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Nationality in Sport: Nailing your Colours to the Mast?

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About The Author

Mark O'Neill (Regular Writer)

Mark is a graduate of the Open University, where he recently graduated with a First Class Honours in his BSc (Hons) Open Degree. Mark is currently working full time for the Financial Ombudsman Service as an Adjudicator, while also undertaking an LLM in Sports Law in Practice at De Montford University with the aim of working as a solicitor specialising in sports law.

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I am a Citizen of the World, and my Nationality is Goodwill.

Socrates

A person’s nationality can often be an emotive thing. In sport, representing one’s country on the world stage is perhaps the highest honour that can be bestowed upon an athlete.

Recent events, such as Declan Rice’s decision to declare his intention to play international football for England, despite having already represented the Republic of Ireland at full level, have brought the concept of nationality to the fore once again. Other notable examples of similar conduct include Jofra Archer opting to switch from the West Indies to play international cricket for England, and Duanne Olivier, a South African test cricketer, stating his desire to play test cricket for England. Such cases demonstrate that the issue of sporting nationality is not cut and dried.

This piece analyses the historical trends, looking at the nationality regulations of the International Cricket Council (ICC), as well as the prominent case law on the subject, to see whether the current regime is fair or in need of reform.

Historical trends in cricket

Fluidity of sporting nationality is hardly new.

One of the most notable early examples was that of Billy Midwinter, who played test cricket for Australia. Whilst touring England with the Australian team in 1877, Midwinter was virtually kidnapped by cricket legend WG Grace to play for Gloucestershire in a county championship match against Surrey, before later (voluntarily) staying to play for them until 1882. Midwinter was then selected as part of the England squad for the 1881/82 Ashes tour to Australia and played four tests, before switching nationality back to Australia in 1882.

At the time of writing, 106 people that have played international cricket for England were born outside the British Isles, such as Kevin Pietersen and Andrew Strauss (both South Africa), Nasser Hussain (India) and Ben Stokes (New Zealand). Indeed, the current captain of the England One Day International (ODI) team, Eoin Morgan, is an Irishman who had previously represented Ireland in ODIs before switching to play for England.

Nationality: The ICC Rules

In cricket, player eligibility is covered by the ICC Player Eligibility Regulations (PER), which were amended in November 2017. Article 2 PER is of particular interest for present purposes as it discusses the criteria on the grounds of nationality.

Article 2.1 states that a player is eligible to play by satisfying at least one of the following criterion:

  • 2.1.1: They were born in the country whose domestic cricket governing body is the National Cricket Federation (i.e. England and Wales Cricket Board);
  • 2.1.2: They are able to demonstrate that they are a national of that country; or
  • 2.1.3: They have been resident of that country for the immediately preceding three years.

Out of the criteria listed in Article 2.1, it is undoubtedly Article 2.1.3 which causes the most controversy. The regulations go on to define ‘residency’ as the three year period that ‘immediately precedes the date of submission of the relevant information to the ICC’. The player must show that they have their primary and permanent home in that country for that immediately preceding three year period in order to demonstrate a ‘close, credible and established link’ with that country. Factors that will be considered in establishing if such a link has been created will include whether that player owns or rents their home, and whether they have family ties which may indicate some form of permanent relationship to that country. Interestingly, it does not require legal resident status.

There is also nothing to prevent a player playing for more than one national team throughout their career. As per Article 2.2 PER, by merely serving the three year period and satisfying the residency definition, they will become eligible for national team selection in that country. A notable example of this includes Boyd Rankin, an Irishman who played one test match and seven ODI’s for England between 2013-14, before reverting back to his native country when Ireland gained full ICC membership, otherwise known as ‘test-match’ status, in 2018.

Interestingly, the note accompanying Article 2.2 states that a player from an ‘Associate Member’ that wishes to switch nationalities to represent a ‘Full Member’ does not have to fulfil the three-year residency requirement. In international cricket, there are different tiers of countries. A ‘Full Member’ is one that is deemed eligible to play test match cricket (e.g. England, Australia, India, Pakistan); there are presently 12 full members after Ireland and Afghanistan were admitted in 2017. ‘Associate Members’, which include Scotland, the Netherlands, Hong Kong and Nepal, sit on the next rung down, and are only eligible to play up to ODI or T20 (Twenty over) cricket. The result of Article 2.2, therefore, is that the Full Member nations, which have significant financial resources, are able to poach talent from the Associate Member nations with near impunity.

From January 2019, the England and Wales Cricket Board (ECB) amended their eligibility criteria to ensure that they align more closely to PER. Previously their rules stated that a player seeking to qualify would need to have completed seven years residency instead of three, but this has now been reduced to three years, but still has a requirement for a player to hold a British passport in addition to the three-year residency requirement. The ICC PER serves as a baseline for all member countries participating in ICC events, so ICC member nations have the freedom to set their own regulation, as long as they adhere to the baselines set out in the PER.

The Kolpak Regulations

Most English cricket fans will be familiar with the term ‘Kolpak’, which allows non-English cricketers to play in English county cricket without having to be registered as an overseas player. Each county is allowed to play 1 overseas player at a time, so the ability to select multiple, often international standard cricketers can improve a team and the standard of domestic cricket. Conversely, in a strange quirk of the rules, now that Ireland is a full ICC member, Irish cricketers playing county cricket that are born in Northern Ireland are technically considered overseas players despite being born in the UK.

The Kolpak ruling came from a judgment handed down by the European Court of Justice in Deutscher Handballbund eV v Kolpak [2003]. Maros Kolpak, a Slovakian handball player, was considered by his German club to be a non-EU player, and as such released him from his contract as they already had two non-EU players. However, at the time, Slovakia had an Association Agreement with the EU (a free trade treaty). The Court ruled that citizens of countries which have such agreements with the EU should have the same rights as EU nationals. Domestically, this right is provided under Section 109 of the Nationality, Immigration and Asylum Act 2002.

The Cotonou Agreement - signatories of which include South Africa, Zimbabwe, and several Caribbean and Pacific nations - allows players from signatory countries to sign Kolpak style deals with English counties without being considered an overseas player. This is subject to the requirement that the players have a valid work permit for four years or have earned at least one test cap in the past two years. This has seen some high profile South African international cricketers, such as Morne Morkel, Kyle Abbott and now Duanne Olivier, give up their international careers in search of the greater financial security of a county contract.

Any player that signs a Kolpak deal must give up his right to play international cricket for his country during the length of his contract. That player can, however, return to play international cricket on the expiry of that deal, as was the case with Jacques Rudolph, who played for Yorkshire from 2007 to 2010 before returning to play for South Africa in 2011. On the other side of the coin, a player with a three-year deal, like that recently signed by Olivier, would then qualify to play for England on expiry of the deal if he chose to make himself available for England selection.

A significant factor that has allowed sports governing bodies to restrict the influence of Kolpak is the change in interpretative stance taken by the EU. In 2008, the EU stated that Cotonou should no longer be considered to be mandating free movement of labour, but rather the free trade of goods and services instead. This allowed the UK Home Office to adapt its rules on Kolpak players, which saw a reduction in the amount of Kolpak players in county cricket. This came to a head after an infamous 2008 game between Leicestershire and Northamptonshire, in which 13 of the 22 players were not qualified to play for England.

British Nationality Law - Naturalisation

The fluidity of player nationality, demonstrated above, begs the question: is it fair that someone who has already played international cricket for one country can choose to play for another, particularly when it appears to be for purely financial reasons? Is it also correct that clubs are free to employ these players and restrict playing opportunities for young English cricketers?

The statutory basis for British nationality can be found in the Nationality Act 1981 (1981 Act), which outlines how a person becomes a British citizen. These methods include, amongst others, birth or adoption (Section 1), descent (Section 2 and Section 14), and naturalisation (Section 6). For the purposes of this article, the most pertinent of these is the acquisition of British citizenship through naturalisation.

Section 6 allows for a person of full age (aged 18 or over) and capacity (meaning of sound mind) to apply for naturalisation if they satisfy the criteria set out in Schedule 1 of 1981 Act. An applicant must be of good character, have sufficient knowledge of the English language and of life in the UK, and intend to make the UK their principal home. They must also have lived in the UK for five years or more at the point of application if not married to a British citizen; if they are married to a British citizen, this period reduces to three years.

‘Good character’ is not defined in the 1981 Act. Instead, a Home Office Guidance Paper provides that the concept requires consideration of a non-exhaustive list of factors, such as criminality, financial soundness, and notoriety (anything which casts doubt on their standing in the local community).

Once an applicant is established to have good character, they must meet the knowledge of language and life (KoLL) in the UK requirements. This stipulates that an applicant must have at least a B1 level in written and spoken English, which means that they are able to converse in everyday social and professional situations adequately.

Finally, the applicant must prove their intention to make the UK their principal home. To do so, they must show that they meet the residence requirements (spent more than 210 days a year in the UK for the five-year qualifying period), and have an established home in the UK.

Once an applicant meets all of these tests, an application for British citizenship may be accepted, although the Home Secretary can make discretionary grants of citizenship where they feel appropriate.

It can be seen, however, that there is an anomaly between the 1981 Act and the ICC/ECB eligibility rules over the length of residency required. To use Olivier’s example to highlight the potential anomaly, as he is not married to a British citizen, he would need to serve a five-year qualifying period to achieve naturalisation, but the ICC/ECB rules stipulate only a three year period. Therefore, under the ICC Rules, Olivier could be eligible, but under the ECB Rules as he would not have a British passport he would not yet be eligible as he would not have resided in the UK for a long enough period.

This is an excellent example of the sports law concept known as the ‘specificity of sport’. This originates from the ECJ decision in the case of Walrave and Koch [1974], in which the ECJ opined that purely sporting rules are considered to be outside the scope of the European treaties unless there is an economic element that would bring it under the treaty scope. National team selection is regarded as one of the best examples of a purely sporting rule. This has been confirmed and updated by cases such as Deliege [2000] and Meca-Medina [2006], in which the ECJ held that such rules can be justified by the pursuit of a legitimate objective, such as encouraging the development of young players. As such, the courts will, in effect, allow sports governing bodies to set their own selection rules.

What happens after Brexit?

With the UK’s departure from the European Union presumably due to happen in the near future, what will happen to Kolpak and non-British sportsmen once the UK leaves the EU?

The answer is currently unknown as any new immigration system will be inextricably linked to the withdrawal agreement, which is yet to be confirmed. While any new immigration system would take effect from the end of the transition period, currently set at 31st December 2020, it would likely be amended dependent on the date the withdrawal agreement is ratified by all parties, in order to allow individuals and businesses time to prepare.

At present, non-EEA sportsmen or women require a Tier 2 or Tier 5 visa from the Home Office in order to work in the UK. Most elite level sportspersons currently enter the UK with a Tier 2 visa, which allows employers to bring non-EEA nationals to fill specific jobs, and are now capped at around 20,700 annually. Brexit could mean that players from the EU could also have to apply through the Tier 2 visa scheme, which may significantly impact the number of non-UK national players. ONS figures for 2017, published in February 2018, showed that only 130 sportsperson Tier 2 visas were granted across all sports in 2017. If EU nationals are to apply for endorsement, this could lead to a significant rise in applications, given that over half of the non-British players in the Premier League alone (208) were from the EU. Research conducted by the House of Lords estimates that 332 premier league players would have to leave the UK. In Cricket, the expected future loss of Kolpak players has seen an influx of Kolpak players into county cricket, as counties seek to exploit the Kolpak rules while they are still in force.

Conclusion

Nationality has traditionally been considered a rigid concept, typically based on the location of one’s birth. But in the modern world, the idea has become increasingly fluid as people look elsewhere for opportunities, especially in the sporting sphere. The regulations in place encourage and allow for such flexibility, offering opportunities to more people to take part in professional and international sporting competition. Cricket is an excellent example of this: the ICC PER rules allow an indivudal to become eligible to represent a new country after three years of residence. The Kolpak ruling has also opened up opportunities for overseas players to play as domestic players in English competitions. Whether there will be such opportunities available in the post-Brexit world is a question that remains inconclusively answered.

While any future withdrawal agreement will detail whether the Kolpak rule is still legally applicable once the UK leaves the EU, some sports governing bodies are looking at the post-Brexit environment as a chance to boost opportunities for local talent and wean clubs off overseas talent. However, as many have argued, foreign players have done much to raise the standards of the domestic game across a range of sports, as local players get the chance to train and test themselves against higher quality players. Sporting administrators will have a tough challenge ahead to straddle that delicate balance to allow high-quality sportsmen and sportswomen to ply their trade in the UK without negatively impacting local talent. The British sporting community will do well to ensure that they’re not on a sticky wicket once the UK leaves the EU.

This article has been amended post-publication at the request of the MCC.

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Tagged: Brexit, Employment Law, European Union, Immigration, International Law, Sport Law

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