Eligibility Criteria for Sportspersons
By Vidya Narayanaswamy
The issue of ‘Eligibility criteria for sportspersons’ assumes importance in light of dynamic models of citizenship, nationality and residency such as dual citizenship and overseas citizenship which allow persons who have lived and trained in one country to play for or represent another, by choice. In most cases, an athlete acquires dual/multiple citizenship or relinquishes her/his existing citizenship to become a citizen of the other country. Sporting bodies have devised regulations to determine eligibility for persons with strong foreign connections. A two-stage approval process applies:
1. approval from the country s/he wishes to represent; and
2. approval from the International Sporting Federation (IF) that governs the relevant sport.
Obtaining the Country’s Approval
A country’s policy on eligibility criteria for sportspersons is linked to its policy of dual/multiple citizenship. Countries that permit dual/multiple citizenship usually allow sportsperson to participate in their teams and under their name provided that the sportsperson is a citizen of such country. Countries such as South Africa, UK, USA, Brazil, France and Australia recognize dual citizenship. With respect to countries that don’t recognise dual citizenship (such as India), a sportsperson is required to relinquish his current citizenship and acquire naturalized citizenship of the country he wishes to represent. Kenya, like India, does not recognize dual citizenship.
The Indian Position
On 26th December 2008, the Ministry of Youth Affairs and Sports, vide notification number F.45-5/2008 laid down that only players who are Indian citizens may represent the country in the National teams and at international sporting events.
The notification was challenged in court by Karm Kumar, a squash player of Indian origin and an Overseas Citizen of India (OCI) when he was prevented from representing India at international squash events. The main issue that arose in this case was whether an OCI or a Person of Indian Origin (PIO) could claim a right to represent India in international sporting events.
The court held:“There is a justification in insisting that only Indian passport holders should represent India in an international sporting event. Those with foreign passports obviously owe their allegiance to the country of which they hold the passport. As long as the policy of the Government of India WPOF THE Nos.4148 & 4263/2010 does not recognize dual citizenship in all aspects, this Court cannot accept the submission that even foreign passport holders should be permitted to play for India in international sporting events. Ultimately the decision whether Indians alone should be allowed to represent India in an international event is a matter of policy of the government of India.”
It further held:“It is perfectly possible that only Indian passport holders are allowed to represent India in international sporting events whereas national events are thrown open to both OCIs and PIOs. This Court finds nothing unreasonable or irrational in these two distinct policies: one for the national tournaments and the other for international tournaments.”
The court distinguished between Indian citizenship and OCI status in that the limited nature of rights conferred on OCIs is evident from the fact that they are not granted equality of opportunity in matters of public employment, they are not permitted to vote, they are not eligible for appointment as President, Vice-President or judge of the Supreme Court or High Court, and further, may not stand for elections to become a member of the Lok Sabha, the Rajya Sabha, or any State Assembly.The court also discussed the case of Sorab Singh v. Union of India where the Punjab and Haryana High Court had permitted an OCI to represent India at an international sporting event. They had relied on a notification of the government of India granting OCIs parity of status with NRIs in the field of education, and held that participation in sporting events was covered under the ambit of education.
The court in the Karm Kumar case held that the 2005 notification could not be read so widely. Examining the notification, the court held that in the context of the educational field what it connoted was that if an NRI was granted admission to educational institutions in India, under a quota meant for NRIs, then an OCI would equally be eligible to be considered under the said quota. The intention was not to permit OCIs to represent India in international sporting events. An OCI need not be a student studying in India at all. An OCI could well be merely a resident of a foreign country of which he or she is a passport holder. The right to represent India in an international sporting event could not flow from the abovementioned notification.The case of Sorab Singh has gone on appeal to the Supreme Court of India and a judgment in the matter is pending.
Meanwhile, this issue has been addressed in the National Sports (Development) Bill, 2011 (“Bill”) which is still under review. Clause 22 of the Bill lays down that only Indian citizens (including Non-Resident Indians) shall be eligible to represent India in international sports competitions and further clarifies that PIOs and OCIs shall not be treated as Indian citizens for this purpose. And this restriction is applicable to single-sport as well as multi-sport events.
Obtaining an Approval from the Relevant International Sporting Federations
Once the athlete satisfies the citizenship criteria, the eligibility criteria laid down by the relevant sporting federation will apply. The athlete must be cleared to play by the relevant international sporting federation. Each international federation has rules governing the parameters allowing athletes to modify their eligibility. For example, for cricket, the ICC has a 4 year stand out period for a person wishing to play for another country after having played some other country subject to nationality of the player.
An excerpt from the ICC Operating Manual is provided below:
“1. A cricketer is qualified to play Representative Cricket for a Member Country of which he is a national or, in cases of non-nationals, in which he was born provided that
i) he has not played Representative Cricket for any other Member Country during the 4 immediately preceding years; and
ii) in the case where the Member Country is an Associate or Affiliate Member, the cricketer satisfies one or more of the Development Criteria in paragraph (b)4 below and the ‘quota’ requirement of (b)3.
2. A player who has resided for a minimum of 183 days in a Member Country in each of the 4 immediately preceding years shall be a ‘deemed national’ of that country for the purpose of these Rules.
3.i) Affiliate and Associate Members may not field more than 2 players in any one team who are deemed nationals under paragraph (b)2.
ii) For the purposes of this sub- rule , a player who has resided in an Affiliate or Associate Member Country for a minimum of 183 days in each of the 7 immediately pre ceding years shall be classified as a national rather than a ‘deemed national ’of that Member Country.”
Former England batsman Ed Joyce was cleared to represent Ireland at the ICC Cricket World Cup in February 2011 after being granted a special dispensation by the ICC. The ICC spokesperson said that Joyce was granted permission for his four-year standout period to be slightly reduced so that he could compete in the World Cup. He explained that this was done on the basis of exceptional circumstances and the unique facts of his specific case, which included his Irish background and his very strong ties to Irish cricket from childhood up to senior national representation. This however, was after Cricket Ireland campaigned heavily for his inclusion in the squad.
In tennis, the rules of the International Tennis Federation (ITF) state that any tennis player who is in good standing with his National Association shall be qualified to represent that country if he: is a national of that country, has a current valid passport of that country and has lived in that country for 24 consecutive months at some time and has not represented any other country during the period of 36 months immediately preceding the event.
The International Olympic Committee has addressed the issue in Rules 41 and 42 of the Olympic Charter. Rule 41 affords International Federations (Ifs) the right to establish eligibility criteria for their respective sports in accordance with the Olympic Charter. The Ifs, their affiliated national federations and the National Olympic Committees (NOCs) are responsible for the application of the eligibility criteria.
Rule 42 states that any competitor in the Olympic Games must be a national of the country of the NOC which is entering such competitor. Bye-law to Rule 42 explains that a competitor who is a national of two or more countries may represent either one of them. However, if the competitor has represented one country in any regional or international sporting event recognized by the IF, they cannot represent another country unless three years have passed since the competitor last represented his former country. This period, however, may be reduced or even cancelled, with the agreement of the NOCs and IF concerned, by the IOC Executive Board, which takes into account the circumstances of each case.
With various sports becoming more professional and national teams pulling out all stops to win, the age of the mobile sports professional is here. In search for participation opportunities in major events sportsmen and sportswomen often seek out opportunities outside countries of their birth or nationality. In this dynamic environment, consistent, clear and fairly implemented eligibility criteria can play an important role in protecting the integrity of international sports events.
© The Sports Law & Policy Centre