“‘England till I Die!?’ - A critical analysis of the relationship between ‘sporting’ and...

8/14/2019 England till I Die!? - A critical analysis of the relationship between sporting and general legal nationality in th

1/94

ABSTRACT

Title of Dissertation: England till I Die!? - A critical analysis of the relationshipbetween sporting and general legal nationality in the 21 st century

Dissertation Directed by: Simon Boyes LL.M, Senior Lecturer in Law, NottinghamLaw School

In this dissertation I will consider the relationship between the legal nationality and

potentially different sporting nationality of a citizen in the 21st Century. This

effectively will focus upon the emergence of an individual holding both a General

Legal Nationality (GLN) and a functional nationality, of being born in one country

but becoming naturalised and thus representing another or of representing one country

but using naturalisation laws to move freely around Europe.

The piece will be split into four further chapters with each chapter centring on a

particular topic that is felt important to addressing the question posed in this

dissertation in order to give a well-rounded analysis.

I intend to explore and discuss the emergence of the above possibilities of national

identity acquisition and thus establish whether or not a need to show a genuine link

between an athlete and the country they represent exists today. I will also ascertain

whether the general public accepts only orthodox nationals to represent them on a

- 1 -


2/94

world stage via their sporting teams or if association with a winning team regardless

of whether the star player was born or grew up in Birmingham or Bahrain.

Chapter Two will provide analysis and arrive at a conclusion towards the reasons why

individuals feel compelled to change their sporting allegiance. The obvious answer is

financial gain but potentially there are deeper conceptual problems which may exist

below the surface and that many may not feel accepted, accustomed and, in some

cases, welcome in their new surroundings. Focus will be applied to an article by

Prina Werbner and published in Sport, Identity and Ethnicity1 called Our Blood is

Green. The article focuses upon the various social and historical reasons that young

Pakistani boys and men until the age of thirty have a taken for granted allegiance

toward the Pakistani national (cricket) team despite most of them being born in

Britain.2 Attention will also be given to the apparent buy off between the major and

lesser countries in terms of athlete naturalisation and look at the ethical basis of such

agreements. Furthermore there will be an exploration of the ideas proposed by Joseph

Maguire that there are different classes of sporting migrants including what he

refers to a Pioneers and Mercenaries - and that these different groups have different

reasons for settling and working in an alternative destination to what they can

originally call home. Financial gains, he suggests, are not the main reason for many

and highlights an inherent desire in a certain type of citizen to roam and explore, just

as there forefathers have done for centuries previously.

Moreover, in Chapter Three, I intend to assess the current relationship of the Sport

Governing Bodies (SGBs), European Commission and European Court of Justice

1 MacCLANCY, J; Sport, Identity and Ethnicity, page 17, 1996, Oxford, England

2 Ibid, page 104

- 2 -


3/94

generally and specifically in light of the jump from world famous Bosman case to

expansion of those principles found within the Kolpak decision.

Chapter Four will assess the competence of individual states and numerous SGBs to

fix rules on the acquisition and loss of nationality and discuss the main grounds for

such acquisition, including option rights and naturalisation and the potential effects of

this; especially in the light of recent European case law. This will be ascertained via a

range of, largely, secondary research resources in order to understand the wants and

needs of all parties concerned with this increasingly interesting, complex and high

profile area of law which spans across many national borders and balance sheets.

Focus will also fall on the apparent inconsistencies between the naturalisation

processes in one European Member State compared to that of another and the possible

motivation behind such laws. The same will be done with regard to the SGBs

relative approaches to the problem with a particular focus on the International Rugby

Boards Regulation 8 Eligibility To Play For National Representative Teams- of

its laws and regulations and the Federation International de Football Associations

(FIFAs)Article 18 of the Regulations Governing the Application of Statutes.

Chapter Five will, relying heavily on the findings of Chapters Three and Four, focus

on the possibility of reform in the area and aims to conclude whether a sweeping

reform is needed, delicate changes or none at all. Analysis will also be evident

regarding the likelihood for change and the possible ramifications in the future.

- 3 -


4/94

ENGLAND TILL I DIE!? - A CRITICAL ANALYSIS OF THE

RELATIONSHIP BETWEEN SPORTING AND GENERAL LEGAL

NATIONALITY IN THE 21st CENTURY

By

Christopher James Townsend

Submitted to the Postgraduate Study Faculty of Nottingham Law School,

Nottingham as partial fulfilment for the requirements of LL.M Degree in Sports

Law

September 2008

- 4 -


5/94

CONTENTS

ABSTRACT...................................................................................................................1

TITLE PAGE.4

CONTENTS................................................................................................................5-6

ACKNOWLEDGEMENT.............................................................................................7

CHAPTER ONE

1.1 -Prologue.................................................................................................................81.2 - Primary Research Opportunity ...13

1.3 Research Results.............16

1.4 Research Conclusions.17

CHAPTER TWO - MONEY SAYS PLAYER MIGRATION IS NOT A NEW

PHENOMENON

2.1 Who Feeds the Baby of the Global Sporting Market?19

2.2 Those which cando..262.3 Legal Aliens.27

2.4 The Advent of the Dual National.31

2.4 Conclusions33

CHAPTER THREE FRIENDS REUNITED: SPORTS GOVERNING

BODIES, THE EUROPEAN COURT OF JUSTICE AND THE JUMP FROM

BOSMAN TO THE KOLPAK DECISION

3.1 The Legal Framework..36

3.2 The Big Two.37

3.3 The Effects at Pitch Level.41

3.4 Closing The Gates?...45

- 5 -


6/94

CHAPTER FOUR- AN INSPIRED SUBSTITUTION?

4.1 - Introduction.48

4.2 A Regulatory Evolution...49

4.3 A Global Trend52

4.4 Moving The Goal Posts54

4.5 The Consequential Effects...61

CHAPTER FIVE - THE BIG MATCH? INTERNATIONAL ELIGIBILITY

REGULATIONS vs. EUROPEAN UNION LAW

5.1 A Little Bit of Previous65

5.2 Trash Talking...68

5.3 The Warm Up...70

5.4 Asking for a Rematch?.73

CHAPTER SIX THE FINAL WHISTLE

6.1- Conclusion78

6.2 The Way Forward Future Reform Proposals ..83

Bibliography...89-94

- 6 -


7/94

ACKNOWLEDGEMENTS

I would like to express my thanks to a number of important people whose contribution

in writing this dissertation has been highly significant.

Initially, I would like to thank my parents, Michael and Julie Townsend whose help

and support over the four years leading to this point has been monumental.

I would also like to acknowledge the help and support of the academic staff at

Nottingham Law School, notably Simon Boyes who, as my dissertation supervisor,

has been at hand to guide, encourage and support me throughout the process and

whose knowledge and enthusiasm for the subject area has been a major asset.

- 7 -


8/94

CHAPTER 1:

1.1 PROLOGUE

With humankind now firmly in its third millennia it is impossible to overlook the

pervasive influence of modern sport on the lives of different people from around the

globe3. With this in mind, the main issues that this piece will explore are, initially, the

sociological influences which dictate the modern day rhetoric of citizen nationality.

Furthermore it is aimed at examining the current state within the European Union of

nationality and citizenship, their modern meanings in society generally and sport

particularly.

At the outset therefore it is important to acquire an understanding of how the

legislature views nationality and what an individuals nationality means in legal terms.

Gerard-Ren de Groot, Professor of comparative law and private international law at

the University of Maastricht, Holland, has noted that Nationalityhas been defined as

the legal bond between a person and a State; a definition, inter alia, given in the

European Convention on Nationality4. Art. 2 (a) immediately adds the words and

does not indicate the persons ethnic origin. De Groot considers Nationality an

important connecting factor5in both international national law for the attribution of

rights and duties to individual persons and States. For example, under international

3 MAGUIRE, J; Global Sport, page 1, (1999), Cambridge, England

4 European Convention on Nationality 1997

5 de GROOT, Gerard-Ren; Remarks on the Relationship Between the General Legal Nationality of a Person and his Sporting Nationality,

presentation to Scientific Congress on Nationality in Sports: Issues and Problems, organized by The International Centre for Sports Studies (CIES)

of the University of Neuchtel, in Lausanne, Switzerland, 10 November 2005.

- 8 -


9/94

law States have the right to grant diplomatic protection to persons who possess their

Nationality and under national law the obligation to, for example, fulfil military

service and the rights to become a Member of Parliament or to have high political

functions are frequently linked to the possession of the nationality of the country

involved6.

Furthermore, Article 15 of the Universal Declaration of Human Rights7 states, that

everyone has the right to a nationality and that no one shall be arbitrarily deprived of

his nationality nor denied the right to change his nationality.

It can be said then that nationality is a legal concept and not a sociological or ethnical

concept. As such, the nationality of a country in this legal sense is acquired or lost on

the basis of the domestic nationality statute. In the United Kingdom, the term

nationality is used to indicate the formal link between a person and the State. The

domestic statute that regulates this status is the British NationalityAct 19818 and

some general requirements regarding nationality will be discussed further in Chapter

Three below.

As a starting point it is interesting to note that, Lord Wellington, upon being queried

of his Irish heritage (he was born in Dublin, Ireland) declared that, in his opinion,

Being born in a stable does not make one a horse. His Lordships words are of

particular pertinence in the twenty first century in which the ever changing face of

6 Ibid.

7 Universal Declaration of Human Rights 1948

8 British Nationality Act 1981

- 9 -


10/94

post modern Europe has migration and freedom of movement between member states

as cornerstones.

There are undoubted advantages and opportunities which run hand in hand with such

provisions allowing millions of citizens across the continent and, in some cases, the

planet to prosper and benefit in a manner which at one time was unavailable.

A side effect of such widespread travel and migration however is a potential erosion

of ones national identity - for example should we now class ourselves as English,

Irish, Scottish, Welsh or as Europeans? Doubts therefore over whether nationality

matters any more9 and the desirability of a development of a functional sporting

nationality have risen to the surface.

It has been argued that central to this debate are issues of national identity and identity

politics with issues such as attachment to place, notions of self identity and allegiance

to a specific state at the forefront. Moreover, it has been suggested that each

individual possesses multiple and complex identities which are continually developed

and shaped, through time, by a social network of interdepencies. For example, as

alluded to above, we are both British and English and, increasingly, Europeans. This

argument is advanced by Abraham who states that in this posited transnational world,

belonging, for the individual, is multiple and variously institutionalized but still

concrete and less than volitional.10 Furthermore, Riva Kastoryano claims that the

modern citizen has a multi-layered approach to national identity and that, for example,

the country of origin becomes a source of identity, the country of residence a source

9 http://news.bbc.co.uk/sport1/low/sports_talk/1957498.stm

10 ABRAHAM, D; Constitutional Patriotism, Citizenship and Belonging, International Journal of Constitutional Law, 2008

- 10 -


11/94

of rights, and the emerging transnational space, a space of political action combining

the two or more countries.

From a historical point of view these claims have a strong base. For centuries people

have moved en masse across the globe. This notably includes the Irish Potato Famine

of 1845 and the Californian Gold Rush in America in 1848 which was one of the

largest human migrations in history as a half-million people from around the world

descended upon California in search of instant wealth11. Similar events were seen at

the conclusion of both the First and Second World Wars. The human race has been

forced to constantly move in order to survive, adapt and prosper. This practice

continues today with Western Europe and North America providing the hope of a new

and better life for many.

On a domestic level figures show that the past decade has seen immigration levels to

the United Kingdom increase drastically. In 1996, the last full year of Conservative

government, the official projection for net immigration was 65,000 a year. In

September 2007, the Office of National Statistics revised its projection from 145,000

a year to 190,000 therefore gross immigration since 1997 has been 4.4 million, net

immigration 1.6 million. When one considers that with the expansion of European

Union, to include counties such as Poland, Latvia and Romania between 2004 and

2007, to take the number of member States to twenty seven it is not surprising to find

that over 1.1 million Eastern Europeans arrived between 1997 and 2007.12

Charles Moore has opined that modern Britains entire social, charitable, cultural and

educational policy has had built into it the idea that "diversity" is "vibrant" and to be

11 http://ceres.ca.gov/ceres/calweb/geology/goldrush.html

12 http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2007/11/03/do0302.xml

- 11 -


12/94

"celebrated he concedes that it is certainly not crazy to argue that immigration can

bring benefit and that there is no serious country in the Western world which does not

have large numbers of immigrants. Immigration is an inevitable feature of the

exchange of ideas, goods, services and people which goes with modern life. To stop it

absolutely would damage freedom, trade, tourism, university education, the arts,

restaurants, and large parts of the National Health Service.

It is also true that immigration can broaden the mind of the host.

National cultures, therefore, from a general legal point of view, are commonly

regarded as a state of being into which an individual is born (and thus has little control

over) which, in turn, provide one of the main sources of collective cultural identity.

Moreover, the source of an individuals identity may well be traced back to a deep

rooted, almost intrinsic, perception by human beings of one another as belonging to

the same group including one another and associating them within the group

boundaries under the tag of we whilst, at the same time excluding others whom they

perceive as belonging to another group and to whom they collectively refer to as

they.

It is notable that there has, more recently, been an emergence, on an increasing level,

of athletes and sports stars representing countries other than those in which they were

born. It has been noted that importing athletes from other countries to strengthen the

medals chance in a sport is not a new phenomenon13. This is highlighted effectively

when one considers that historically several famous footballers played for more than

one national team in the early part of last century. Italys World Cup-winning sides of

13 Michele Verroken, the former director of ethics and anti-doping at UK Sport, see - http://uk.eurosport.yahoo.com/080206/2/xz6k.html

- 12 -


13/94

the 1930s featured the so-called oriundi, South American players who had played for

the national team of their native land but whose Italian ancestry also made them

eligible to play for the azzurri. Doubts however over whether nationality matters any

more14 and the desirability of a development of a functional sporting nationality

remain.

1.2 PRIMARY RESEARCH OPPORTUNITY

With this in mind primary research was carried out in the form of a questionnaire as a

means of discerning the priorities of certain groups within a cross-section of British

society felt their national allegiance lay and, more importantly in terms of this

dissertation, their views on national representation and the relatively new concept of

dual national.

A copy of the questionnaire can be viewed below

QUESTIONNAIRE

14 http://news.bbc.co.uk/sport1/low/sports_talk/1957498.stm

- 13 -


14/94

A critical analysis of the relationship between sporting and general legal

nationality in the 21st century with particular reference to recent developments in

European Community law

By Christopher TownsendSeptember 2008

PLEASE ANSWER THE FOLLOWING QUESTIONS TO ASSIST WITH

MY FINAL LL.M (SPORTS LAW) DISSERTATION.

Please answer the following three questions in the space provided:

How old are you? .

Where were you born? .

What nationality do you consider yourself? .

Please answer below the question with a number 1-5.

1 = strongly disagree / 5 = strongly agree

1) An athlete should only represent the county of their birth.

2) An athlete should be allowed to represent either the country they were born in orthe country their parents were born in.

3) Once an athlete has represented one country at any level they should not beallowed to represent another.

4) Once an athlete has represented one country at the highest level they should not beallowed to represent another.

5) An athlete should not be prevented from changing allegiance if they stand to profitconsiderably in financial terms.

6) A country should be allowed to naturalise an athlete from a different country inorder to improve their own national teams.

7) A two year residency period is too short a time period for automatic naturalisationto a new country.

- 14 -


15/94

8) A 15 year residency period is too long a time period for automatic naturalisation toa new country.

9) If an athlete moves to an adopted country for purely sporting reasons then he/sheshould be allowed to represent the adopted country.

10) I find none of the above important as long as the event is entertaining to watch.

11) I find none of the above important as long as my team win.

Many thanks for your time and assistance in filling in this questionnaire

- 15 -


16/94

1.3 RESEARCH RESULTS:

The questionnaire was completed by 15 individuals below the age of 40 and 15 from

above the age of 40. The rationale behind this segregation was to assess whether or

not the older participants had, as I hypothesised, a more traditional view of national

identity and national team eligibility requirements in comparison to their younger

counterparts.

The participants were asked to state their level of agreement with a number of

statements I had made with 1 indicating a strong disagreement and 5 indicating a

strong agreement. The relative opinions of both demographics are shown below.

Question Number 40 years old 40 years old

Average

Score between 1-5

Average

Score between 1-5

Average

Difference

1 3.0 3.8 +0.82 3.46 3.6 +0.143 2.86 3.86 +0.04 3.6 3.6 +0.05 2.3 2.2 -0.16 2.06 2.0 -0.067 2.53 3.7 +1.178 4.0 3.46 -0.54

9 2.46 2.40 -0.0610 3.33 2.33 -1.011 3.46 2.93 -0.5312 3.46 2.33 -1.13

1.4 RESEARCH CONCLUSIONS

The figures within the Average Difference column show a number of clear trends

emerging. For example the largest difference of opinion between the two peer groups

- 16 -


17/94


18/94

swimming pool, are taken into account with "The real price of a gold medalthree,

four or five times higher, up to $100 million."15

Nevertheless, at the outset it is noteworthy that, as found within the questionnaire

results, some participants brand themselves as English or Welsh as opposed to

those who classified themselves as British. Such classification appear however to

operate on a sliding scale in both a legal, political and sporting environment. For

example, in Rugby Union, the same sets of players/fans may be on opposite sides

(referring to each other as they) when their respective clubs play each other on a

Saturday afternoon, be on the same side as each other; referring to each other a us

when England play Ireland every Spring but then, every four years, include the Irish

fans as us when the British and Irish Lions touring sides take on either South Africa,

New Zealand or Australia who are, in turn, branded as they or, to use the

terminology of Norbert Elias, The Outsiders. Curiously the same cannot be said

about British football with a mooted Great Britain side for London 2012 Olympic

Games inclusion being, at the time of writing, dismissed by everybody but the English

Football Association. A reminder, perhaps, that there is much more to sporting

politics than winning the next game.16

CHAPTER TWO MONEY SAYS PLAYER MIGRATION IS NOT A NEW

PHENOMENON

15 CONNOR, J, Australian Defence Force Academy Officer, 2008 - see- http://www.theage.com.au/national/going-for-gold-but-at-what-cost-

20080823-40xd.html?page=1

16 note the massive own goal comments by Scottish First Minister Alex Salmon MP see - http://news.bbc.co.uk/1/hi/scotland/7580113.stm

- 18 -


19/94

2.1 WHO FEEDS THE BABY OF THE GLOBAL SPORTING MARKET?

As discussed in the previous chapter the phenomena of migration around the world is

a prominent aspect of modern society. Within this chapter the motivation of why

athletes choose to travel and possibly settle in other countries will be discussed.

There will also be analysis of whether players travel in order to represent a new

country or whether the honour of national selection is merely a by-product of a greater

and all encompassing desire to explore and develop themselves via travel.

Maguire has commented that whilst the migration of sports talent as athletic labour is

a major feature of the modern global cultural economy17, he has also suggested in a

recent article that sport labour migration is in in its relative infancy18

. Such a

comment may seem somewhat surprising coming from an academic who has

concerned himself with the area for over a decade, and given that sports geographers

took an interest in the migratory flows of athletes as far back as the1980s.

However, on a wider scale, the world wide ebb and flow of sporting trade which

includes sporting goods, clothing, equipment, media images, ideologies and capital,

highlights the youthful foundation of athletes overseas travel.

This is well highlighted in comparison to the market of sporting clothing, a prominent

example of globalization within the sporting sector. The Beijing Olympics of 2008

17 MAGUIRE, J; Global Sport, page 97, (1999) Oxford, England

18 MAGUIRE, J; Journal of Sport and Social Issues page 577, 2004

- 19 -


20/94

provides a perfect example of the scale of the economies involved. Nike are an

American company and Adidas are based in Germany, but both have publicly stated

that China is their most important market outside the United States, with the rivals

each generating sales of around 500 million a year. Adidas have approximately 4,000

stores across China, including a new flagship shop in Beijing with 10,000 square feet

of floor space, while Nike have a similar number of outlets. In years to come, those

numbers could increase by several multiples China has a population of around 1.3

billion, which means 2.6 billion feet for Nike and Adidas to fight over.19

Whilst the companies each risk a massive outlay, a reported 50 million by Adidas to

become an official sponsor of the Beijing Games 2008, with the money going on

securing the rights and also donating the shoes and clothes to cater for 100,000 staff,

volunteers and technical officials20, the rewards are clear. For example, within the

sporting goods market alone in 2007, the adidas Group again delivered strong

financial performance. In euro () terms, adidas Group revenues grew to

10.299 billion in 2007. The Groups gross profit reached 4.882 billion in 2007

versus 4.495 billion in 200621. Similarly, Nike reported gross international revenue

of $16.3 U.S. billion in 200722. Furthermore, major European football clubs such as

Manchester United and Real Madrid rely on merchandising of products for 26% and

20% respectively of the annual income.23

With focus now on sporting player migration it is clear that this is not a new

phenomenon.

19 see - http://www.telegraph.co.uk/sport/othersports/olympics/2471842/Olympics-Sportswear-brands-collide.html

20 see - http://www.telegraph.co.uk/sport/othersports/olympics/2471842/Olympics-Sportswear-brands-collide.html

21 see - www.adidas-group.com/en/investor/reports/default.asp

22 see - www.nike.com/nikebiz/investors/reporting_sec/ar_00/financials/notes.pdf

23 see - The Economist Its a Funny Old Game, 8th February, 2002

- 20 -


21/94

Maguire, within Global Sport (1999) and in line with much of his published work,

has stated that when attempting to develop a panoramic view of the relative push and

pull factors of migration decisions, there is a case for looking at political, economic,

and social linkages at the micro, through meso, through macro level in his

contention that the political, cultural, economic, and geographic issues and pressures

that structure migrant lives, interweave in a fashion where no one factor

dominates

He has also developed several typologies of individual athlete whom all possess an

alternative principal motivator to move. He states that this first group are to be

classed as pioneers. These are migrants who possess a passion and zeal in

promoting the virtues of their sport24 and whose words and actions can be seen as

a form of proselytizing by which they seek to convert the natives to theirbody habitus

and sport culture. He suggests that such pioneers can be seen traditionally within

Canadian Ice Hockey players moving to the United Kingdom, a phenomenon which is

further discussed below, or the likes of David Beckham whose celebrity and fame is

used as a primary tool to develop football within the United States.

Second are settlers, who not only bring their sports with them but are sports

migrants who subsequently stay and settle in the city where they ply their labour.

They are characterised by the fact that they choose to stay within one team, or in one

place, for a sustained period of time.


- 21 -


22/94

A third type of migrants can be called mercenaries, of whom Maguire has elsewhere

referred to as hired gunsmotivated more by short-term gains with little or no

attachment to the local, no sense of place in relation to the space where the currently

reside or do their body work25 . These are players who, above all else, are motivated

by financial reward. Further research suggests that it is this particular group who face

the highest level of adversity as, despite being favoured for the relative cheapness

they are often seen as blocking the pathways of home-grown talent.

The group referred to as Nomads differ, in contrast, by the fact that they seek a

cosmopolitan engagement with migration, to be a stranger in a foreign

metropolitan culture.26

His final typology is that of the returnee for whom the lure of home soil can prove

too strong.

It can be seen therefore that modern athlete migration potentially occurs on three

levels; namely within nations, between nations located on the same continent and

between nations located on different continents and hemispheres27.

Moreover, with the advent of twenty first century mass media, it has been claimed

that the so-called global system of sports spectacles have meant that athletes no

longer solely want to travel abroad to ply their trade by need to because the actions

of individuals, such as Mark McCormack (founder of IMG Group 28) and Rupert

25 Ibid.

26 Ibid.


28 http://www.imgworld.com/home/default.sps

- 22 -


23/94

Murdoch (creator of News International29), have created a market place in which they

directly employ or facilitate the employment of sports stars to perform in Super

Leagues, World Series or exhibition tournaments across the globe. This, arguably, is

the incentive to players, those referred to as ambitionists by Magee and Sugden,30 to

move to a new country in the first instance, to be a part of the best competitions and to

secure their place at the top table in sport31. For example football players from within

Scotland, Wales and Ireland may feel that the most promising move for their career is

to England in order to play within the Premier League competition. Similarly, the

league attracts players from all over Europe with those from Spain, Italy, France and

Holland the most common migrants. Finally, a brief scan of a team sheet on a

Saturday afternoon would highlight that players from other continents such as Africa

and Asia are mainstays in modern English football. The same can now be said of the

domestic rugby competitions in England and France.32

Such athletes are to be branded within this dissertation as Avenue One athletes; they

arrive freely to initially represent their clubs and may ultimately appear for their

adopted country if they want to, are selected to and meet the specification to do so.

Two recent examples within rugby union include Lesley Vainokolo and Riki Flutey of

Tongan and New Zealand origin respectively. Flutey recently stated that despite

representing New Zealand age grade teams and the New Zealand Maori side he

decided to don the white jersey as he didn't make the All Blacks but wanted to see

how I can go on the international stageand take a fantastic opportunity.33 This

29 http://www.newsinternational.co.uk/

30 Magee and Sugden 2002

31 Note the comments of top football agent Kia Joorabchian The Premier League is the best in the world with a standard of football that is so high

you talk to any top-class young player about where they want to play and 90% say England. This is where footballs at.

32 see - http://www.telegraph.co.uk/sport/rugbyunion/international/england/2327742/Foreign-influx-concern-for-IRB-chairman.html

33 http://www.timesonline.co.uk/tol/sport/rugby_union/article4244745.ece

- 23 -


24/94

message correlates with the intentions of Brazilian born player Ailton who was

vociferous in stating that If Brazil ignores me for 2006 (World Cup), then I have to

find another way to get there.34 The desire to play at the top level can therefore be

considered a motivating reason for players to adopt a new allegiance.

Furthermore, evidence of political factors interweaving with the economical climate

can be found within the players need to move to a new country at an early age in order

to develop as an athlete with access to adequate training facilities. Magee and Sugden

refer to these as exiled athletes those who, for [sport]-related, personal, or

political reasonsopts to leave their country of origin to play abroad.35 The mid

nineties saw many players move from Baltic States such as Yugoslavia in order to

train and develop safely36. Milorad Ivanovi claims that Serbias tennis prodigies,

Ana Ivanovi, Jelena Jankovi and Novak okovi have received and rejected

lucrative offers to change citizenship at some stage during their careers. Whilst they

refused to do so, with Ivanovis father claiming the idea was dismissed as soon as his

daughter started to make a handsome living out of tennis, he is also sympathetic to

those who do not refuse the lucrative too good to be true37 offers from developed

sporting countries such as the United Kingdom, Australia and America. He further

recognises that Australian, American and European Union passports increase an

athletes market value by ten or twenty times, meaning sportspeople from these

34 http://cultureofsoccer.com/2007/02/10/players-switching-nationalities-a-long-term-quandary/

35 Magee and Sugden p432

36 IVANOVIC, M; Rich States Poach Former Yugoslavias Sporting Talent, 2007 see-

http://playthegame.org/Knowledge%20Bank/Articles/Rich_states_poach_former_yugoslavias_sporting_talent.aspx

37 Miroslav Ivanovi, Anas father, interviewed in 2007 : When she was young and full of ideas, she thought about taking up the citizenship of

another countryThere were many offers and some too good to be true [but] she stopped thinking about changing her nationality the moment she

started making a handsome living from tennis.

- 24 -
http://news.bbc.co.uk/sport2/hi/football/africa/3523266.stmhttp://news.bbc.co.uk/sport2/hi/football/africa/3523266.stmhttp://news.bbc.co.uk/sport2/hi/football/africa/3523266.stmhttp://news.bbc.co.uk/sport2/hi/football/africa/3523266.stm


25/94

countries get incomparably more money from sponsorsMore practically, they also

do away with the chore of obtaining travel visas, something not even those playing in

top tournaments have been able to avoid, although a new EU regime should make

things easier from next year.

Whilst the travel aspect is currently under review by the European Commission via

the Stability Pact38, the undoubted advantages to move abroad remain. As such it is

of little surprise that faced with limited chances for professional development, many

other Balkan athletes have given in. For example Marko Pei, son of the prominent

basketball coach, Svetislav Pei, who guided Yugoslavia to gold medals in the 2001

European and the 2002 World Championship, took up German citizenship recently.

This also correlates with a straw poll of 100 athletes conducted for Ivanovis report

which showed 54 per cent would consider moving, given the chance. Thirty per cent

of them said their principal motive was financial, while 18 per cent were unhappy

with government policy on sports. Some 16 per cent cited visa problems, while 8 per

cent believed they could achieve better results in other countries. None stated politics

as a motive. The poll showed 54 per cent were neutral over whether there was a moral

aspect to the question of changing nationality. Twenty-six per cent saw it as a positive

move, while 20 per cent believed it was wrong.

The above classifications of athletic immigrant are important as a means of

understanding that every athlete has a unique agenda and ambition which motivates

38 Regional Co-operation in South East Europe, Moving Towards Local Ownership European Community Fact Sheet, 10th May 2007 see -

http://216.239.59.104/search?q=cache:BF_aFa19uB8J:ec.europa.eu/enlargement/pdf/key_documents/2007/regional_cooperation_recent_achivements

_en.pdf

- 25 -


26/94

his/her desire to move. As discussed above these vary as much between Avenue One

athletes and those in Avenue Two, those who move specifically for national

representation motives, as they do between the categories coined by the likes of

Maguire, Sugden and Magee.

2.2 THOSE WHICH CANDO

Further motivating factors can include the chance to play for a country which they are

statutorily entitled to do so either because an athlete consider themselves and are

considered by others as superior on a sporting level than their primary country of

origin. These links can be traced to colonialism.

A good example is the Dutch colony of Suriname which gained independence in

November 1975. Subsequently, 40,000 citizens chose Dutch nationality and these

included the parents of esteemed Dutch football players such Edgar Davids,

Clarence Seedorf and Patrick Kluivert; the first two being born in Suriname itself.39

For those born and raised in the country it is believed that you have to leave early to

become someone, and thats the secret to success. It appears that the countries

problems overcome its possibilities and despite the efforts of ex-Presidents and

Seedorf40himself the best players will continue to leave and make it to the outside

at the first opportunity they have. This seems particularly understandable when one

considers that 80 percent of the population of Suriname lives below the poverty line,

and children drop out of school as readily as other people take off their shoes.41

39 TITINGER, D; Kicking the Ball to Holland, Virginia Quarterly Review, Autumn 2007, p.175-187

40 Seedorf supplied the necessary funding to open the Clarence Seedorf Sports Complex, which is not yet open to the public, just outside of the

capital city of Paramaribo.

41 TITINGER, D; Kicking the Ball to Holland, Virginia Quarterly Review, Autumn 2007, p.175-187

- 26 -


27/94

Further more, the problems faced by the Suriname Soccer Federation, known as The

Surinaamse Voetbal Bond, is not helped by the ruling government of the country

refusing to recognise dual nationality for political reasons. As such the flow of human

traffic and athlete migration is, at best, one way and, according to the SVB President

Louis Giskus, whilst the one hundred fifty Surinamese players in Holland couldnt

all make the Dutch national team we could sure use them in Suriname. Further

research suggests that France, the most successful European footballing country of the

past decade, have enjoyed success thanks to generous donations from their previous

colonies. Their importance is highlighted when one considers that in the 2006 French

squad, 17 of the 23 players were members of racial minorities, including many of the

most prominent players. The team featured players from the overseas departments

and players who are themselves immigrants or the children of immigrants from

formerFrench colonial territories.

2.3 LEGAL ALIENS

Further reasons for a change in national allegiance include immigrants, according to

Werbner, often feeling a sense of alienation and disaffection within British society.

She claims that via the medium of support of the national team, that young British

Pakistanis express their love of both cricket and the home country42 and that this

highlights that when it comes to sport, there is no such thing as being British.43

This she argues, is because, amongst other reasons, cricket is the game of the other,

the former oppressor, which has become a popular cultural expression of modern

Pakistani nationalism via friendly competition in the international arena. As such it is

42 WERBNER, P; Our Blood is Green in Sport, Identity and Ethnicity, edited by J, MacClancy, p.101

43 Ibid. p. 104

- 27 -
http://www.bookrags.com/D?partement_d%27outre-merhttp://www.bookrags.com/French_colonial_empireshttp://www.bookrags.com/D?partement_d%27outre-merhttp://www.bookrags.com/French_colonial_empires


28/94

little surprise that within her paper a young Pakistani is quoted, when interviewed,

that he was proud to be British, but when it comes down to the hardcore, Im really

Pakistani!44

An individuals social standing can often be undermined by comments from those

such as Norman Tebbit, the ex Conservative Party MP, who suggested that British

Pakistanis should support the England national cricket side and that if they come to

live in a country and take up passport of the country then they should not keep

harking back to their place of origin45. Similar comments were made by Jean-Marie

Le Pen, who, following Frances encouraging 2006 Football World Cup, could not

resist defiling the moment. Le Pen decried France's multi-ethnic team as

unrepresentative of French society, saying that France "cannot recognize itself in the

national side," and "maybe the coach exaggerated the proportion of players of colour

and should have been a bit more careful."46

Clearly, comments such as those above are outdated and those which endanger

democracy and freedom are intolerable and indefensible, particularly in a multi-ethnic

and multi-cultural Europe.

However, the issue of to what extent the citizens of the nation for which the athlete

competes recognise themselves in the national team is at the forefront of debate. The

questionnaire carried out, as discussed above in Chapter One, suggests that the

majority of those asked, especially those below 25 years old did not mind who

44 Ibid.

45 Ibid.

46 http://www.commondreams.org/views06/0707-22.htm

- 28 -


29/94

represented them as long as their team/country is successful. As referred to above, a

recent study within Maguires Global Sport suggests that European Ice Hockey

epitomises such a multicultural sporting environment.

Whereas the economic core of the sport can be located in North America and within

the National Hockey League (NHL), the sport also flourishes in Europe and parts of

Asia. He notes that the majority of UK imports are Canadian (34% of the total

exports) into Europe and that the United Kingdom is the new home to 12% of these

players. Furthermore, he notes that the main importers during the 1990s included

the former Soviet Union47 and goes on to suggest that it is feasible to speculate that

the main motivation of those who moved from the Eastern Bloc involved either a

desire to settle in the West or to earn as much hard currency as they could in as short

a time period, and the return home48. The situation, he suggests, is different for

Canadians for whom British ice hockey has long been a preserve. 49 Ex England Ice

Hockey coach, Peter Johnson, contextualised the position however when he

commented that although the Canadians tell you they are English when they get a

British passportit doesnt make them English.50

Whilst this may have some foundation the gains made by the national team as a result

of the policy to include naturalized players are unavoidable; and has seen them rise

from the bottom division of world ice hockey to be a European force. But at what

cost? There have been reports of so called mercenaries leaving over night without a

trace and in breach of their employment contract in order to find a further pot of


48Ibid. page 108

49Ibid. page 109

50 Peter Johnson, ex England Ice Hockey Coach, The Guardian, 29 January 1993

- 29 -


30/94

French francs or Deutschmarks, not least because there exist well trodden migration

trails to French speaking parts of Europe by French-Canadian citizens51 and also fears,

as with many sports involving mass immigration, that the foreign imports restrict the

development of home grown talent. Former International Ice Hockey Federation

(IIHF) president Jan-Anke Edvinsson commented in 1995 that if a new player comes

to a new country and plays for the team, he takes the place of one junior 52 with the

domestic born and developed players left to shine the pine53 (sit on the replacements

bench).

Whilst such allegations are defended by the likes of the British Ice Hockey Federation

who, at the policies inception in 1995, stated that the use of dual nationals is the only

way to compete at the top level until weve brought our youngsters on 54 the accuracy

of such comments is brought into question when one notes that over a decade later,

and after failing to qualify for the Winter Olympics in 2006 and slipping to Pool B in

the global ranking at 18th position, dual national players are still pulling on the British

jersey.

2.4 THE ADVENT OF THE DUAL NATIONAL

Unrest has also surfaced regarding the role of the respective sports governing bodies

in the encouragement of dual nationality athletes. For example, it has been

suggested that it is a counterproductive measure for a SGB, such as the Rugby


52 Jan-Anke Edvinsson, Personal Interview in Zurich, March 1995 maguire p109


54 see Daily Telegraph, 4 March, 1994, p.34

- 30 -


31/94

Football League, to dictate the make-up of club squads while allowing the national

coach to select a non-British player. It has been described as at best short sighted at

worst contradictory as the selection also flies in the face of the Rugby Leagues

decision to impose rules on Super League clubs governing the minimum number of

British-born and trained players required in their squads for the 2008 season. Davis

has noted that Rugby League is not as attractive financially as other sports such as

Rugby Union and football and believes that, as such, players who choose to take up

the sport do so for something more than just money; namely for the passion of the

game and the hope that they will one day get the chance to put their bodies on the line

for their country of birth.55 For this reason, he opines that, the criteria for selection

for the national team should be sacrosanct and that Samoan born Maurie Faasavalus

recent inclusion is a controversial one in the minds of many fans who will be hoping

that it is not a costly one for the games sake.

The position is not only unsatisfactory in the eyes of the adopting state but also, it

seems for the country that stands to lose one of its better athletes and prospects. The

ex Australian Rugby League player, Mark Gasnier56, is in line to represent France in

the Union form of the game, after moving to play for Stade Francais. Possible

motivating factors such as sipping a coffee on the Champs Elysee in Paris or

sampling red wine in Bordeaux are believed to be prevalent.

57

Also key is the, nowobvious, fact that the money on offer in Europe is much greater than they can

command in the Australian National Rugby League. Whilst the prospect of becoming

a dual-national and thus being able to travel freely around Europe to play without

being counted as a foreign player are highly attractive to clubs and players alike, the

55 see - http://www.sportingo.com/rugby/a5469_why-great-britain-ignoring-native

56 http://www.league.net.au/mark-gasnier-quits-the-dragons/

57 http://www.theaustralian.news.com.au/story/0,25197,24002946-16143,00.html

- 31 -


32/94

country of the players origin may feel that it is one thing to lose talented players to

overseas clubs, but it is another thing altogether to have those players come back and

play against you.58

As an overview of the above it appears accurate to state that there are a great number

of reasons put forward why a player feels that he may change the country of his

employment and, subsequently, why he may then continue to represent that country in

the international arena. It is important to note that the two are not necessarily

interconnected and that hundreds of players travel around Europe and the world to

play sport whilst continuing to represent their original country. However, for those

who do change their place of employment, their national allegiance or both, the factor

of financial gains appears to be readily used disparagingly by disgruntled supporters

and/or ex-employers. Whilst not always the case the opportunity to earn considerably

more or to hold a more desirable passport for the purposes of sponsorship must not

be overlooked. Whilst other reasons such as Maguires alleged innate need to travel

and explore, to play and develop in safe surroundings as youngsters and those who

regard themselves as pioneers can not be dismissed nor can the lure of earning hard

currency in a foreign land; which appears to be the cornerstone on which many

decisions are based.

Athletes such as those discussed above whom now where the respective jerseys of

England and Great Britains rugby teams didnt arrive in the country with that solitary

purpose. As such they are categorised within this piece as Avenue Two athletes and

differ from those from individual sports such as tennis (e.g. Monica Seles) or athletics

(Stephen Cherono) who can continue to compete at the top level despite whose vest

58Ibid.

- 32 -


33/94

they wear or whose flag they salute and have no need for other athletes around them

to be of a similar standard.

2.5 CONCLUSION

For those whom national representation is a deciding factor, those who state a desire

to play at the highest level or to join the brotherhood of a football World Cup, to

suggest that financial gains are not a consideration appears negligible. It appears

likely that the adoption of a superstar is more important to the adopting country than

to the athlete himself and has been suggested that as countries begin to appreciate the

socio-cultural advantages of a successful sporting identity and become driven by the

pressures to succeedand the need to justify the expenditure of millions in the name

of sport could see them become a sporting nation willing to acquire medals by any

means59 whilst the athletes can merely consider the representation as a flag of

convenience.60 It seems then that it has been opined by some that the colour of the

flag matters little, especially to the individual athletes, but the colour of the money

does. Team players on whom the above has focused also claim that the money is not

the most important thing, but the opportunity to play in major tournaments is. This

appears highly negligible when consideration is drawn to whom the defectors in

question move to. For example the fact that Ailton, above, has chosen to represent

Qatar who are worryingly currently the seventy first best team in the world (behind

59 http://uk.eurosport.yahoo.com/080206/2/xz6k.html

60 see comments by Alex Dampier, ex Great Britain Ice Hockey Coach, in MAGUIRE, J; Global Sport page 116

- 33 -


34/94

the likes of Togo and Uzbekistan)61 yet reassuringly features in second position in the

Middle Easts wealth list,62 does little for the credibility of such comments.

CHAPTER THREE

61http://www.fifa.com/worldfootball/ranking/lastranking/gender=m/fullranking.html#confederation=0&rank=172&page=2

62 http://www.aneki.com/middle_east_richest.html

- 34 -


35/94

FRIENDS REUNITED: SPORTS GOVERNING BODIES, THE EUROPEAN

COURT OF JUSTICE AND THE JUMP FROM BOSMAN TO THE

KOLPAK DECISION

In order to fully understand the primary aspects which shape the current global

environment of modern sport, including the issues of athlete migration, an

appreciation of the relationship between the global sports governing bodies and the

European Court of Justice is critical because it is only through such understanding

that one can appreciate the modern day beuracratic landscape. A deeper contextual

analysis of the history between the ECJ and various SGBs (as a means of ascertaining

the likelihood of potential future conflict) will take place in the following chapter and

of that I am not concerned here. The point of this section is, however, to highlight to

the reader the importance of two relatively recent cases decided by the ECJ and how

they have changed the legal landscape directly effecting the rights of passage of

athletes Europe-wide and beyond.

Furthermore, understanding of a recent and important decision within the European

Court of Justice in the case of Kolpak is necessary as a means of recognising how

vastly increasing numbers of foreigners are now able to compete as, effectively,

domestic players within Europe63. Analysis of the research within chapter two

highlights that this is clearly a highly attractive career move.

As a starting point it is important to appreciate the legal European context within

which sports in increasingly embroiled.

3.1 THE LEGAL FRAMEWORK

63 see - http://news.bbc.co.uk/sport1/hi/cricket/counties/7518580.stm

- 35 -


36/94

The Treaty of Rome64 (which established the European Economic Community (EEC))

was signed on March 25,1957 and as a result many areas of member state legislation

have been harmonised across the Community in order to be consistent with the

numerous Treaty Articles. The Treaty, however, did not refer to sport and, as such, it

is argued that the European Union is not currently constitutionally competent to adopt

legislation with the explicit aim of regulating sport.65 Whilst it is not uncommon for

regulatory policies such as the governance of sport to become penetrated by political

and other values, traditionally the sports sector has been left alone to develop its own

rules which have attempted to maintain a competitive balance between participants66 -

You need uncertainty at the core of every competition67 according to one time

Sporting Director of Real Madrid C.F, Emilio Butragueno.

Such unclarity has, however, led to an unavoidable overlap between the

compartmentalization, the regulatory space68, of Commission, Judiciary and the

Sports Governing Bodies and, as such, the view that a parliament does not and

should not run sport69is no longer strictly true. Rather, the law intrudes into many

aspects of public and private life70and sport is included.

Primary examples of such intrusion and its consequences can be seen in, as touched

upon above, two important cases over the fifteen years which have actively assisted

64 Treaty of Rome 1957

65 WEATHRILL, Stephen. The Demise of the Purely Sporting Rule ECLR 2006, 27 (12)

66 PARRISH, R; Sports Law and Policy in the European Union, p.1, Manchester, England, 2003

67 see - http://news.bbc.co.uk/sport1/hi/football/europe/7614900.stm

68 DAINTITH, T.C., A Regulatory Space Agency? (1989) Oxford Journal of Legal Studies 534

69 A Sporting Future for All The Governments Plan for Sport DCMS PP374 (March 2001)

70 BELOFF, M., KERR, T. AND DEMETRIOU, M., Sports Law (1999), Page 6, Oxford, England

- 36 -
http://en.wikipedia.org/wiki/European_Economic_Communityhttp://en.wikipedia.org/wiki/March_25http://en.wikipedia.org/wiki/1957http://en.wikipedia.org/wiki/European_Economic_Communityhttp://en.wikipedia.org/wiki/March_25http://en.wikipedia.org/wiki/1957


37/94

the flow of migrants, specifically sportsmen and women, around Europe and across

the world generally.

3.2 THE BIG TWO

The so-called High Watermark of Legal Intervention into traditionally sporting

issues has occurred in the past two decades after the well known ruling of the Court

of Justice of the European Communities (ECJ) inBosman v. Union Royale Belge

Socits de Football Association, (hereinafterBosman)71in 1995. The case concerned

a football player in the Belgian Second Division, whose contract had expired in 1990.

He had expressed an intention to leave the football club and move to Dunkerque, a

French team.

The problem, however, arose when Dunkerque and his Belgian club RFC Lige could

not agree a transfer fee. Lige refused to let him leave the club and consequently

retained his registration. In response Mr Bosman took his case, ultimately, to the

European Court of Justice who held that Article 48 (now Article 38) of the EEC

Treaty precludes the application of rules laid down by sporting associations72

Therefore, it was now deemed illegal to retain a players registration once their

contract at the club had expired and, furthermore, any quota system that was in place

domestically or in European competition was outlawed.

The decision in Bosman was revolutionary a turning point for sport73- as the ECJ

had made a direct link between football and other trades and industries and the Court

refused to accept that nationality based restrictions in club football constituted

71Union Royale Belge des Socits de Football Association (ASBL) v Bosman (C415/93) [1995] E.C.R. I-4921 (ECJ)

72Ibid.


- 37 -
http://en.wikipedia.org/wiki/Belgian_Second_Divisionhttp://en.wikipedia.org/wiki/1990http://en.wikipedia.org/wiki/USL_Dunkerquehttp://en.wikipedia.org/wiki/R.F.C._de_Li?gehttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://en.wikipedia.org/wiki/Belgian_Second_Divisionhttp://en.wikipedia.org/wiki/1990http://en.wikipedia.org/wiki/USL_Dunkerquehttp://uk.westlaw.com/find/default.wl?vc=0&rp=%2Ffind%2Fdefault.wl&DB=UK-CASELOC&SerialNum=1995258752&FindType=Y&AP=&fn=_top&rs=WLUK7.02&mt=WestlawUK&vr=2.0&spa=ukatntu-000&sv=Splithttp://en.wikipedia.org/wiki/R.F.C._de_Li?ge


38/94

legitimate rules of sporting interest.74 Dr. Parrish goes on to provide that the result

within the case was of such importance that it created a sports policy subsystem75

and, prior to the decision sport had been discussed within a variety of wide-ranging

policy subsystems with their roots in single market values as opposed to their socio-

cultural equivalents. Moreover, despite earlier warnings in the Walrave andDon

cases (the case facts will be highlighted and discussed within the following chapter,

below),Bosman came as a real shock for sports governing bodies. SGBs, not least

the football authorities, abruptly realised the far reaching potential consequences that

European law could have for their activities and the re-galvanised intent and the re-

energised efforts of the Commission to enforce them across the Community; an act

which they were arguably guilty of not doing previously.76

However, the practice of nationality requirements in sports regulations, which had

clearly been outlawed to a certain extent77 in the Bosman judgment, was challenged

once again in the case of Kolpak78. According to the principles set out in the Bosman

Case, the prohibition of discrimination laid down in the provisions of the EC Treaty

dealing with the free movement of workers applied not only to measures of public

authorities but also to rules drawn up by sporting associations which determined the

conditions under which professional sportsmen could engage in gainful

employment.79

74 WEATHRILL, Stephen. The Demise of the Purely Sporting Rule ECLR 2006, 27 (12)


76 GARCIA, B; From regulation to governance and representation: agenda-setting and the EUs involvement in sport, Entertainment and Sports

Law Journal, ISSN 1748-944X, July 2007

77 NOTE: the ECJ decided that the restriction of a players movement after he becomes a free agent is excessive, however they deemed that this rule

only applies to players over twenty four years old. This suggests a renewed recognition that the ECJ is not unacquainted to the fact that sports clubs

in particular need protection to compensate for the resources that they have invested in the players development

78 Case C-438/00 Deutscher Handballbund eV v Maros Kolpak, [2003] E.C.R. I-4135

79 Slovak Sportsmen Entitled to the same Treatment as EEA Nationals, Case Comment, EU Focus, 2003

- 38 -
http://go.warwick.ac.uk/esljhttp://go.warwick.ac.uk/esljhttp://go.warwick.ac.uk/esljhttp://go.warwick.ac.uk/esljhttp://go.warwick.ac.uk/eslj


39/94

The issue of nationality requirements in sport has developed during the intermittent

years however and now a typical scenario would also concern a third country

national.

Ultimately, despite the legal context being somewhat different from Bosman due to

the specifics of the nationality restrictions in question (itinvolved an athlete from a

country that has concluded an Association Agreement with the European

Communities) the contested sporting rules awaited the same fate.80

On the facts Maros Kolpak, a handball goalkeeper of Slovak nationality, signed an

employment contract with TSV stringen of the German second division. The

agreement was due to expire on June 30, 2000. In February 2000, both parties agreed

a new contract for the period until June 30, 2003.

The relevant governing body, the Deutscher Handballbund (DHB) is responsible for

the organisation of league and cup matches at domestic level and according to rule.15

(1)(a) and (b) of their internal regulations, the letter A is to be inserted after the

licence number of the licences of players who do not possess the nationality of an EU

Member State, or who do not possess the nationality of a third country associated with

the EU whose nationals have equal rights as regards freedom of movement under

Art.39(1) EC. Moreover, rule.15 (2) provides that no more than two players whose

licences are marked with the letter A may play for teams in the federal and regional

leagues in a championship or cup match. Therefore the DHB issued Kolpak a player's

licence marked with the letter A on the ground of his Slovak nationality and Kolpak,

who had requested from the DHB a player's licence without a suffix indicating his

80 VAN DEN BOGAERT, S; And Another Upper-Cut by the European Court of Justice to nationality Requirements in Sports Regulations, European

Law Review, Case Comment, 2004

- 39 -


40/94

foreign nationality, challenged this decision before the Regional Court of Dortmund.

He claimed that nationals of the Slovak Republic are entitled to participate without

restriction in competitions under the same conditions as German and Community

players on the basis of the prohibition of discrimination resulting from the combined

provisions of the EC Treaty and the Europe Agreement establishing an association

between the European Communities and their Member States and the Slovak

Republic which was referred to the Slovakia Agreement. After the regional Court

had ordered the DHB to deliver the player's licence sought an appeal against this

decision was referred to the European Court of Justice for a preliminary ruling.

The relevance of the decision on international sports migration was potentially huge

as despite the Court's judgement not appearing groundbreaking from a doctrinal

point of view (they had followed the cases of Bosman and Malaja81) the fact that

the decision may have a significant impact on the sports practice globally

remained.82

The ECJ had reasoned that the first indent of Art.38 (1)83 of the Slovakia Agreement is

directly effective and holding that Art.38 (1) of the Slovakia Agreement is applicable

to rule.15 of the SpO of the DHB. This is despite the DHB being a completely private

body with no state intervention and is the sole governor of the sport in Germany. The

immediate consequences of the ruling entail that rule.15 of the SpO cannot be applied

81 Malaja case (see The Observer, 6 February 2000)



83 NOTE: This provision states that: subject to the conditions and modalities applicable in each Member State, treatment accorded to workers of

Slovak Republic nationality, legally employed in the territory of a Member State shall be free from any discrimination based on nationality, as

regards working conditions, remuneration or dismissal, as compared to its own nationals.

- 40 -


41/94

to Kolpak and that the DHB would be obliged to issue him a players' licence without

any prefix.

3.3 THE EFFECTS AT PITCH LEVEL

The decision was far-reaching across both the geographic and sporting domain.

For example, the Belgian Basketball Federation now states within its statute the status

of players, for the purposes of the Belgian 1st division basketball competition, from

states with similar trading agreements. Indeed, Article 171 of the competition statutes

states that such players can participate in the Belgian competition under the same

conditions as Belgian players provided that they are professional players who qualify

for at least 8 months of the minimum wage as established by the relevant Belgian

immigration legislation for foreign professional sportspersons.

Moreover, according to Article 171, the license to play in Belgium is always issued

either by the French-speaking Basketball Federation or by the Dutch-speaking

Basketball Federation depending where the club is located. In order to obtain the

license, the player has to produce the following: (1) copy of a valid identity card or

passport or proof of the inscription within the foreigners registry; (2) valid residence

permit, covering the complete basketball season and a work permit; (3) release letter

from the Federation to which the last club the player has played in is affiliated, unless

the last club was a Belgian club.

- 41 -


42/94

Finally, if the residence and/or work permit is withdrawn from the player, the players

license becomes non-valid and the players affiliation to the Belgian Federation,

which is typically confirmed by issue of an orange card, is revoked.

Understanding of statutory amendments such as those above is a helpful insight as to

the specific, practical effects of decisions which are passed far from the sporting arena

in which their influence is heavily felt.

More generally, the decision has led to significant numbers of athletes from countries

with similar trade agreements flooding into Europe to ply their trade. For example

due to the Cotonou Treaty84, free trade exists between the European Community and

many African, Pacific and Caribbean countries. There has, for example, been a major

impact on English cricket, with players such as Jacques Rudolph, Martin van

Jaarsveld and Omari Banks choosing to ply their trade in England rather than seek

international honours for South Africa or West Indies.85 It was feared that the decision

could see county cricket's current regulation of two overseas players per side

toppledandin theory county (cricket) teams in the future could have no England-

qualified players.86 Furthermore, EU laws have already allowed any player with a

European passport to play county cricket without restriction. With Middlesex opener

Sven Koenig, a South African, using an Italian passport while former Zimbabwe

captain Andy Flower carries a British one after qualifying through residency and

84 The Cotonou Agreement is atreatybetween theEuropean Unionand the group of African, Caribbean and Pacific states (ACP countries). It was

signed in June2000inCotonou, the largest city inBenin, by 79 ACP countries and the then fifteenMember Statesof the European Union. It entered

into force in2003and is the latest agreement in the history ofACP-EU Development Cooperation.

85 See - http://content-www.cricinfo.com/england/content/story/362154.html

86 Mark Newton, Chief Executive, Worcestershire County Cricket Club see http://news.bbc.co.uk/sport1/hi/cricket/3529413.stm

- 42 -
http://en.wikipedia.org/wiki/Treatyhttp://en.wikipedia.org/wiki/Treatyhttp://en.wikipedia.org/wiki/Treatyhttp://en.wikipedia.org/wiki/European_Unionhttp://en.wikipedia.org/wiki/European_Unionhttp://en.wikipedia.org/wiki/European_Unionhttp://en.wikipedia.org/wiki/ACP_countrieshttp://en.wikipedia.org/wiki/ACP_countrieshttp://en.wikipedia.org/wiki/2000http://en.wikipedia.org/wiki/2000http://en.wikipedia.org/wiki/2000http://en.wikipedia.org/wiki/Cotonouhttp://en.wikipedia.org/wiki/Cotonouhttp://en.wikipedia.org/wiki/Beninhttp://en.wikipedia.org/wiki/Beninhttp://en.wikipedia.org/wiki/Beninhttp://en.wikipedia.org/wiki/Member_Stateshttp://en.wikipedia.org/wiki/Member_Stateshttp://en.wikipedia.org/wiki/Member_Stateshttp://en.wikipedia.org/wiki/2003http://en.wikipedia.org/wiki/2003http://en.wikipedia.org/wiki/2003http://en.wikipedia.org/wiki/ACP-EU_Development_Cooperationhttp://en.wikipedia.org/wiki/ACP-EU_Development_Cooperationhttp://en.wikipedia.org/wiki/ACP-EU_Development_Cooperationhttp://en.wikipedia.org/wiki/Treatyhttp://en.wikipedia.org/wiki/European_Unionhttp://en.wikipedia.org/wiki/ACP_countrieshttp://en.wikipedia.org/wiki/2000http://en.wikipedia.org/wiki/Cotonouhttp://en.wikipedia.org/wiki/Beninhttp://en.wikipedia.org/wiki/Member_Stateshttp://en.wikipedia.org/wiki/2003http://en.wikipedia.org/wiki/ACP-EU_Development_Cooperation


43/94

whilst neither player is able to play for England, neither counts as an overseas player

either.

The Kolpak explosion reached unprecedented levels in May 2008 when 11

Kolpakers played the championship match between Leicestershire and

Northamptonshire, two counties who owe their existence primarily to central

handouts from the ECB that are intended to help them to foster the English game87.

Furthermore, a similar situation exists in French rugby union, which has up to 150

South Africans competing within its national domestic competition.88

As such it is clear that players from all over the world now consider a pathway to

perceived European riches as one with fewer hurdles. For example, Van den Bogaert

has opined that the corresponding provisions of the Europe Agreements with

Hungary, the Czech Republic, Slovenia, Latvia, Lithuania and Estonia89,must also be

considered as being directly effective. Furthermore, the same conclusion

undoubtedly equally holds true with regard to the parallel provisions in the

Agreements concluded with other European Union candidate countries such as

Bulgaria and Romania90, and Art.37(1) of the Additional Protocol to the Association

Agreement with Turkey91. He continues to state that, in his opinion, it seems therefore

only logical that sportsmen from these third countries are also entitled to challenge

before the courts of their host Member State the application to them of sporting rules

87 see - http://www.guardian.co.uk/sport/2008/may/31/cricket

88 see - http://www.ffr.fr/index.php/ffr/rugby_francais/competitions

89 Europe Agreement establishing an association between the European Communities and their Member States, and the Republic of Hungary [1993]

O.J. L347/2 (Art.37(1)); the Czech Republic [1994] O.J. L360/2 (Art.38(1)); Slovenia [1999] O.J. L51/3 (Art.38(1)); Latvia [1998] O.J. L26/3

(Art.37(1)); Lithuania [1998] O.J. L51/3 (Art.37(1)); Estonia [1998] O.J. L68/3 (Art.36(1)).

90 Europe Agreement establishing an association between the European Communities and their Member State, and the Republic of Bulgaria [1993]

O.J. L358/3 (Art.38(1)); Romania [1994] O.J. L357/2 (Art.38(1)).

91 Additional Protocol to the Agreement establishing an association between the European Economic Community and Turkey [1973] O.J. C113/18

- 43 -


44/94

such as the contested r.15 of the SpO of the DHB, provided that they are legally

employed in the Member State in question92.

The relative merits of such an opinion are strengthened further by the decision in the

case ofSimutenkov93, a Russian footballer playing for Tenerife F.C., in Spain, who

complained about the Spanish Football Federations issue of a licence to him as a non-

Community player, subjecting him to the quota for non-EU/EEA nationals. In its

judgment, the Court followed exactly the same line of reasoning as inKolpak,

enabling Simutenkov to base his claim for a Community licence directly on Art.23 (1)

of the Partnership Agreement concluded between the European Communities and

Russia.94

Van Den Bogaert has continually stated that the legal sporting landscape after Kolpak

was not completely clarified95. The Simutenkov decision however highlighted that

SGBs would now no longer be successful in defending their internal rules if they

clung to the same old motives such as the maintenance of a traditional link between a

club and its country, the training for the benefit of young players and the creation of a

sufficient pool of players for the national team.96 As a result, a campaign was

launched by the Central Council of Physical Recreation (CCPR) and the England and

Wales Cricket Board (ECB) who noted a significant influx of players who are

unqualified for England into our domestic gameandare concerned that this influx



93 Case C-265/03, Simutenkov v Ministerio de Educacin y Cultura and RFEFl [2005] E.C.R. I-2579

94 VAN DEN BOGAERT, S; Sport and the EC Treaty: A Tale of Uneasy Bed Fellows?, European Law Review, 2006

95 Ibid.



- 44 -


45/94

may have a long term detrimental impact on the performance of the National team and

does not encourage the development of young England qualified cricketers.97

3.4 CLOSING THE GATES SYMPATHY BY THE COMMISSION OR JUST

COMMON SENSE?

With the main migration traffic flowing between South Africa and England, with

almost 50 South African cricketers having now taken the Kolpak shilling98, serious

problems have emerged on both sides. Principally, players are forced by the ECB, in

an attempt to stem the tide, to promise their future to England. Gerald Majola, the

chief executive of the South African board, recently commented that the most

concerning aspect of the recent trend is that when players sign Kolpak contracts,

they denounce playing for South Africa which is problematic as Cricket South Africa

(CSA) invest a lot of money in young players and then they are lost to the system.

We would be quite relaxed about it all if they could still play for South Africa, but

sport should not be about trade agreements.99

There were, and remain, numerous concerns from SGBs across the world which lead

to a conjoined approach to the Commission, headed by the English Cricket Board.

Ultimately, and remarkably, this lead to a renouncement that the Cotonou Treaty was

designed for thefree trade ofgoods and services and should not be regarded as free

97 Community Sport: Oral and Written Evidence, House of Commons Culture, Media and Sport Committee, April 2005 p.73 see-

http://www.publications.parliament.uk/pa/cm200405/cmselect/cmcumeds/507/507i.pdf

98 http://www.buzzle.com/articles/198687.html

99 Ibid.

- 45 -


46/94

movement of labour. This statement means that all non-England-qualified players

would now officially have to gain employment with county clubs before they arrived

in England, leaving the ECB free to limit them under its normal overseas player

regulations. Nevertheless, even if the counties reluctantly accept the ruling other

parties may not and there is also the possibility that a legal challenge could come in

another sport, perhaps rugby union, as South African players qualifying on the Kolpak

loophole now predominate in France.100

As such it can be said that whilst the effect of Kolpak has potentially, in one sport at

least, been neutralised the full effects of the decision may in the long run yield

consequences which go far beyond the simple settlement of the concrete

disagreement101. Conversely, there are indications from previous judgments such as

that inDelieg102 highlighting that the Court can be rather tolerant with regard to

sports practices whichprima facie seem to be at odds with the requirements of

Community law unsurprisingly, the initial reactions from SGBs, such as the ECB,

to theKolpakruling seem to convey the impression that they willing to clutch at this

straw.

Ultimately, therefore the relationship between the ECJ and SGBs can best be

qualified as uncomfortable103 due to a lack of clarity and consistency. In the general

context of this dissertation, it is submitted by this author, that issues such as these are

problematic as it is no longer clear across all sports within the EU whom can be

employed and played in certain domestic competitions and who, for the purposes of

100 http://www.guardian.co.uk/sport/2008/may/31/cricket

101 VAN DEN BOGAERT, S; And Another Upper-Cut by the European Court of Justice to nationality Requirements in Sports

“‘England till I Die!?’ - A critical analysis of the relationship between ‘sporting’ and...

Documents

Transcript of “‘England till I Die!?’ - A critical analysis of the relationship between ‘sporting’ and...