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Exclusion of whistleblowers, conflicting eligibility rules and strategic naturalisations – why it is time to change Olympic eligibility rules now

By Anna Sabrina Wollmann, University of Maastricht

 

In these last days before the Rio Olympics opening ceremony, the Court of Arbitration for Sport (CAS) and its ad hoc divisions are faced with an immense workload, dealing with matters ranging from alleged doping to issues of nationality. Especially the former has gained large media attention in the wake of whistleblower Yuliya Stepanova’s unmasking of the Russian athletics team doping practices. While the international athletics federation (IAAF) has banned the responsible Russian federation and changed its eligibility criteria accordingly to allow athletes of banned national federation to compete in athletics events as neutral athletes, the IOC has taken a different approach. Potentially seriously prejudicing the anti-doping fight and possibly discouraging other whistleblowers from coming forward and exposing illegal doping practices, the IOC has denied Yuliya Stepanova her chance to compete in Rio, while others of her compatriots might still win medals. In the future more athletes might find themselves in a similar in a catch-22 situation, when competing for a national Olympic committee is contrary to the sporting federation’s rules and they thus have to refrain from competing at the Olympics in order to maintain or further their sporting career.  

This is just the latest case of friction between IOC and sporting federations’ rules, as the latter might not be in line with the rules set down in the IOC Charter – thus giving athletes two separate guidelines to follow in international tournaments. While the IOC’s rules govern the Olympic Games, athletes might be faced with other – even contradictory – requirements at other events. 

Such instances occur frequently in the other set of cases the CAS will be dealing with extensively at the moment. In these cases athletes have qualified for the Olympic Games and are not suspected of aiding their qualifications along by medical means, yet, as in the 2000 Miranda and Perez cases [1], it is uncertain for which country they might compete. While the nationality cases at first glance seem to be more straightforward, eligibility rules in various sports feature additional requirements athletes need to fulfil in order to compete for a given country. These requirements are usually applied when the athlete has already competed internationally and now wishes to change the country of representation, either due to the acquisition of a new nationality or when a dual national wants to re-decide for which country to compete. The approaches taken by the sporting federations differ widely in details, but generally such requirements either feature a residence period or a non-competition period. The latter can be especially disruptive to the concerned athletes’ career as they may not participate in international competitions during this time. 

Moreover, there are several underlying difficulties that arise from the contradictory and conflicting sets of rules [2]: 

  • Firstly, the terminology used and the definitions of the various terms are inconsistent and contradictory when comparing not only the IOC’s rules with the ones in place for the individual sports, but also amongst individual sports. This is especially striking when it comes to the terms ‘nationality’ and ‘citizenship’. While both terms are used to describe a link between a person and a state, the exact connotations differ depending on the field of study – with citizenship usually entailing the notion of civil rights and duties in addition to the one of belonging to a country. [3] Looking at the sporting federations, there are few that do provide definitions of the terms they use – athletics being the notable exception when defining ‘citizen’ as “a person who has legal Citizenship of a Country or, in the case of a Territory, legal Citizenship of the Territory’s parent Country and appropriate legal status in the Territory under applicable laws.” [4]   Several sports, such as Volleyball and seven others refer exclusively to ‘citizenship’, [5] while a total of ten sports, amongst which are curling and fencing refer exclusively to ‘nationality’ [6]. While this might already lead to confusion, especially when no definition is provided, there are several others which use the terms interchangeably such as aquatics and thirteen others. The situation is further complicated by taekwondo and golf that deem citizenship a mere condition for nationality, or  as golf specifies that: “A competitor will be considered a national of a country if the competitor is a citizen of the country, as defined by the laws of such country,” [7]. This is contrary to the general use of ‘nationality’ and ‘citizenship’ in most legal systems ,for example under US law a person born on the outlying possession of American Samoa will acquire US nationality upon birth, but will not automatically be an US citizen [8]. 
  • Secondly, although this year marks the first time asylum seekers and refugees may compete at the Olympics, the issue remains inadequately addressed by most federations. There are currently only seven sports that have included a rule on refugees or asylum seekers and their approaches range from case by case decision (as favoured by basketball [9]) to a five year waiting period before the athlete may compete for the country of residence (in cycling [10]). With the current increase in conflicts better rules are needed that provide fast solutions and allow athletes to continue their career. 
  • Thirdly, all sports relying on additional requirements also include provisions on waiving or reducing the residence and waiting periods; for example the three year non-competition period required by judo can be cancelled completely [11].  While leniency under special circumstances is necessary, this leads to similar cases not being treated equally, as neither binding precedents are established nor is the reasoning published.  Consequently, there is no legal certainty and, what is even more problematic, discriminatory practices cannot be counter-acted. 

Besides these ‘practical’ elements, there are several aspects which give rise to concern from a legal perspective. 

  • Firstly, on top of residence and non-competition requirements some sports employ additional requirements which may contain discriminatory elements. One example is football which focuses on the biological parents’ birthplace, when determining whether an athlete with dual nationality qualifies to compete for a country [12]. This  places adopted children and foundlings at a distinct disadvantage.
  • Secondly, several Olympic sports have included a limit on changes of the country of representation, such as fencing [13] or cycling [14] which allow for only one change during an athlete’s career. Others, namely rugby [15] and football [16], allow no change after an athlete has competed in the first ‘A’ match, which is contrary to the right of changing one’s nationality in international law.
  • Finally, as very young athletes are increasingly competing at high level tournaments, the position of minors, which is not addressed by most sports, is of paramount importance. Especially in sports that do not allow for any changes, minors who do not have the legal capacity to make binding decisions are expected to do so concerning their nationality and country of representation when starting their international career. Since in fact minor athletes are not able to decide for themselves for which country they wish to compete, their parents make such decisions for them. However, children should never be bound by their own or their parent’s decisions made during their minority.

In view of all these problems and with the current window of opportunity which presents itself in the context of the doping cases, which have opened the discussion on the friction between IOC and sporting federations in both rules and policy, now is the time to consolidate the rules. 

The solution

One solution would be the introduction of a sporting licence that relies on a genuine link between athletes and the country of representation in order to prevent fast track naturalisations prior to major sporting events. The underlying principles determining these criteria have to be in line with the general standards of international nationality law, and such a sporting licence could then not be given to athletes who do not have a genuine link with the state. The rules need to refer explicitly to all modes of acquisition of nationality, ensuring that option rights and facilitated naturalisation procedures are recognised and treated akin to acquisition of nationality at birth. In addition, changes of nationality should in principle be allowed and be reflected in the country of representation, provided that the athlete has formed a genuine link with the country in question. 

With the current international crises, the issue of stateless and refuges athletes is bound to increase within the next years. Hence, a workable solution should be found for all sporting federations. In this instance the IOC has taken the lead when allowing refugees to compete at the Rio Games. Furthermore, the position of minors needs special attention and they should be able to decide freely for which country they wish to compete before they reach the age of majority. After their eighteenth birthday they need to have a chance to re-decide within the next three years without facing a noncompetition period.

Finally, in cases such as Yuliya Stepanova’s, the whitleblowers should not be punished disproportionally, but should be protected as they made a contribution to the sport and the Olympic movement as a whole. Thus, the possibility for them to also compete under a neutral flag at the Olympics should be taken into consideration, provided that the World Anti-doping agency approves. 

 

References: 

[1] Perez I, II and III v IOC- CAS OG (Sydney) 00/001,00/005,00/009, Digest of CAS Awards II, pp. 595, 625 and 651; Miranda I and II v IOC - CAS OG (Sydney) 00/003 and 00/008; Digest of CAS Awards II, pp. 607 and 645.

[2] A.S. Wollmann. 2016.‘Nationality Requirements in Olympic Sports’. Wolf Legal Publishers: Oisterwijk. 

[3] R. Bauböck, E. Ersboll, K. Groenendijk, and H. Waldrauch. 2006. Acquisition and Loss of nationality – policies and trends in 15 European states – Volume 1: Comparative Analysis. Amsterdam: Amsterdam University Press,  p. 15; O. W. Vonk. 2012. Dual nationality in the European Union: a study on changing norms in public and private international law and in the municipal laws of four EU member states. Leiden [etc.]: Nijhoff p. 19;

[4] Definitions International Association of Athletics Federations competition rules 2016-2017 in force as from 1st November 2015.

[5] Art. 5.2 Sports regulations Volleyball version: 15th May 2015.

[6] Art. 9.2.2.a FIE statues of December 2015 (wording unchanged since 2005); Art. 1 eligibility the rules of Curling and rules of competition of October 2015.

[7] Art. III. IGF nationality policy June 2014.

[8] § 308 (US Code Titel 8 1408) Immigration and Nationality Act 2011 and 8 US Code 1101; see also Downes v. Bidwell 182 U.S. 244 (1901) and Leneuoti Fiafia Tuaua, et al. V United States of America et al. Civil Case No. 12-01143 (RJL) (filed 2013). 

[9] Art. 34 book 3 chapter I FIBA rule book 2014 – 2019.

[10] Art. 1.1.033 §1 UCI Cycling regulations general organisation of E0116 Cycling as a sport part 1 general organisation of Cycling as a sport (version of 15.03.2016).

[11] Art. 13.3.1 Sports and organization rules of the International Judo Federation 2015.

[12] Art. 7(b) FIFA statutes: regulations governing the application of the statutes 2016.

[13] Art. 9.2.2.f) FIE statutes of December, 2015 (wording unchanged since 2005).

[14] Art. 1.1.033 §2a) UCI Cycling regulations general organisation of E0116 Cycling as a sport part 1 general organisation of Cycling as a sport (version of 15.03.2016).

[15] Regulation 8.2 International Rugby Board handbook as framed by the International Rugby Board last updated: 8th March 2016.

[16] Art. 5(2) FIFA statutes: regulations governing the application of the statutes 2016.