A. Sporting nationality: challenges and recent developments
In recent years, an increase in cases of “nationality shopping”, coupled with several missed opportunities by “one cap wonders” to represent the association of their second nationality, have prompted attempts by federations to modernize their sporting nationality rules. Calls have been made for FIBA to revisit how it determines its quota of one naturalized player per national team, while, in 2020, after a two-year consultation process, FIFA introduced a set of amendments to the Eligibility Rules. A year later, FIFA issued a guide to submitting eligibility requests as well as an official commentary to the Eligibility Rules (the “Commentary”). While the new Eligibility Rules and their Commentary still contain grey areas, the panel in CAS 2021/A/8075 has now made important clarifications, as described below.
B. CAS 2021/A/8075: key findings
The award of the panel in CAS 2021/A/8075 concerned a Swiss-born footballer of Albanian descendance who had played for the Swiss national team in “non-A-level” competitions, while having registered no caps with the Swiss and Albanian “A-level” national teams. In May 2021, the AFA submitted a change of association request to the FIFA Players’ Status Committee (“PSC”) on behalf of the Player, pursuant to Article 9.2(a) of the (new) Eligibility Rules. This provision establishes the right of players to change association where, at the time of their first official match for their current association, they “already held the nationality of the association” they wish to represent, provided they have not been fielded at the “A” level with their current association.
a. The challenged decision
The Single Judge of the PSC (“Single Judge”) 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. He only obtained an Albanian passport much later into his career, whereas a certificate of the Ministry of Interior confirming his Albanian nationality did not sufficiently clarify the date of acquisition.
The Single Judge alluded in this sense to 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”.
According to the Single Judge, 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.
b. Citizenship v. nationality
The Appellants seized the CAS, which overturned the challenged decision and accepted the Player’s request for change of association. 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”.
Turning to Article 5.2 of the Eligibility Rules, the CAS panel reasoned that this provision was in line with the European Convention on Nationality, the Federal Act on Swiss Citizenship, the FIBA Internal Regulations and the general structure of the Eligibility Rules (Articles 7-9), all of which perceived nationality as a genuine link between the relevant individual and the country, which can be created only by the applicant’s desire to follow the “hereditary trail of the parents” or to “implement the genuine sense of belonging to the new country”.
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.
c. Substantial preconditions v. administrative formalities
The panel remarked that the Eligibility Rules refer to the holding of a “nationality” (as opposed to citizenship) as a requirement for representing a given association. While the Commentary stresses that proof of nationality when registering for official FIFA competitions is provided through the holding of a permanent international passport, it also recognizes that formalities which do not amount to “further administrative requirements” do not deprive a given acquisition of nationality of its “automatic” character. Whether the player holds a nationality “due to childbirth, passports and other similar certificates to obtain citizenship must be considered formalities and cannot prevent the acquisition of sporting nationality”.
The panel then turned to the Player’s change of association request and took note of a certificate issued by the Albanian Ministry of Interior clarifying that the Player had held the Albanian nationality since birth, as well as another certificate confirming that nationality had been granted to the Player due to his “Albanian origin”. The panel moreover noted that the absence of a criminal conviction and the lack of any threat to public order did not constitute “substantial preconditions” to obtaining a nationality, in the sense articulated in the Commentary. For ease of reference, paragraph 10.2.2 of the Commentary states as follows: “[w]here the relevant national law provides a substantial precondition to be met prior to the automatic grant of nationality (e.g. to abandon another nationality; a substantial waiting period following childbirth), this will be considered a “further administrative requirement”.
The panel reasoned that the requirements of Law 113/2020 constituted “negative” preconditions, as opposed to actions that would bring about a “change in legal status” due to the Player’s “voluntary and conscious choice”. They mandated neither the production of a substantive probatory document nor a positive substantive action on the part of the Player. All the Albanian Ministry of Interior had required was proof of Albanian descendance.
d. The object and purpose of the new Eligibility Rules
The panel concluded by noting that its findings were consistent with the express objective of the Eligibility Rules to avoid “excessive severity or hardship” in deciding nationality requests. In the words of the panel, “to deny the Player’s will would contradict the spirit of the rule and the very definition of nationality as outlined by FIFA, far from the undesirable ‘nationality shopping’”. The panel noted, in the same vein, that the new rules were meant to ensure that players could “complete their sense of belonging to a nation with being able to play for [their] representative team”.
The award in CAS 2021/A/8075 has clarified the following issues:
- Citizenship pertains to political rights whereas nationality implies 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 strictly relevant;
- Nationality is not determined by compliance with administrative formalities such as whether a player held a nationality certificate or a passport at the crucial time, but instead by the substantive requirements posed by the relevant country’s laws;
- CAS panels may examine a given nationality law for the narrow purpose of determining whether the requirements it poses are “substantive” or merely “administrative”/”formal”, but are unlikely to review the national authority’s actual determination on these requirements, at least absent any allegation and evidence of illegality in the process (an issue on which the pending CAS case concerning Mr Byron Castillo may soon shed further light);
- A certificate by the relevant national authority may suffice to demonstrate legal nationality, as well as its method and timing of acquisition. The possession of a passport or a birth certificate is not the decisive factor, at least in cases involving players born abroad who, as the Commentary itself recognizes, are commonly required to fulfil certain birth registration-related formalities;
- “Negative” requirements, such as the absence of a criminal conviction, do not normally qualify as “further administrative requirements” and thus do not deprive a granting of nationality of automaticity; and
- The panel in Bajrami v. FIFA was appreciative of the balance between the need to avoid cases of abuse/ nationality shopping and the possibility of excessive severity, which the new FIFA Eligibility Rules were meant to strike. Given the quasi-precedential nature of CAS awards, this “substance-over-form” approach may feed into future FIFA and CAS decisions on nationality.