Football- is it time to introduce protection for national associations concerning players with dual-eligibility?

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The recent decision of Declan Rice to commit his senior international football future to England, despite having played three non-competitive senior internationals for Ireland, has brought FIFA’s eligibility rules under the spotlight from many quarters- from fans, current and former players, and of course the media.

Mr. Rice’s move has been greeted largely with dismay by Irish fans, and with understandable delight by English fans and media, and with some justification. Many players, commentators and fans have been lavish in their praise of West Ham United’s midfielder, and indeed newest England international, having made his debut against the Czech Republic on 22 March 2019.

Certainly, Mr. Rice is not the first footballer to switch his sporting nationality, and most certainly won’t be the last1. While traditionalists may find it objectionable for a player to switch his international allegiance2, especially having represented one nation at senior international level, under FIFA’s present rules Mr. Rice is permitted to do so, and indeed is switching his international allegiance to the country of his birth, having being entitled to represent Ireland by virtue of his Irish-born paternal grandparents.

Before FIFA’s reform of the rules concerning eligibility in 2004, a player who played a competitive international3 for a nation, even at underage level, was tied to representing that nation for the rest of his career, even where his career did not develop to the point where he was considered good enough to play for that country again. Thus, he was unable to play for another nation for which he was eligible, despite his international career effectively being in abeyance.

However, FIFA’s current rules allow players whose international careers may have come to a premature halt to resurrect their international career with another nation for whom they may be eligible, on the proviso they have not played a competitive senior international for their first nation.

It is the purpose of this article to briefly review the current FIFA rules regarding eligibility for international football, and to propose an approach which may protect national associations when considering the selection of players with dual eligibility, without deleteriously affecting the rights of players to switch their international allegiances.

Current FIFA rules

FIFA’s current rules, as introduced in 2004, reflect its desire that players shall not be prevented from playing international football for one nation by virtue of having played for another nation.

The basic principle, as outlined in Article 5.1 of FIFA’s Statutes (August 2018 edition), is that “any person holding a permanent nationality that is not dependent on residence in a certain country is eligible to play for the representative teams of the association of that country”.

In addition, Article 5.2 provides that subject to exceptions provided for in Article 8 (discussed below) “any player who has already participated in a match (either in full or in part) in an official competition of any category or any type of football for one association may not play in an international match for a representative team of another association”.

Article 6 deals with a player who may represent one or more nation (apart from a nation for which they hold permanent nationality), where if, in addition to holding nationality, he meets at least one of the following criteria, as outlined under Article 6.1:

“ [….]

1. He was born on the territory of the relevant association;

2. His biological mother or biological father was born on the territory of the relevant association;

3. His grandmother or grandfather was born on the territory of the relevant association;

4. He has lived continuously on the territory of the relevant association for at least two years4”.

Article 7 deals with situations where a player acquires a new nationality by reference to Article 5.1, and has not played international football in accordance with Article 5.25. He too shall be eligible to play for his new nation provided that one of the following conditions are met:

“ [….]

1. He was born on the territory of the relevant association;

2. His biological mother or biological father was born on the territory of the relevant association;

3. His grandmother or grandfather was born on the territory of the relevant association;

4. He has lived continuously for at least five years after reaching the age of 18 on the territory of the relevant association”.

Article 8 governs the controversial issue of switching international allegiance. If a player through the operation of Articles 5, 6 and 7 may represent more than one country, he may (but once only) request to change the association for which he is eligible to play for, provided that:

“ [….]

1. He has not played a match (either in full or on part) in an official competition at “A” international level for his current association, and at the time of his first full or partial appearance in an international match in an official competition for his current association, he already had the nationality of the representative team for which he wishes to play.

2. He is not permitted to play for his new association in any competition in which he has already played for his previous association”.

Nonetheless, while the current rules allow players to resume their international career with a second nation, they allow players to progress their career under the banner of one nation before switching to another country, if they consider their professional development is better served representing the latter nation.

Notwithstanding a player’s entitlement to do this, and aside from any financial cost to the first national association, it is understandably a contentious issue.

Aside from any discussions on nationality (which are essentially complex, subjective and personal to each player), from a purely sporting aspect it is questionable, in the long-term, how the integrity of international football is to be maintained if a player could theoretically represent two different nations within less than one calendar year.

A possible approach in football, based on a little-known World Rugby regulation, will now be outlined which may assist national associations in protecting themselves concerning selecting players who qualify, under the criteria outlined in Articles 6 and 7, to play for its national team.

World Rugby Regulation 9.38

World Rugby Regulation 9.38 (the “Regulation”) provides that where a player with dual eligibility is contracted to a national association (whether directly with the national association itself, or indirectly via a sub-national provincial or regional team), it may the request, in the context of its employment relationship with the player, that the player commits his international future to the country of that national association for the term of their agreement.

Crucially, the Regulation provides that the player must be at least 18 years old, and further must execute a certification to confirm that he received independent legal advice on the terms of the agreement with the national association, while expressly acknowledging that he was foregoing his right to represent any other nation during the course of his employment relationship with the national union.

Before proceeding, one important distinction needs to be mentioned.

In rugby union, in nations such as New Zealand, Australia, Ireland and Wales, players are contracted directly or indirectly with their national association.

This is of course not the case in football, where players are contracted by their clubs and the relevant national associations have very limited rights in relation to these players, outside of having the right to select them for international matches and being able to insist (on pain of sanction by FIFA) that such players attend international matches for which they are requested to attend, unless unavailable through injury.

Thus, given the absence of an employment relationship between a national football association and a player, a national association cannot insist as of right that it may enter into an agreement with a player in respect of securing his international allegiance.

Nevertheless, outside of any employment relationship, a national association can reasonably argue that they have invested or will invest substantial sums in training and developing players, and are thus entitled to protect their investment (both in financial and technical terms) in the development of players, as well as the integrity of their national teams. Indeed, a scheme of compensation was recently mooted by FIFA’s Victor Montagliani as one potential remedy where a player goes through the training system of one country, before switching to another country.

Under the current rules, a national association may only definitively ensure a player is tied to representing its country if the player represents its senior international team in a competitive match. While the current rules are open to manipulation by players and agents, equally so they may be manipulated by national associations, giving rise to a possible scenario where a national team may field a promising young player for a short period of a match, thus tying him to that country with no possibly to switch nationality afterwards.

The strictness of this approach was demonstrated in the case of Munir El Haddadi, who despite playing 15 minutes of a competitive international for Spain in 2014, was refused the right to switch his sporting nationality to Morocco in May 2018, despite Mr. El Haddadi not having represented Spain in the in the intervening time.

If FIFA were to provide in football for a similar provision to the Regulation, whereby a player who qualifies to play for a nation under Article 6 or 7 would commit in wiring to representing the national team of that national association and waive the opportunity to represent another country for which he is eligible (including where he holds permanent nationality), my suggestion is that it would be entirely optional and non-compulsory on the part of both the national association and the player.

If a player did not enter into such an agreement with a national association, then his right to switch to another national association under Article 8 would of course be unaffected.

However if the player refused to execute such a declaration following a request to do so by the national association, while the national association may continue to select and field the player, it may reasonably consider itself be on notice that the player does not foresee a long-term commitment to playing for the country.

As with the Regulation, it would be vital to ensure that the similar conditions are met- that the player is at least 18 years old, has received independent legal advice and is fully cognisant that he is foregoing the opportunity to switch nationalities under Article 8.

It is vital, from the player’s perspective, that he is fully cognisant of the ramifications of executing such a declaration.

Conclusion

As stated previously, the FIFA’s current rules regarding player eligibility sought to accommodate a changing world where people may have several nationalities, and therefore to accommodate the right of players to play for nations other than a nation of their birth.

Of course, it is the right of any player to play for any nation for which he is entitled to under FIFA rules.

However, I argue there is a competing right on the part of national associations (especially those of small nations) to ensure the integrity of their national teams are respected, which should be balanced against the rights of the player.

A national association should be entitled to make enquiry to ensure that any player with dual nationality who wishes to play for its representative teams, regardless of the level, is doing so with the intention of representing that nation on a long term basis, and not simply on a short-term basis to further his career with another nation.

The cost to a national association when a player exercises his right to switch nationality under Article 8 is both literal and figurative. Literal in the sense of the finance invested in developing and training the player when participating in international training, matches and tournaments, and figurative in the sense of costing another player, entirely committed to that nation, exposure to such development.

While requesting a player to sign a declaration to commit to playing international football for one nation and waiving the right to play for another nation may seem draconian, the player in question would be under no obligation to do so and would still retain his right to switch nationality under Article 8.

I contend that it would enable national associations to discern in a practical manner whether a player is sincere in his desire to represent that nation, and additionally would operate to protect the international careers of players who are sincerely committed to representing that country, and have already done so, whether being eligible for that country by birth or heritage.

As a coda, while Mr. Rice played his second international match for England on 25 March 2019 against Montenegro, on the following day Glenn Whelan played for Ireland against Georgia. Had Mr. Rice declared for Ireland, it doubtful Mr. Whelan would have played for Ireland, as they effectively play in the same position.

For so long the subject of criticism from Irish fans for his perceived lack of adventurousness as a midfielder, in his eighty-sixth match for Ireland, Mr. Whelan showed aspects of his game which won him a new and overdue appreciation from the Irish media and public. It is submitted the rules regarding eligibility should be amended as set out above to protect players like Mr. Whelan, and many more like him, who are entirely committed to playing international football for one country, while still retaining the inherent right of players like Mr. Rice, and many more of dual nationality, to switch their international allegiance.

By Jonathan Collins, Irish-qualified solicitor and a Senior Associate at PwC Legal Luxembourg.