Towards a Sporting Nationality?
| Author | Olivier Vonk,Anna Sabrina Wollmann,Gerard-René de Groot |
| Published date | 01 April 2015 |
| Date | 01 April 2015 |
| DOI | http://doi.org/10.1177/1023263X1502200208 |
| Subject Matter | Article |
22 MJ 2 (2015) 305
TOWARDS A SPORTING NATIONALITY?
A S W,* O V**
and G-R G***
ABSTRACT
Introducing a ‘sporting nationality’ that is compl etely independent of the standard legal
nationality linking individuals to a state i s neither feasible nor de sirable, as the term
nationality and its connotations are broader than th e mere sporting context. Since the
literature on sport law (lex s portiva) is not cl ear about the di erences and similarities
between sporting nationality and stand ard legal nationality, the concept of sporting
nationality remains vague. is article argues that nationality should remain the
underlying tie between athletes and the ir country of representation. Instead of introducing
a sporting nationality, the recommendation is to establi sh a uniform set of rules that
provides athletes with a ‘spor ting license’ of the country of which they are national s. is
avoids confusion as to whethe r a sporting nationality entails some of the rights and duties
traditionally linked to the concept of nationality.
Keywords: citizenship; dual nationality; nationality; sport; sporting nationality
§1. IN T RO DUCT ION
As the 2016 Summer Olympic Games in R io draw nearer, the quali cation rounds in
28 sports and 41 disciplines have star ted. While t he guidelines of the respect ive sports
comprehensively set the quali cation targets , the eligibility c riteria for athletes potential ly
remain a source for disputes. Since the International Olympic Committee (IOC) and
the respective sport ing federations independently set eligibility criteria , a rather diverse
picture has presented itself. Wh ile transfers of athletes within a nationa l league and
* LL.M. (Maa stricht University), PhD cand idate at Maastricht Univer sity.
** PhD, Marie Curi e fellow at Maastricht Univers ity.
*** Professor of private i nternational law a nd comparative law at the u niversities of Maa stricht, Hasse lt and
Aruba.
Anna Sabrin a Wollmann, Olivier Vonk and Ge rard-René de Groot
306 22 MJ 2 (2015)
between leagues has be en commonplace e ven before the 1995 Bosman1 rul ing (banning
restrictions on foreign players in national football leagues) and have gained importance
ever since, the situation in international competitions remains d i erent. Athletes who
may qualify i n a country for one sport might not qualif y under the same conditions for a
di erent sport.2 is can be further complicated if issues such as change of nationality,
dual nationality or cha nges in the territor y of a country come into play. Consequently,
the idea of simplify ing this issue by i ntroducing a uniform ‘sport ing nationality ’ was
brought forward by authors such as Yann Hafner and Denis Oswald,3 whi le others
such as Dora Kostakopoulou and An nette Schrauwen4 advocate what they call a
‘participatory grow th model’, focusing on relatively exible natura lization criter ia and
residence requirements. Besides great ly streamli ning the matter of ath lete eligibility by
creating one comprehensive set of rules, a sport ing nationality could also help to combat
the mercenary tendencies of some ath letes who make use of fast track naturaliz ation
procedures in order to be able to compete for another countr y at the Olympic Games as
well as of those states wish ing to quickly att ract good athletes to i ncrease their team s’
chances of winn ing gold medals.5
It is interesting to note that apart from advocating the introduction of a sporting
nationality in t heir respective art icles, neither Hafner nor Oswa ld de ne what such a
sporting nationalit y should entail.6 Hafner only refers to Oswa ld’s claim of 2009 that an
Olympic nationality is needed which is ‘not rooted in a nd [is] thus tota lly severed of legal
1 Case C-415/93 Union royal e belge des sociétés de fo otball association ASBL v. Jean-Marc B osman, Royal
club liégeois SA , ECLI:EU:C:1995:463.
2 R.C.R. Siek mann, ‘Spor t and National ity: “Accelerated” Natu ralisat ion for National Repres entative
Purposes a nd Discrimination Issue s in Individual and Team Competit ions under EU Law’, 3–4 e
Internationa l Sports Law Journal (2011), p.85 et seq.
3 D. Oswa ld, La Nationalité dans le sport, Contributions pour le XIIème Congrès Olympique (Lausanne,
2009), p.58; Y. Haf ner, ‘Athletes‘ eligibilit y in national tea ms and EU law: What can we learn f rom
two doped swi mmers?’ (2012), https://www.ac ademia.edu/2 288313/Athletes_elig ibility_in_national _
teams_ and_EU_ law_What_can _we_learn _from_t wo_dopped _swim mers, p. 238; According to
Hafner (p. 217), other scholars such a s Dubey, Garrig ues, Guil laumé, Mestre , Simon and Van den
Bogaert are a lso in favour of such a s eparate spor ting nationa lity. However, in the cas e of Van den
Bogaert, the fo otnote mentioned by Haf ner only refers to a sport ing national ity, without Van den
Bogaert support ing this concept as a general s olution to the problems arising from at hlete eligibility
rules. See S . Va n den Bogaert, Practical reg ulation of the mobility of spor tsmen in the EU post Bosman
(Kluwer Law Internat ional, 2005), p.321.
4 D. Kostakopoulou a nd A. Schrauwen, ‘Olympic c itizenship a nd the (un)specialness of t he national vest :
rethink ing the links between sp ort and citi zenship law’, 10 Internati onal Journal of L aw in Context
Volume (2014), p.156 et seq.
5 R.C.R. Siekmann, 3–4 e Inter national Sport s Law Journal (2 011), p. 85; P.J. Sp iro , ‘ e End of Oly mpic
Nationality ’, Legal Study Research Papers Temple Universit y (2011), http://papers.s srn.com/sol3/papers.
cfm?abstract _id=1904601, p.2. One example there of was the case of the US ba sketball player Ha mmon
as described i n A. Shachar, ‘Picking W inners: Olympic Citiz enship and the Globa l Race for Talent’, e
Yale Law Journal (2011), p.2090.
6 Y. Hafner, ‘Change in nationa lity: the next B osman?’, 3 Olympic Capital Qu arterly (2008), p.1.
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