from the year 1990. He was thereafter sentenced to 40 to 175 years’ imprisonment in 2018. [16]

Responsible sports organizations have a duty to develop and implement clear and effective remedies for all forms of abuse and violence against athletes under their care. A human rights-based, trauma-informed approach to investigations and proceedings is essential, providing support, empowerment and minimizing re-traumatization for survivors.[17] Involving victims in the development of support systems can greatly enhance their effectiveness.

Initiatives such as the U.S. Center for SafeSport’s disciplinary database plays a crucial role in keeping the public informed about investigations and sanctions related to misconduct in Olympic or Paralympic movements, serving to protect the broader community and ensure accountability within sports organizations.  [18]

Addressing sexual abuse in sports organizations demands a collective effort from everyone involved in the sports community.  It requires a multifaceted and proactive approach that draws from successful examples and learns from past mistakes.

The repercussions of sexual abuse are grave and may include depression, psychological distress, diminished self-esteem, substance abuse, dissociative identity disorder, severe post-traumatic stress disorder (PTSD) symptoms, and even psychopathy disorders.[19]

Implementing preventive measures poses challenges due to various hinderances. Concerns often revolve around the fear that such measures may unveil pre-existing issues within the organization. Additionally, there may be a lack of leadership, competence, and resources, insufficient training and awareness-building initiatives, ambiguous boundaries or a lack of rules, and inadequacies in managing cases of sexual abuse.

By fostering a culture of dignity, respect and safety, sports organizations can create lasting change. This entails a comprehensive commitment to prevention, reporting, investigation, and cultural transformation. Only through such commitment can sports organizations truly become safe and inclusive spaces for athletes, free from sexual abuse.

BIBLIOGRAPHY

Department of Justice, ‘Investigation and Review of the Federal Bureau of Investigation’s Handling of Allegations of Sexual Abuse by Former USA Gymnastics Physician Lawrence Gerard Nassar,’ 2021

Hall Law, ‘A Comprehensive Investigation of Sexual Abuse in Youth Sports,’ 2022

Leao G, ‘An Interview with Sexual Assault Survivor and Olympic Swimmer Joanna Maranhao,’ 2018

Mountjoy M Brackenridge C et al, ‘The IOC Consensus Statement: Harassment and Abuse (Non-Accidental Violence) in Sport,’ 2016

 Ofasi K, ‘Grooming & Whistleblowing – How to Tackle Sexual Abuse in Sport,’ 2022

Play the Game, ‘Sports Organizations Are Bad at Handling Sexual Abuse, and Athletes Risk Retaliation for Speaking Out,’ 2024

The FA, ‘Kick it Out and The FA Launch Grassroots Action Plan to Tackle Discrimination,’ 2023

United Nations Office on Drugs and Crime and International Olympic Committee, ‘Reporting Mechanisms in Sport: A Practical Guide for Development and Implementation,’ 2019

In 2016, little known David Emong a 26-year-old Ugandan Paralympian was motion paper discussion in the in the Parliament of Uganda[1] wherein a motion was moved by Kioga County Member of Parliament Mr. Anthony Okello Moving parliament to pay tribute to David Emong for wining a Silver Medal the Rio 26 Paralympics in Brazil, the motion was supported and among other resolutions that were;

NOW, THEREFORE, be it resolved that:

1.    .......

2.    ……..

3.       The President’s directive to support medallists with financial support should be regularly implemented;

4.       ………

From the foregoing it can be inferred that the Government of Uganda’s commitment to support and enhance athlete welfare has been ongoing for years. The question however, regarding athlete welfare management is a challenging one. As to whether it should be addressed by the athlete himself, his/her management team, or a be approached from wholistic national perspective still remains tricky.

Many athletes who rise from the amateur (open) or national team duty to international stardom have experienced a tidal rise and fall sequence making them grapple with life in their later years of life. This is not only a Ugandan case – the Mike Tyson bankruptcy story must still be ringing a bell in the readers’ mind. At the international level, you would expect excellent management, lifelong investments, astounding financial literacy, management and advisory.

Veteran sports men have had a sad ending to their sports careers some turning into ‘hand to mouth’ survivors and alcoholics at the extreme. These include previously excelling professional football players, boxers and Olympians, Commonwealth Games and other major tournament victors in different sports categories.

The government of Uganda has over the years tried to have in place different schemes to recognize the athletes that have raised Uganda’s flag at the international arena including but not limited to having monumental iconic establishments like the controversial Akii Bua Stadium in recognition of the late John Akii Bua’s athletics Olympic Gold Medal[2] (Uganda’s first Olympics ‘Gold Medal’, but not the first Medal as largely publicized). Government has also taken a shot at constructing houses, providing vehicles and cash handouts to athletes like Joshua Cheptegei (Olympic 5000M Gold Medalist and three-time 10,000M world Athletics Champion), Dorcus Inzikuru (Helsinki, World Athletics Steeplechase Gold medalist & Commonwealth 300m steeplechase champion) among others.

In July 2021, the National Council of Sports (NSC) General Secretary, Dr. Bernard Ogwel announced that there was to be a scheme to reward athletes who excel in different disciplines under the National Council of Sports vote/budget[3] this, he emphasized was not only about money but ensuring sustainable welfare of the athletes. Consequently, guidelines for the establishment of the National Sports Persons Reward and Recognition Scheme were drafted and submitted to the Minister of Sports along with a list of athletes that have excelled in different sports overtime (past and present) for further guidance by the Minister[4]. Following the same, several medalists were rewarded for their exceptional performance by the President of Uganda on 30^th September 2022 at the 11^th National Sports Forum organized by National Council of Sports[5]

In 2023, the National Recognition and Reward Scheme was enshrined in the National Sports Act, 2023. The long title to the Act provides that the objective of the Act is to provide for the National Recognition and Reward Scheme and section 5 of the Act paraphrased provides thus:

“There is established, the National Recognition and Reward Scheme which shall be a scheme of Government to recognise and award outstanding and deserving sports personalities who bring honour to Uganda”

Under the scheme, the Minister may, by statutory instrument, prescribe the awards, including monetary payments, pension and gratuity that may be awarded to the sports personalities[6].The spirit and objective has clearly been set out – to enhance athlete’s welfare.

The Act also creates more avenues for protection and enhancement of athlete’s welfare by way of upholding their commercially viable rights including and not limited to their image rights which position has been emphasized by the recent landmark court decision on player image rights in Proline Soccer Academy Limited versus MTN Uganda Limited and Others[7] that has clearly discussed the socio-economic implication of player-image rights which can be a great source of income if properly propagated, and legally exploited by both the athletes and their respective clubs and sports federations/associations.

The establishment of the National Anti-Doping Agency[8] is another way of ensuring that athletes maintain a clean sports career pathway unfettered by doping sanctions and equally strengthened by non-abuse of prohibited substances.

Athlete’s will further enjoy benefits from commercial rights owned by their respective associations[9] this, similar to the holding in the Proline v MTN case supra, is one of the avenues that athletes can jointly benefit from, with their sports federations, it should be noted that Broadcast and media rights sponsorship ins on the rise as several media houses are increasingly picking interest in sports content.

The Act also seeks to streamline and regulate sports agency and academies[10] the different sports federations and National Council of Sports shall act as a watchdog over the sports agents, to ensure non-exploitation of athletes more so those who wish to turn professional. The Law however, unlike the FIFA Solidarity benefits[11] does not stipulate any percentage gains that would accrue to a given sportsman, agent or club but seeks to ensure that player-agent contracts are not exploitative of the athletes. Be that as it may, this will go a long way in ensuring that sportsmen achieve the best out of their brow.

To this extent, it is imperative to note that the establishment and inclusion of the National Rewards Scheme in the National Sports Act 2023 along with other provisions for protection of athlete welfare is a move in the right direction towards inspiring and nurturing more and better talent for the country.

The implementation of these provisions currently lies largely with National Counsel of Sports and the Ministry of Education and sports as also pointed out about, several athletes are already beneficiaries of the scheme the much as the impact on their well being may not easily be assessed, the law as it stands is one that upholds the long-standing question on protecting and enhancing athlete’s welfare and development in Uganda.

Sport Dispute Resolution Bodies are not often identified as human rights courts.[1] They have predominantly focused on interpreting the regulations set forth by international and national sport governing bodies (SGBs). 

The Court of Arbitration for Sport (CAS), as the international entity that settles disputes related to sport, has recently embraced an intersection between sports law jurisprudence and human rights.  As it is established in Switzerland and operates as per Swiss Law,  the Swiss Federal Tribunal (SFT) has been found to have appellate jurisdiction over CAS awards on the basis of Swiss public policy.[2] This unique legal nexus provides entry for the consideration of the European Convention on Human Rights (ECHR) in sports disputes such as doping.

The question of the applicability of the ECHR on private bodies, therefore arises. The ECHR, being an international treaty to which states are parties, is not inherently designed for direct application between private parties but rather for public decisions. Even as SGBs are portrayed as governing bodies, they are usually constituted as private associations.  Their private nature raises the fundamental question of whether their decisions can at all be subjected to a review under the ECHR.[3]

On one front, CAS awards have staunchly denied the direct or indirect applicability of the ECHR. The SFT in the Abel Xavier doping case, asserted  that the appellant was not the subject of a measure taken by the State and as such rendering the ECHR provisions, as a matter of principle, inapplicable.[4] Procedural fundamental rights protect citizens against violations of such rights by the State and not to legal relationships between private entities such as sports associations and their members. [5]

Proponents of this stance propose that CAS would need to be institutionally reformed in order for human rights to effectively scrutinize the transnational power of SGBs in CAS proceedings.[6]

In opposition, there has been growing recognition of the indirect applicability of the ECHR in CAS panels. Instances where CAS awards make explicit references to the ECHR, decisions of the European Court of Human Rights (ECtHR) are invoked and referenced in CAS jurisprudence or appellants partially succeed in challenging SGB decisions based on the ECHR, indicate a shifting landscape.[7] The CAS anti-doping division has  adhered to the view that they need to engage with the ECHR, even as they deal exclusively with private parties. [8]  Their rationale lies in adhering to Swiss public policy,  which encompasses the ECHR.

The pivotal Mutu and Pechstein decision by the ECtHR on sanctions imposed for doping unequivocally established that bodies such as CAS do not evade scrutiny by the ECtHR and are subject to the application of the ECHR.[9] This landmark decision  cemented the ECHR’s influence on the grounds of Swiss public policy, specifically affirming a  violation of the right to a fair trial as per Article 6 (1) of the Convention.

In a recent doping-related case, a disciplinary procedure was opened against a Russian athlete due to  irregularities reporting a prohibited substance found in her sample.[10]  Following a four-year suspension by CAS in 2022, the CAS panel, upon appeal, altered the starting point as the applicant directly invoked a violation of Article 13 of the ECHR, the right to an effective remedy.[11]  The article places an obligation on the States to prioritize human rights within their own legal systems, offering an additional guarantee for  individuals to ensure they effective enjoyment of their rights.[12] This was a deliberate attempt to directly invoke the provisions of the ECHR.

Moreover,  the battle against doping has been portrayed as intrinsically encroaching upon human rights, evident in the toll it takes on athletes’ privacy through whereabouts collection, the burden of proof imposed by disciplinary processes, and the invasive methods of urine and blood collection.[13] The interplay between doping and human rights materialized in the establishment of the Initial Human Rights Assessment (IHRA) by the World Anti-Doping Agency (WADA). The IHRA serves as a roadmap that guides WADA in fulfilling its human rights responsibilities as the global anti-doping agency.[14]

Whether indirectly or directly, the ECHR has progressively gained recognition by CAS panels as a relevant source for resolving disputes brought before them, thereby fostering judicial pluralism.  However, the active involvement of private actors in the implementation of the ECHR raises complex considerations. When the SFT or CAS applies the ECHR, its impact extends beyond the interests of the Swiss public. These decisions shape the lives of athletes globally, demonstrating a clear transnational dimension and effect. [15]

In conclusion, the intricate play between doping disputes and human rights, navigated within the framework of judicial pluralism, sheds light on a complex legal terrain. While CAS awards have historically resisted direct or indirect applicability of the ECHR, recent shifts indicate a growing acknowledgment of the ECHR's relevance.

As we navigate this evolving terrain, it becomes evident that the application of the ECHR by bodies like CAS extends far beyond national borders. The decisions rendered not only impact the interests of the Swiss public but also shape the transnational dimension of sports governance. In the realm of doping disputes and human rights, the evolving dynamics underscore the significance of judicial pluralism as a crucial mechanism for navigating the intricate intersections of sports law and fundamental human rights.

BIBLIOGRAPHY

1.   Abel Xavier and Everton FC v UEFA (2021)

2.   CAS Anti-Doping Division (2016) OG AD 16-011

3.   Duval A, ‘Lost in Translation? The European Convention on Human Rights at the Court of Arbitration for Sport’, The International Sports Law Journal (2022)

4.   Fédération Française de Natation (FFN) v. Ligue Européenne de Natation (LEN) (2010)

5.   Mavromati D,’European Convention of Human Rights Invoked Directly Before the Swiss Federal Tribunal in a Doping-Related Matter’ (2024)

6.   Mutu and Pechstein v. Switzerland, ECtHR (2018)

7.   WADA, ‘Human Rights and Anti-Doping Framework Proposal’ (2022)

Superior Court of Sports Justice or infractions committed against its members, by natural or legal persons mentioned in article 1, paragraph 1, of the Brazilian Sports Justice Code; declare its auditors to be prevented from serving.

The Disciplinary Committees are made up of 5 (five) members.

Sports Prosecutor's

 The Sports Justice Prosecutor's Office is designed to promote the liability of natural or who violate the provisions of the Brazilian Sports Justice Code, exercised by prosecutors appointed by the respective Court (Superior Court of Sports Justice or Court of Sports Justice), which is responsible for: offering a complaint, in the cases provided for by law or the Brazilian Sports Justice Code; to give na opinion in cases within the jurisdiction they are attached, in accordance with the functional attribution defined in internal regulations; formalize legal and procedural measures and accompanying them in their proceedings; requesting views of the file; file appeals in the cases provided for by law or the Brazilian Sports Justice Code or propose measures aimed at preserving the principles governing sports justice; request the opening of an investigation; carry out other attributions conferred on it by law, the Brazilian Sports Justice Code or internal regulations.

CHAPTER ONE

1. Introduction

1.1.Background

It is no secret that on the world sporting stage, the continent of Africa has more often than not, found itself on the outside looking in. Of Course, there have been flashes of brilliance from the incomparable Eliud Kichoge and the odd unforgettable moments like the Roger Milla dance at Italia 90, or the Ghana U-20 side beating Brazil to win the 2009 FIFA U-20 world cup; but that is all they are, flashes and moments. On the whole, sporting success has been sporadic and never sustained.

Let us take the example mentioned above of the Ghana national team. In 2009, the u-20 side won the world cup which was a first for an African country. At the 2010 FIFA world cup, the Ghana men’s senior side made it to the quarter final and narrowly missed out on the Semi-final in controversial circumstances against Uruguay. The future certainly looked promising. Finally, an African team able to compete with the rest of the world. What came next however tells a familiar story. The Ghana U-20 side failed to qualify for 3 of the next five U-20 world cups and The senior side did not fare any better; failing to make it out of the group stage at the 2014 world cup and missing out entirely on the 2018 FIFA world cup in Russia.

Contrast this with the situation at the German national team which also enjoyed success at youth level in 2009, when the U21 side won the UEFA U21 European championships.The Men’s senior team went on to win the 2014 FIFA world cup. This feat was made all the more impressive by the fact that five of the starting players in that world cup final in Brazil, had also started in the U21 UEFA European championship final  in 2009. How is it that Germany was able to use success at youth level to propel themselves to success at the senior level? Why was Ghana unable to do the same? How can African nations build this winning culture in football that many European and South American nations seem to have mastered?

1.2. Thesis

This paper answers the questions posed above by presenting the argument that Germany’s winning formula hinged on the strength of the country’s sports Legislation. That is to say that, wherever there has been enactment of sound laws governing sports and its development, success at national level has often followed. Invest in the law and success shall follow. This thesis seeks to provide African Football Federations with a blueprint for success, that is founded on a solid sports legislative framework; a model that has served the German Football Association well.

1.3. Structure

This paper is divided into three chapters. Chapter one, is the introduction which lays out the background to the problem and the proposed thesis. It also defines and explains what a winning culture is and its importance in the sports world. Chapter two reviews and critiques the sports Legislation  of three African countries; Rwanda, Kenya and Egypt,  while contrasting them with that of Germany, which will serve as the model country for the purpose of this study. It discusses the strategy adopted by Germany and showcases how they were able to reorganise and once again propel themselves to footballing success. Chapter Three, acknowledges other  factors that are contributing to the continued failure of African football.  Taking these factors into consideration, chapter three puts forward practical recommendations and a strategy for CAF and African national teams to follow, if they are to build a winning culture that is not only effective but also sustainable.

Finally, I hope to conclude this paper by showing the importance of having sound sports Legislation at the core of CAF’s and Africa’s plan to become a successful footballing continent.

1.4. Defining a winning culture?

“Winning culture” is a phrase that won’t be new to you. You’ve probably heard it during a passionate speech from a coach or player in the NBA while watching ESPN or you’ve heard it uttered by the CEO during your monthly company meetings. Regardless of the industry or sector, it seems that this phrase is a popular one.

The two words “winning” and “culture”, though different, have one big similarity. They are both born out of the human desire to be the best both at an individual level and as a collective. Winning is derived from the verb “to win” which is defined as being “the most successful in a competition” or “to succeed in coming first in a contest”. Culture on the other hand, has been defined differently by various scholars but the definition always seems to point to the concept of identity. For the purpose of this paper I will lean on the definition put forward by Miller M.R. (Miller, 2007) that culture is “ nothing more than collective values, ideas and experiences of a community”. She goes on to say that the more we understand a culture of a community the easier it will be to understand an individual (Miller, 2007). Culture provides some form of “predictability”. By combining both words, these coaches, players and CEOs are trying to find out what ideas and values they should rely on in order to make their success predictable. Essentially, they want their brand and identity to be synonymous with “success”. That is what a winning culture is.

So how exactly do we build this winning culture? When answering this question, the starting point is always the Mission. As Jack Welch puts it in his book, an effective mission helps a business to balance what is possible and impossible (Welch & Welch, 2005). Once you have your mission in place you’ll then be able to answer an even more important question which is “how do we intend to win?” (Welch & Welch, 2005). This is the first question that African football federations should be asking themselves in their quest to attain sustainable success and build a winning culture. Answering this question in turn resolves the issues on where to invest, who to partner with and what people to appoint as leaders of the sporting projects. More importantly, answering this question will help define the values of the African Football Federations and their respective sporting projects.

Some might believe that a winning culture is trying to succeed at all costs. The danger with that kind of thinking is that; not only is it short sighted but it is likely to lead to illegal behaviour such as corruption and fraud. There can be no winning culture if the leadership or the organisation is always willing to undermine its mission and forsake its Values at the prospect of short term gain.

If the goal for African football is long term success then the two key words to remember and live by should be “Mission” and “Values”. The mission indicates where we are going and the values describe the behaviours that will get us there (Welch & Welch, 2005). This is and should be the foundation of a Winning culture in African football and there is no better place to enshrine it than within our Sports Legislative frameworks. 

CHAPTER TWO

2. Literature review

2.1. The African Problem: Reviewing Sports Legislation across the African Continent

2.1.1. Rwanda

In January 2004, the Rwanda national team boarded a flight bound for Tunisia. They had qualified for the African cup of Nations (AFCON) for the very first time in their history. There was a genuine sense of hope and excitement for a nation that was still recovering and rebuilding itself. Unfortunately, they were not to make it to the knockout phase of the competition. This, however, did not shake the faith nor the ecstasy felt by the fans. The team returned to Rwanda to a hero's welcome awaiting them at the airport. The sentiment and perspective was a simple one, “this was only the beginning”. Sadly, this is a feat that has not since been replicated as qualification for major tournaments has continuously eluded the nation.

As part of a review into the failures of the National football team, the Ministry of Sports (MINISPORT) enacted the Rwanda Sports development policy in 2012 (MINISPORT, 2012). The mission of the policy was to pursue the attainment of a sports culture that promotes healthy living for Rwandans and ensures a winning culture for those undertaking professional sports. By doing so, the Rwanda Ministry of sports hoped that this policy would result in Rwanda being ranked in the top 10 in African football by 2020. This policy is supported by Law No.32/2017 governing organisation of Sport, Games and Leisure  (Rwanda, 2017) and the Rwanda sector strategic plan for sports and culture (MINISPORT, 2017). Additionally, the ministry of Education (MINEDUC) also enacted the Rwanda school Sports policy (MINEDUC, 2020), with the aim of improving participation of school students in sports across the country. These may be considered the primary sports Legislations in the country. So what impact has this Legislation had on the football sector in Rwanda?

We’ll focus on one of the central objectives from Rwanda Sports development policy (MINISPORT, 2012), which is the development of a framework that promotes identification of young sports talent and supports their development. The sector strategic plan (MINISPORT, 2017)  identified the absence of a link between the youth leagues and senior national team as a major contributor to the continued failures in Rwanda football.  The strategy to overcome this was, inter alia, to enter into partnerships with education institutions so as to create centres for excellence which would be used to develop talent, feed the national senior team and in turn lead to better performances. As of 2022, there are 18 talent development centres for 5 sporting disciplines including football which has all been made possible through partnerships. The PSG and visitRwanda partnership led to the creation of the PSG Academy opened in 2021. This partnership has already seen Rwanda u-13 team participate in and win the PSG academy world cup 2022. Similarly, the government of Rwanda has partnered with the Tony Football Excellence Program with the shared objective of investing in capacity building in sports, sports infrastructure and development of sports technology. 

FERWAFA, which is Rwanda's football governing body charged with overseeing and promoting the development of football in the country (Article 2, FERWAFA, Amategeko Shingiro, 2018) has also incorporated this objective of the policy (MINISPORT, 2020) into its regulations.  Article 11 of the FERWAFA club licensing rules, 2019 now provides that  investment in a youth development program shall be a prerequisite for all participating clubs to acquire a licence. Clubs are required to also have at least one qualified youth coach and a head of youth development with a CAF C licence (Article 11.1 club licensing rules, 2019). FERWAFA has also partnered with the Rwanda school sports Federation (RSSF) to promote football competitions in school, which is in line with the school sports policy (MINEDUC, 2020). This partnership has resulted in the successful hosting of the CAF school championships in 2022, which represents a positive step at an institution level. 

On the field of play, however, it appears that the Legislation is yet to lead to any tangible success especially at senior level. Rwanda’s current ranking (40th)  falls well short of the targeted “top ten” in African football. Similarly in club football, Rwandan teams have not been able to compete with the quality of foreign clubs when participating in competitions such as the CAF champions league. Based on this, there is an argument to be made that clearly sports Legislation does not impact the  footballing success of national teams. However, I believe this argument to be premature. The reality is that most of the relevant Legislation in Rwanda, has only been enacted in the last two (2) years which is certainly not enough time to conclusively determine the impact Legislation has had and will have on Rwanda football.

Success has also been hindered by the gaps in the Legislation that have been left unattended by FERWAFA and MINISPORT. As an example, Article 11.1 of the club licensing rules 2020 refers to regulations regarding football centres and academies “as provided by the ministry of sports”. However, these regulations are currently non-existent. FERWAFA should nonetheless be able to enact these regulations themselves without delegating this matter to the ministry. The prerogative is with them as the governing body of football in Rwanda. The problem, in Rwanda’s case, appears not to be the lack of Legislation, but rather the application and implementation of these laws by the relevant authorities.

2.1.2. Kenya

Kenya is a well known name in the world of sports; particularly famous for producing some of the most prolific track and field athletes in history. Sporting activities in the country are primarily governed by the Kenya Sports Act No.25 of 2013. This sports Act (Kenya, 2013) is one of the most comprehensive pieces of sports Legislation on the African Continent. The Act is unique in that it provides as much clarity as possible on how the development of sports in kenya is going to be handled. The first issue dealt with by the Act  was the creation of Sports Kenya which was tasked with overseeing the management of sports activities in the country (Kenya, 2013). One of sports Kenya’s most crucial roles is promoting coordinating and implementing grassroots sports programs in the country (Kenya, 2013). Section 3 of the Act also charges Sports Kenya with the duty to develop, manage and maintain sporting facilities as well as setting stadia standards. This has already led to the construction of Kirubia stadium which is one of the 7 stadium projects promised in the 2013-2017 jubilee manifesto. Projects such as these serve the purpose of decentralising the sport and making it more accessible to more people across the country which widens the talent pool and amplifies the talent identification process.To support these envisaged projects, Public finance management regulations (Kenya, 2018) established the sports, Arts and social development fund under regulation 3.

The standout provision of the Act (kenya, 2013), is section 55, which established the Sports Dispute Resolution Tribunal. Kenya, as a result of this provision, is one of a handful of African countries that have an independent dispute resolution tribunal for sports related matters. The importance of such tribunals cannot be overstated. Such structures provide some form of consistency and predictability which two traits are necessary in order to legitimise the sports legal order in any jurisdiction (Lindholm, 2019). In essence this predictability and consistency gives cause to the citizens, athletes and sports organisations to trust in the rules.

In football, the Sport Act is supported by the Kenya Football Federation(FKF) Rules and Regulations (FKF, 2019). The regulations provide clarity on how clubs qualify to be registered as members of the federation and how the league shall be governed. Regulation 9.6 is a stand out provision which thoroughly regulates the act of hooliganism and provides that if found guilty, the defaulting club may lose two points or be deemed to have forfeited the match depending on the circumstances. FKF regulations on media and commercial rights (FKF Rights, 2018) provide for the leagues’ right to negotiate centrally all commercial and broadcast rights on behalf of the clubs. Part VI also details what rights the clubs can exploit individually (FKF Rights, 2018). This is an important step taken by the FKF that is often forgotten by other member associations on the African continent.

There is no doubt that the Kenyan government has been very intentional and detailed in their sports Legislation and yet there are still a few key issues that have been left unattended especially in reference to football development. The FKF regulations make it a requirement for football Academies to register with the federation in order to be recognized. Appendix 1 of the regulations (FKF, 2019) provides how these academies will be classified and the requirements that will need to be fulfilled. There is no prerequisite however for these football academies to be operated by or be connected to the member clubs. The wording under regulations 6.3 and 8.1 implies that operating a youth side is optional for the clubs in the league. This setup is counterproductive to the football development goal in my view. A winning culture requires predictability and consistency and in footballing terms that means having a unified philosophy for Kenya football. There needs to be a clearly defined bridge for youth players to progress to the senior team.

The other criticism has to do with the power granted to the cabinet secretary under the sports Act ( Kenya 2013). Section 54 of the act allows the cabinet secretary to intervene and appoint a person or committee to manage the affairs of a sports organisation that has failed in its duties. The danger of having such a provision is evident from the recent ban from world football imposed upon FKF by FIFA which was a result of the government appointing a caretaker committee due to allegations of corruption within the federation. The usefulness of FIFA’s position on such matters is worth studying on its own but what is clear is that presently Kenyan football has suffered as a result of a provision within its own sports law.

2.1.3. Egypt

By February 2010, Egypt had won their third successive African cup of nations (AFCON) and become the most successful side in the tournament’s history. It seemed unimaginable that they would then go on to fail to qualify for the next three AFCON tournaments but that is exactly what happened. There is no doubting that Egyptian football was gravely affected and set back by the after effects of the Egyptian revolution of 2011. In recent years, Egyptian football has been able to make a recovery and become competitive again, making it to the final of the AFCON in two of the last three tournaments. At club level Egyptian teams have dominated the continental CAF champions league with Al Ahly holding the record for most titles won in the tournament. So what does the sports Legislative framework look like?

Egypt’s sports law no.17 of 2017 (Egypt, 2017) is the primary law governing sporting activities in the country. It covers a number of important issues ranging from structuring of sports bodies to investment in sports. Previously, sporting activities were regulated by a section in Law no.77 of 1975 governing Civil Associations (El Shentenawi et al., 2017). After 40 years, there was a need to address and modernise  Egypt’s sport law which is why the current law was passed in 2017. Under the current sports Law (Egypt, 2017) there is an implication that sports organisations such as sporting clubs are “quasi public entities' ' and entitled to various benefits as a result (El Shentenawi et al., 2017). As an example, Article 9 exempts these sports organisations from real estate taxes as well as customs charges and taxes on imported equipment needed for the practice of their activities (Egypt 2017). Such an arrangement allows sports organisations to use the retained income to invest in the development of their respective sports activities.

On the other hand where the entity incorporated for the purposes of setting up a sports club or providing other sports services is a private one then the benefits will not apply as per article 71 (Egypt, 2017). Additionally, under article 71 these companies are required to be incorporated as joint stock companies and may offer their shares for public subscription. The ministry of sports’ guidelines on the granting licences to sports services companies required the applicant companies to have issued capital of 250,000 Egyptian pounds if the licence is for one field of sports services and one million (1,000,000) Egyptian Pounds if in more than one field. The goal is to ensure that the issued capital is equal to or more than a third of project’s investment costs (Hakim, 2017) .  Both these provisions serve to improve financial stability and encourage continued investment into the Egyptian sports industry. Football Clubs have been able to amass enough revenue to open and invest in football academies outside of Egypt such as Al Ahly and Zamalek SC (Alaa, 2017).

The law also establishes a sports arbitration centre, similar to what was done in Kenya. Article 67 provides for how the centre acquires jurisdiction/competency with emphasis placed on having an arbitration clause in a contract. The disputes that may be handled by the centre are those arising from interpretation of the sports regulations and disputes arising from sporting contracts (Egypt, 2017).

There is much to like about the Egyptian sports law and I do commend the Ministry of youth and sports for promulgating and overseeing implementation of the law. However, just as in the cases of Rwanda and Kenya discussed above, there are still gaps that are hindering the progress and development of football in Egypt. Articles 63 to 65 of the law provide for the establishment of Talent discovery and development centres. The law neglects to provide any clear incentive for sports organisations to undertake to establish these talent centres and yet the onus is solely on these organisations (Egypt 2017). The law is relying on sports organisations that have no actual reason to invest in these talent development centres which undoubtedly defeats the purpose of the provision in the first place.

2.2.  Sports Legislation as a Catalyst for the Success of German Football

The German federal Sport policy is based on three principles; Autonomy of sport, subsidiarity of sport funding and cooperation with sport organisations. The successful practice and implementation of these three principles is made possible by the nature of German sports law; that is its “Dualism” (Krause & Vieweg, 2013). What this means is that, German sports organisations on one hand have the power to legislate their own sporting affairs and on the other hand, the Federal Republic along with the 16 “Bundesländers” or states both contribute to the overall regulation of sports law in Germany through various statutes (Krause & Vieweg, 2013). This dual nature of sports law aligns with the principle of autonomy of sport in as far as sports is able to regulate and govern itself to the highest extent possible. The principle of autonomy allows for a more informed and purposeful approach when it comes to enacting regulations to govern sports. The success that the German Football Association (DFB) has had through its regulations especially in relation to youth development is testament to how effective this principle of autonomy can be. The main aim of having the autonomy of sports Organisations to regulate their affairs is to ensure prompt and uniform resolution of past, present and future obstacles to the progress of Sports in the country.

When the curtain closed on the UEFA Euro 2000, Germany was reeling from another humiliating showing following their acrimonious exit at the hands of Croatia at the 1998 FIFA world cup. Lacklustre performances at back to back International tournaments was unacceptable. In the eyes of those that cared about German football, it was clear that something had to change. The solution was to change philosophy and make youth development the focal point of the DFB’s work to promote German football (Honigstein, 2015). From this point onward, every decision and regulation made by the DFB was geared towards making sure that this strategy to focus on Youth development yields the right results. The starting point was the establishment of the German football League (DFL) which was given financial and regulatory independence from the DFB in October, 2000 (Honigstein, 2015). The purpose of the DFL according to its Statutes, is to “operate the Bundesliga divisions 1 and 2 competition structures” and participate in the development of football in the Federal Republic of Germany. A dual regulatory system was adopted whereby the DFB would now mainly be responsible for football at the amateur level and professional German league football would be managed by the DFL (Krause & Vieweg, 2013).

The next step was to enshrine this proposed youth development strategy in the sports Legislation of the country. All clubs participating in the Bundesliga 1 and 2 divisions were required to build performance centres or football academies as per the DFL Liga statut. §3 no.2 of the DFL licensing regulations made it one of the sporting criteria that qualify a club to acquire a licence to participate in the Bundesliga(Satzung und Ordnungen, 2014). This provision was particularly helpful in quieting the Bundesliga 2 teams that were against the academy system due to the “high costs” (Honigstein, 2015). The incentive was clear, if you want to participate in league football, then invest in the development of German youth talent. Annex V of the Licensing regulation provides  detailed guidelines on how these youth performance centres are to be established and maintained. The clubs are allowed to develop unique content and methodology for their performance centres “so long as they do not deviate from the principles of the guidelines” (Satzung und Ordnungen, 2014). The reason for this is to ensure “harmonisation” of the DFB talent development projects across the country as stated in Guideline no.1 of Annex V. Guideline no.3 provides the structural conditions of the performance centres such as how many full time coaches the centres should have, the type of training licence, the number of training pitches and the requirements regarding medical care. The condition that stands out in  my view is  under Guideline no.3 (f) which discusses the requirement to have a written youth development program. It should contain an education programme for the prevention of gambling addiction and gambling manipulation especially at the U16-U23 level. Similarly, Guideline no.3 (h) requires the clubs to have cooperation agreements with schools to ensure that the sporting demands are coordinated with the school requirements for these young talents. These two guidelines show how much the DFB cares about the futures of these youth players and the extensive steps taken to ensure that youth talent development is not at the expense of their academic education. As Robin Dutt, the DFB sporting director puts it “ you need intelligent players on the pitch  anyway” (James, 2013).

These guidelines are further supported by the DFB Youth Regulations. § 5 of the youth regulations lists the permitted age groups for the youth teams which start as young as U 7 up to U 19/U 18. The regulations offer clear guidance on how matches and youth competitions should be handled at every age group. As an example, §8 provides that the maximum duration a match should last at the U 7 age group is two halves of twenty minutes or 2 X 20 minutes. Annex IV of the youth regulations  provides special regulations for games to be played on small and reduced pitches especially in the U 7 - U 9 age group. At this level you’ll have 2 v 2 games to ensure that all children get to work with the ball as early as possible. Arguably the most important introduction made by the youth regulations, however, was the establishment of the Junior national leagues where teams can be promoted and relegated in accordance with §19 and §20 respectively. This league system was deemed a necessity in order to build a winning mentality as early as possible while also providing a high level of training to the youth players (James, 2013).

The DFB’s youth development strategy did not stop solely at the scouting and identification of talent but also increasing the number of coaches. The importance of maintaining a high standard of coaching was recognized and promoted through the regulations. Guideline no. 3 (b) in Annex V of the Licensing regulations requires all talent development centre coaches to have the DFB Elite youth licence. This licence was created by the DFB in 2003 to ensure “a uniform level of competence” (Honigstein, 2015).

The DFL statutes also ensure that all this talent that is developed does not go to “waste” for lack of a better word. According to §5 no. 4 of the licensing regulations requires that all bundesliga 1 and 2 clubs undertake to have a minimum of “twelve licensed players of German nationality”. Effectively, having such a provision ensures that the clubs will actively seek to retain German youth talents but more importantly that as many young German players as possible are able to find a club at the top level. §5 also requires that the club employs a fan representative as part of the personnel and administrative criteria to obtain a licence. Fans have played an important part in ensuring that German talent is considered first.

The success of the DFB’s youth system and comprehensive Football Legal framework was no more evident than at the 2009 U 21 UEFA Euro championship where Germany was able to win the tournament for the first time in their history. It was this same youth team that went on to form the core of the 2014 FIFA world cup winning team 5 years later. Only one year prior to their world cup victory, the footballing world had already witnessed  the first UEFA champions league final with two German teams.  Both teams had German coaches at the helm and had fielded a combined total of 26 locally trained players eligible to play for the German National team throughout the course of the season (James, 2013).

What is clear from all these regulations and results that have followed, is that the “success of the German national team is at forefront” for everyone involved including the clubs themselves (James, 2013). This mindset has been Germany’s greatest asset and provides an important lesson in why their sports Legislation has yielded positive results.  The biggest take away for African countries from Germany’s approach is to first understand what needs to be regulated and who is best suited to do it? Once this question is answered, the proper implementation of sports Legislation is made easier and a clear pathway to success becomes apparent.

CHAPTER 3

3. Final Thoughts

3.1. Other contributing factors to the continued failure of African Football

The most consistent reason put forward for the failure of Football is the issue of Corruption. It always seems that a corruption scandal is never too far away when it comes to African teams. This can prove to be a distraction which is bound to affect performance and morale. Cameroon’s abysmal showing at the 2014 world cup was the perfect example of just how distracting corruption can be to the team. It is well documented that the national team had earlier refused to travel to the tournament over “unpaid allowances” (Chiweshe, 2014). This problem also affected team Kenya at the Rio olympics where Athletes were left stranded and funds were misappropriated by top officials who were later charged and convicted (sport, 2016). In my view, the focus shouldn’t be on corruption but rather the Governance structure of these sports organisations. We should be asking what part of our governance structure is breeding corrupt officials? You can only fix governance issues by having sound by-laws, policies and statutes. Afterall it is not the system that is corrupt but the people operating it

There is an argument to be made that Poverty is what is holding back the development of African football. My view on the issue of poverty is that if there are “enough funds” for officials to be corrupt, then there are certainly enough funds to invest in the development of the game. I do acknowledge however that the resources available to most African nations pale in comparison to their European counterparts. FIFA has always stepped in to aid football development through various projects as well as providing funding. The focus on our end should therefore be on how to make the most of these limited resources and use them to develop teams that have a desire and mentality to win. The end goal is competing on the pitch and not financially.

Finally, African football has been hindered by other competing sports. This can be a good thing, in that countries have more opportunities for success if they compete in various sports disciplines. The disadvantage, however, is that this significantly depletes the talent pool for football which in turn negatively affects the likelihood of success (Chiweshe, 2014).  The prevalent belief that it is better to move to a European academy rather than staying in their respective countries  has further diminished the talent pool. Studies show that a bigger talent pool leads to better performance by countries (Chiweshe, 2014). We should therefore rely on sports Legislation to ensure that the talent pools in our respective countries are expanded and protected.

3.2. Recommended Strategy for Success

German football is testament to how effective sports Legislation is in propelling a country to success. The other factors that are contributing to the failure of African football discussed above, such as corruption, are not unique to the African continent. The world football governing body, FIFA, has dealt with the numerous well documented issues of corruption (Conn, 2017). The DFB itself has also been implicated in a corruption scandal relating to the 2006 world cup hosted in Germany (Reuters, 2015). The recovery made by both Federations, the DFB especially, Is why I believe that reliance on sound sports Legislation is the right strategy for the African continent.

The first step is identifying what issues plaguing african football need to be regulated and who is best placed to oversee their regulation. It makes little sense to enact a sports statute or regulation governing Esports for example merely because it is “trendy” without first doing a study on how compatible the sport is with the country’s economy or how appealing it is to the citizens. The law should be enacted to enhance the growth of the sport and it can only do so once the factors hindering the growth are well known. This attention to detail only happens if the importance of the Law is understood. In Germany, the state objective of promotion of sports was designed to be executed by legislative means (Krause & Vieweg, 2013). The state understood the true value of the Law and that is why the strategy served them well.

The second step is adopting the principle of “autonomy of sports”. There should be as little government or state interference as possible in the regulation of football matters. Sport is more likely to develop where it enjoys a reasonable degree of autonomy. This is why when German football was becoming highly commercialised and clubs were taking a more corporate structure, the DFL was able to quickly create the “50+1” under §8 no.3 of its statutes. The rule was aimed at ensuring that the parent association of the club maintained majority voting rights ensuring that the commercial interests are not pursued at the expense of the association's footballing interests. Similarly, when DFL faced arguments that the “50+1” rule was hindering German football’s ability to compete financially, the regulation was amended to exclude investors who have been actively involved with the parent association for more than twenty years (Krause & Vieweg, 2013). The autonomy that DFB and DFL enjoy allowed them to properly and promptly address the issue through their respective statutes and they did so from an informed position. African states should afford football and sports in general a similar level of autonomy and recognize that this ability or mechanism to self regulate is what will prevent the abuse of power within  sports federations (Krause & Vieweg, 2013).

Finally, a certain level of selflessness will be needed for this strategy to work. There is a need for collaboration especially at continental level. There is no reason why Kenya and Rwanda cannot have a joint mega Football centre that is also used by the rest of the national teams in the East African region. Such collaboration through agreements backed by sports regulations would help create a unified football identity within East Africa; a region that performs poorly at the AFCON and from which no country has ever qualified for the FIFA world cup.The onus is on CAF as the governing body to create and promote a collaborative spirit within African football. The same spirit should be cultivated at national level by the Football federations. German football has greatly benefitted from the willingness of all concerned to support its development. Their mindset seems to almost be that the success of the national team requires the help of everyone.This is why giant German companies like Adidas and Mercedes are readily willing to support and invest in the national teams’ activities such as construction of a training facility (Cortsen, 2014). That is the level of selflessness and willingness to collaborate needed for African football to succeed.

3.3. Conclusion

From the findings presented by this paper, it is clear that while most African countries have understood the importance of having sports Legislation in place, they have not yet grasped how to use it to create a clear identity and pathway to success. How long it will take for success to become a constant in African football is hard to predict. What is predictable, however, is that Strengthening and relying on Sports Legislation will definitely lead to success on the field. The success enjoyed by the DFB and German football in recent years perfectly illustrates the correlation between sound sports Legislation and national team success. I can think of no greater motivation than that for African Football to follow suit. It is time for CAS and the Continent’s Football Federations to change course and our Sports Legislation is the only map that will guide us to our intended destination.

Bibliography

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Chiweshe, M. (2014). THE PROBLEM WITH AFRICAN FOOTBALL: CORRUPTION AND THE (UNDER)DEVELOPMENT OF THE GAME ON THE CONTINENT. AFRICAN SPORTS LAW AND BUSINESS BULLETIN, 2.

Conn, D. (2017, November 6). How the FBI won ‘the World Cup of fraud’ as Fifa scandal arrives in court. The Observer. https://www.theguardian.com/football/2017/nov/06/fifa-scandal-fbi-new-york-trial-chuck-blazer-sepp-blatter

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El Shentenawi, L., Ramzy, F., & Sallam, Y. (2017, July). Finally, a Comprehensive Sports Law in Egypt. Al Tamimi & Company. https://www.tamimi.com/law-update-articles/finally-a-comprehensive-sports-law-in-egypt/

Honigstein, R. (2015, September 5). How German football rose from the ashes of 1998 to become the best in the world. The Observer. https://www.theguardian.com/football/2015/sep/05/germany-football-team-youth-development-to-world-cup-win-2014

James, S. (2013, May 23). How Germany went from bust to boom on the talent production line. The Guardian. https://www.theguardian.com/football/2013/may/23/germany-bust-boom-talent

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·      Ownership and Consent: The decision emphasizes that players own their image rights initially and that these rights cannot be exploited without the player's consent. It stresses the importance of clear and unequivocal consent in the use of player images.

·      Employment Contracts and Negotiations: The ruling highlights the role of employment contracts and image rights agreements in negotiating the use of player images. It suggests that negotiations typically revolve around the extent to which clubs may use player representations and image rights.

·      Collective Image Rights: The decision addresses collective image rights associated with clubs or national associations. It indicates that these rights are often governed by employment contracts and determine how player images can be used in connection with club or association branding.

·      Increased Awareness: The court ruling likely increases awareness among sports personalities about the importance of protecting their image rights. Players may become more proactive in negotiating contracts and agreements that adequately safeguard their image rights.

·      Deterrence of Unauthorized Use: The court's ruling serves as a deterrent against unauthorized use of player images by third parties. Organizations and individuals may think twice before using player images without proper consent, knowing  that                legal  consequences  could  follow.

·      Potential for Industry Growth: By recognizing image rights as valuable assets for sports personalities, the decision may foster the growth of ancillary industries related to image rights management, licensing, and marketing within the sports sector.

·      Player Empowerment: The decision empowers players by affirming their ownership and control over their image rights. This empowerment may encourage athletes to take a more active role in managing their personal brands and commercial opportunities.

·      Regulatory Considerations: Policymakers and sports governing bodies may consider the court's decision when developing or revising regulations related to image rights in sports. This could lead to updates in sports governance  frameworks  to  better  protect  athletes' interests.

·      Potential for Litigation: The court's decision may lead to an increase in litigation related to image rights disputes in the sports sector. As awareness and understanding of these rights grow, more cases may arise, leading to further legal  precedents  and   developments.

Conclusion:

This landmark decision sets a precedent for future cases involving image rights in Ugandan sports. It establishes legal principles and guidelines for protecting the image rights of sports personalities, which could lead to more robust contracts and agreements in the sports sector.

The growth of Ecuadorian Professional Football is undeniable now where we can find a solid project at Independiente Del Valle and strong structures such as Emelec, Barcelona, Liga de Quito adding the consolidation of more clubs as Delfin from Manta, Aucas and Universidad Católica from Quito, Guayaquil City and Orense from Machala.

All these clubs have played and achieved numerous victories on international tournaments in our region, either on Copa Libertadores, Copa Sudamericana or Recopa Sudamericana making Ecuador the third country on the statistics, surpassing Colombia, Chile, Paraguay, and Uruguay, were the clubs had an historic advantage against Ecuadorian Clubs.

Besides our strong clubs we have a lot of young talented players disputing their place in the best league around the world like Moisés Caicedo, Piero Hincapié, Pervis Estupiñan, Kendry Páez, Enner Valencia, among many others.

On our national youth teams, we have qualified for the last U-20 World Cup and U-17 World Cup in the last editions visibly showing the number of players fully trained by Ecuadorian Clubs.

But the question is how Ecuador have grown so much compared to other countries in the region having the obligation in many cases to “fight” (on a sense of disputing on football in a hand-to-hand position) against other clubs from a considered “bigger country in football”.

I would like to try in this article, to resume the next points that I consider vital for Ecuador for the growth shown over the last years:

1.    The birth of LigaPro

In my opinion, the birth of LigaPro is the most important key aspect that happened to Ecuadorian Professional Football because now Ecuador is organized by a particular entity dedicated only to growth of all the Clubs.  LigaPro was born on 2018 by a common decision taken from all First Division Clubs, to create a Professional League that has the competence to organize the Ecuadorian tournament corresponding to First and Second Division and to negotiate TV rights for them.

For 2023, LigaPro is working with a total amount of 26 Clubs, 16 from First Division and 10 from Second Division.  Besides that, LigaPro deals with Disciplinary Process, eSports, Female Football, Sports Compliance, Marketing and Ambush Marketing, Financial Fair Play, Sports Integrity, and Sports Corruption.  Taking care of all these situations has helped Ecuadorian Clubs to be more professional and create new departments such as sports law departments, sports marketing department, sports secretaries and more so.

Having LigaPro is the best decision for Ecuadorian Professional Football and is undeniable the positive change after the creation of LigaPro. 

2.    Investment on youth academy’s

Independiente del Valle has shown how a well-structured Club can compete on regional tournaments with Ecuadorian players developed by their own youth academies. 

Independiente del Valle has trust on a process, on their youth academy and on Ecuadorian players that with training and focus on their goals they can reach the best positions on every Conmebol Tournament.

This situation has taken other Ecuadorian Clubs to bet on youth academies and create more academies through all Ecuador to sign the best players in Ecuador and complete them with balanced squad of talented South American players. Now we can see how more clubs have joined the vision and are trying to invest in their youth academies and we can notice how Liga de Quito, Barcelona, Aucas, Universidad Católica, Orense, Emelec and others, are focusing on young players to strengthen their skills and introduce them to the first division teams in order to help them increase their abilities so they can be reliable on a near future and possibly work on a business that generates even more income to the clubs.

Investing in the youth academies has been very successful lately for Ecuadorian clubs, where you can see how top players are leaving behind big amounts of money for their clubs according to the release clauses drafted on those contracts for example, the cases of Denil Castillo, José Cifuentes, Piero Hincapié, Moisés Caicedo or the next gen of players such as Allen Obando, Óscar Zambrano, or Kendry Paéz.

3.    Legal Structure

It´s been 5 years since the creation of LigaPro, so now all Ecuadorian clubs know how to work and have a correct structure to participate in national and international tournaments. The knowledge acquired by Ecuadorian clubs thanks to the legal structure created by LigaPro is very helpful for them because now they have acquired all the necessary measures to work on the youth team, to organize their marketing departments, to comply with financial fair play avoiding possible bankruptcy situations, contracts drafting according to sports law principles, development of female football, protection of a healthy environment for football, etc.

All these situations have given Ecuadorian Clubs a particular advantage against other clubs in the region that don’t have a legal structured system to help them organize and to be able to participate correctly in the tournaments.

Conclusion.

Ecuador is on an important stage where they need to find a balance for the next years. Nobody can deny that the new young players are very talented, and they have the opportunity to move to very important clubs all over the world but now is the moment to demonstrate what they are made of. Ecuador is in its best phase in football with a lot of players coming out every year with incredible skills, so this is the right time to take a bigger step, be more ambitious and fight hand in hand against Argentina and Brazil for the first position on CONMEBOL.

I truly believe that Ecuador can look forward on disputing the first position on CONMEBOL thanks to the good governance, structured legal system, and qualities of the players.  Having a correct system makes it easier for the young talented players to show their skills and believe in their selves to compete for the first place at CONMEBOL.

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’.[1] 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. [2]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. [3]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.[4]

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. [5] 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. [6]

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.[7]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.[8] 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. [9]

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”.[10]

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. [11]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. [12]

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”.[13]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”. [14]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.[15]

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”.[16]

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’.[17] 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:[18]

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.[19]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. [20]

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.[21]The proliferation of these policies points towards the ‘marketization of citizenship’ – i.e. the reconception of citizenship from ‘sacred’ bond to marketable ‘commodity’ [22]which, it has been argued may undermine the ‘political ideal of a common enterprise committed to promoting equality, rights, and collective decision-making’. [23]

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.[24]

 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. [25]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.[26]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”.[27]

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”.[28]

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. [29] In 2018 it transformed its rules and a ban on athletes switching to compete for other countries was been lifted with immediate effect,[30] 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. [31] 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. [32]

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.

[33]

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”.[34]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”.[35]

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”. [36]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”. [37]

In Nottebohm (Liechtenstein v Guatemala) [38] 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.” [39]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.”[40] 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”.[41]

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”. [42]

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”.[43]

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. [44] “[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”.[45] The “new” conditions determining athletes’ country of representation relate typically to the place of birth[46]or the place of residence.[47]

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. [48] 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”. [49]

The CAS recognized the notion of a sporting nationality in B. v. Fédération Internationale de Basketball (FIBA), [50] 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. [51] 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.[52] 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”.[53]

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[54] 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.[55]

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”.[56]

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.[57]

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[58]

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”.[59] 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.[60]

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. [61]  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.[62] 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. [63]

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”. [64] 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.[65] 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.[66]

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.[67] 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”.[68] 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.[69]

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.[70]

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”.[71]

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. [72]

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.  [73]

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[74]  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[75]

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; [76]the Netherlands, 5 years; [77]and Argentina, just 2 years. [78] 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’.[79] 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’.[80] 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.