Nationality is defined in its general sense as "the legal bond that links an individual to a given State." (INSEE). As per the The Hague Convention of April 12^th 1930, only the State can attribute nationality. Each state has the sovereignty to lay down the rules governing the attribution of its nationality and thus determines who are its nationals. Most commonly, nationality is acquired by birth (jus soli) or by parental affiliation (jus sanguinis), or it can be obtained via naturalization. This involves making a request to that effect, and typically it also requires compliance with residence requirements or even proof of good conduct, good health, sufficient income, real estate holdings in the respective state or sufficient knowledge of the country's language and culture. These requirements are sometimes relaxed when it is in the interest of the State, which is notably the case for athletes.

Why does nationality matter in sport?

In sport, an athlete’s nationality matters for two reasons. It is a criterion for eligibility for a country's representative team. It can also be of importance to clubs, since most leagues have set up quotas that limit the number of foreign players in order to balance competitions and protect the training of young players. In both cases the sports legislator pursues the same interest, that of protecting the integrity of its competitions by assuring a genuine representativeness of athletes.

On an economic level, the effects of nationality in sport are just as tangible. The Walrave & Koch, Bosman, Malaja, and Cotonou legal agreements, among others, have contributed to the process of globalization of professional sports, giving rise not only to the deregulation of the transfer market with high mobility of players, but also to the emergence of the naturalization market. Athletes are looking for profitable careers, while federations or clubs want to recruit talent without being limited by quotas to which they would be subject.

An athlete’s nationality can shape their career, it is negotiated and merchandised; it contributes to assessing the market value of the athlete with regard to the salary to which they may be entitled or the transfer of which they may be the object. This means that nationality has become a financial asset. When athletes acquire a nationality without having an indisputable link with their new state, this is perceived as a threat to ethics as well as to competitive balance. So what are the strategies of international federations, in terms of regulations, as well as those of national actors (federations, states), local actors (clubs), and of athletes themselves?

Athletes: Athletes are the main “human resource” of this system. They have to optimize their (often short) career, but at the same time they are subject to conflicting institutional forces.

International federations: As holders of the legislation power, they must ensure the integrity of the sport(s) they regulate. Although they are unable to fully prevent the naturalization market from existing, international federations try to impose regulations in order to preserve the image and fairness of their disciplines.

National federations: They maintain a certain ambivalence. Internally, they are the guarantors of the fairness of the competitions they organize and must therefore ensure that quotas for foreigners are applied. At the international level, national federations sometimes “recruit” athletes to be naturalized in order to get their national teams obtaining better results.

At the national level, clubs desire mobility on the transfer market, because their revenues are generally correlated to sports results, and their logic is based on the quality of the show offered to the fans. Faced with quotas set by national federations, they may be tempted to apply for the naturalization of their non-European players, or to recruit players from a young age and integrate them into their training centers so that they are considered "locally trained players".

States: As the only authorities capable of granting nationality, states sometimes override their own laws and grant nationality to players they deem capable of helping them shine in the sporting world.

After a long period when the political dimension of sport prevailed over other considerations, the increasing globalized economic importance of sport has brought the issue to the center of the debate. Will this process of globalization reduce the scope of nationality in sport, as is the case in other sectors? Sports international federations legal answers remain generally conservative on this issue, with a liberal exception that deserves to be studied: that of World Rugby (WR).

National teams’ eligibility criteria: Rugby as a model for the future?

While international federations have in general based their eligibility criteria on legal nationality, a noteworthy exception is that of WR. WR allows resident-foreigners to play for a national team even when they are not citizens of the country it represents. This definition of nationality is based on how authentic the link between the players and their national team is. In the WR’s view, this is a necessary condition both for maintaining the interest of international competitions and for preserving their integrity.

The WR's sporting regulations are unique in that legal nationality is not a criterion for eligibility for the national team. Instead, the players can play for the national team of any country where:

- They were born, or;

- One of their parents or grandparents was born, or;

- They have resided for 60 consecutive months that immediately precede their first selection. This implies that they cannot opportunistically choose among all the countries in which they would be eligible.

The WR's goal is to ensure that there is a real, effective, credible, and secure link between the player and the country they play for. Disregarding legal nationality, which is not always a guarantee of a player's attachment to a national federation, the WR does not take into account the player's origin (national or foreign) so much as their degree of integration or assimilation into the country, within its structures and sporting traditions. Thus, preventing any expeditious and opportunistic naturalization procedure, the WR regulations guarantee a certain authenticity of the player’s eligibility criteria.

What should regulation of players’ nationality look like

There are three aims that regulation regarding athletes’ nationality needs to achieve (Alem, 2020):

- It needs to guarantee fair treatment of athletes and put their interests first.

- It needs to respect the authenticity of the link between the athlete and the country they play for.

- It needs to regulate mobility in order to protect the fairness of competitions and to prevent “muscle drain”, the move of talented athletes from disadvantaged countries to more advantaged ones.

The downside of regulation may be, at an initial stage, the possible acceleration of the "muscle drain". An alternative to curbing "transfers" between countries would be the introduction of a compensation system: if an athlete competes for a national team of a country where they have not been trained for at least three years before their 18th birthday, the host federation will have to pay training fees to the athlete’s home federation, to be determined based on the cost of the sport concerned. While this may seem to encourage transfers of minors (who may aspire to play in better national teams once they reach adulthood, without any restriction), the transfer of minors is highly regulated by international federations.

The system would be based on the model of compensation paid to training clubs, introduced by FIFA in 2001. In the short term, this solution will probably not allow the phenomenon of sports migration to be curbed and could even legitimate and boost it. In the long term, however, it would be a financial resource for federations in less favored countries, which could help them to convince their athletes not to leave anymore. Once an athlete over the age of 18 has played even a single game for a national team, they will not be able to play for the national team of a different country in the future.

This proposal aims at unification and not uniqueness; even though it aims at harmonizing the rules of all international federations, the rules remain flexible according to the specificities of each sport.

Conclusion: International sports federations, taking the lead in history?

The purpose of international sport federations is to facilitate competitions between different countries. However, what allows an athlete to compete for a particular country could be reinvented. Thus, international federations would gain autonomy by establishing their own concept of nationality, based on harmonized criteria.

On the political level, in the face of the rise of identity-based tensions, a reinvention of athletes’ eligibility criteria could be a real driving force of history. This would mean, in particular, doing away with the use of legal nationality as a criterion for selecting athletes. A unified definition of eligibility criteria for national teams would come into being, one which would be more faithful to the realities of the field, and more aligned with the interests of athletes.

References:

[1] Alem, A. (2020). Globalisation de l'écosystème sportif : les parties prenantes entre héritages politiques, régulations juridiques et enjeux économiques (Doctoral dissertation, Institut d’Administration des Entreprises, Université Caen Normandie)