You could well be right. Indeed, the instance of an association proposing a change to littera (d) of article 7 at the FIFA Congress would not be unprecedented.Originally Posted by Blue Lou
This post - the third in a series of five consecutive and related posts documenting some very informative e-mail exchanges I had had just over two years ago now with a Switzerland-based sports law and eligibility rules specialist named Yann Hafner - is sure to be of interest to you. I'll quote the most relevant segment below, although you may find the entire post (and the other posts around it) insightful also.
I put forward [to Yann] our interpretation or presumption that naturalised under-18s qualify automatically (possibly under article 5.1 alone) without the invoking of article 7, as if their new nationality was not considered a newly-acquired one for the purpose of the regulations because it was acquired as a minor or as if the eligibility criteria simply didn't apply because they were minors, but he stated that this simply wasn’t correct as it breached the literal wording of the regulations. Minors who acquire a new nationality after birth also must ordinarily satisfy the article 7 criteria, irrespective of age. Of our interpretation, he stated:
"Such interpretation breaches the literal wording of FIFA regulations and the purpose of the rule (see the comment of Ángel María Villar Llona in the minutes [below]). You have to be aware that United Arab Emirates Federation raised the point that naturalized players are de facto banned from international competition until the age of 23 (at best) and that the Congress acknowledged this fact and vetoed a proposal of the UAEF to remove this rule (153 vote against and only 42 in favor)."
See section 12.2.2 on pages 22-23 of the Agenda for the 61st Congress in 2011 for the UAEF’s proposal to amend article 7 (then article 17): http://fr.fifa.com/mm/document/affed...011_inhalt.pdf
The UAEF sought amendment for the very reason that article 7(d) does apply to minors. They wished to see the stipulation in article 7(d) reduced to three years from five and proposed a new criterion (e) which would have rendered a player who assumed a new nationality eligible if he had "lived continuously for at least five years before the age of 18 on the territory of the relevant association".
See pages 30-31 of the Minutes of the 61st Congress for confirmation of the rejection of the proposal and the opinion of Ángel María Villar Llona who confirmed that the article was intended to apply to minors in limiting their transfer: http://fr.fifa.com/mm/document/affed...es2011_all.pdf
Yann understands that exemptions are most likely to be granted "when a player can prove he has lived in its country of naturalization for a period close to five-year, even before the age of 18". He confirmed there have been German and Australian cases (although he isn’t aware of the names of the specific players concerned), and in the latter case, he said "it is noteworthy to know that the Australian FA dropped its requested to amend the FIFA regulation just before the 2013 Congress", we presume because they were granted or promised exemptions for naturalised under-age players in return.
See section 13.2 on page 36 of the Minutes from the 63rd Congress in 2013 confirming Australia’s withdrawal of the proposal: http://fr.fifa.com/mm/document/affed...kt_neutral.pdf
He made the following very insightful points as to why FIFA might prefer a continuation of the present situation whereby exemptions are granted with article 7(d) still intact:
"In my opinion, the FIFA administration and the Player’s Status Committee are bound by the FIFA Regulations Governing the Application of the Statutes, which provides no legal basis to grant such an exception. This being, I am also of the opinion that art. 7 lit. d FIFA Regulations Governing the Application of the Statutes, although it was passed by the Congress, is probably not proportionate and thus, could be deemed illegal under EU law [https://www.academia.edu/291079/La_q..._du_Monde_2010 at para 39 ff]"
Perhaps the FIFA administration tries to prevent football players rushing to courts by granting these exceptions. If FIFA sought to apply their regulations strictly to a player who had not satisfied the five-year residency rule, Yann felt the player "could argue that FIFA regulations prevent him to seek employment in another country, thus tying him to the said country, and that it amounts to a restriction to his freedom of movement under EU law. The length of the ban could also be deemed not proportionate, especially when tied to the 18th birthday of the player".
Last edited by DannyInvincible; 12/04/2017 at 11:41 PM.
Had to smile at the way the following article was phrased: http://www.msn.com/en-ie/sport/footb...cid=spartanntp
It's not just that he's playing for Cote d'Ivoire thats the problem, no, no, it's that he picked them over England specifically. One wonders if the English press and authorities will ever be able to accept that someone with a dual background might not want to play for England.
Author of Never Felt Better (History, Film Reviews).
Ah there have been some tremendously hilarious reactions to this choice. The headline in this article is just brilliant: http://www.dailymail.co.uk/sport/foo...y-England.html
I guess the Daily Mail don't comprehend why anybody would refuse to play for a country in which the media are so on their side. Like when they looked after Zaha here: http://www.dailymail.co.uk/news/arti...er-Lauren.html
I was re reading your post from the top this page, Danny.
A legal base for exemptions from the written laws can be provided by precedent. And Fifa have a long history of issuing exemptions to their statutes.
I haven't come across Fifa giving an exemption from the 5 year residency (after age of 18) to an EU born footballer. I seriously doubt that the 'freedom of movement EU law' argument would pass muster in the context of Fifa's statutes of international eligibility. International duty is not a job, it's something else.
The examples I have seen of exemptions from article 7 are where Fifa have issued them to children of immigrants who have settled in a european country. These are children of families who have moved for basic better life motives, not just refugees or successful asylum applicants.
So much so, that it appears that the clear motive of the 5 year residency requirement is cut out luring minors away from their birth country and up the ante on senior players exploiting a previously lax 2 year residency requirement. However it is not used to 'punish' children of immigrants, these young players just have to provide evidence of their circumstances in order to get Fifa permission to declare for the country of their new citizenship.
I've no real issue with what you say there. I think Yann was just saying that the legal basis for the exemptions doesn't expressly derive from the statutes, but I don't think anyone would disagree that FIFA have a long history of issuing exemptions to their "de jure" statutes and that these deviations create what I suppose you could call de facto legal precedents.
If a player - who was born in country A (outside the EU), but who moved to country B in the EU, say, as a refugee in early childhood, and who has since acquired citizenship of country B and, consequently, the EU - is forced to remain in country B for five years after his 18th birthday in order to satisfy FIFA's eligibility regulations so as to qualify to play for country B, wouldn't that amount to a possible disproportional restriction to his freedom of movement as an EU citizen if a club in country C (also in the EU) wants to sign him?
Edit: Alternatively, if a player - who was born in country A (within the EU), but who moved to country B (also within the EU) in early childhood, and who has since acquired citizenship of country B - is forced to remain in country B for five years after his 18th birthday in order to satisfy FIFA's eligibility regulations so as to qualify to play for country B, wouldn't that also still amount to a possible disproportional restriction to his freedom of movement as an EU citizen if a club in country C (also in the EU) sought to sign him?
Last edited by DannyInvincible; 05/05/2017 at 5:35 PM.
Players with a new eu citizenship have total freedom of movement, but for representing their new country they just have to satisfy the residence requirement of that country in order for FIFA to be satisfied about their connection to the new country. There is nobody compelling that player to play international football, that it would interfere with their choice to be resident in another country to take up employment with a club there.
Interestingly enough, a UK resident can leave the UK for 2 years to work elsewhere without breaking their UK residence requirements.
International squad duty is not employment per se, it's not a civil right, also it's not in any law, except perhaps the GFA which specifically mentions that Nordies can play for the FAI..
Possibly in Irish Rugby one could say that international duty is a work contract to be 100% respected by both parties, but even so, there is no freedom of movement for the rugby player to move around the rugby nations in order to ply one's trade to another county, that player has to observe the eligibility rules.
Last edited by geysir; 05/05/2017 at 10:09 PM.
That's true, but if the association of his new country has declared an interest in him, then it's the eligibility regulation that is directly impinging upon the player's potential selection despite him having been a citizen of that country (for purposes other than acquiring footballing eligibility) since childhood. In order to become eligible for that association, he'd have to remain in the country and reject any employment offers from abroad until the age of 23, thus his freedom of movement would be restricted until aged 23 if he wishes to play international football for his new country. As Yann mentioned, such a restriction may, in his opinion, fall foul of the proportionality test.
In the majority of cases - if the eligibility regulations were ever tested in the EU courts, that is - the regulations would presumably be regarded as proportional under EU law as they would perhaps be deemed suitable and necessary to achieve a legitimate aim and considered not to be having an excessive effect on players' interests.
How so?Interestingly enough, a UK resident can leave the UK for 2 years to work elsewhere without breaking their UK residence requirements.
This is an interesting interpretation and one I think it is spot on.
I've gone cross eyed
I was just having a read through some of the original material sent to me by Yann again this morning and I thought these (Google-translated) paragraphs from a 2014 article by Patrick Oberli on Cameroon-born Breel Embolo (who acquired Swiss citizenship on the 12th of December, 2014 and who was 17 at the time I was in contact with Yann) might be of relevance or interest:
"...If FIFA applies its statutes, the Basel player [Breel Embolo] can claim to wear the Swiss jersey only on his 23rd birthday, ie February 14, 2020! And again, only on condition that he resides and plays in Switzerland until that date. An impossible scenario given the interest that its performances already generate abroad.
On the side of the Swiss Football Association (ASF), Robert Breiter, legal officer, is aware of the problem: "Of course this situation is known to us. We have talked about it, but no one has heard or wished to hear. For our association, this is the first time such a case has occurred. We're going to ask for a waiver and hopefully get it. FIFA has the opportunity to make exceptions. "
The ruling body confirms in half-words: "Indeed, there have already been exceptions to article 7, but each case is treated for itself," explains a spokesman, thus excluding the notion of jurisprudence."
There is precedent for exemptions to be made, but the FIFA spokesperson appears to be saying that each case is then treated on its individual merits rather than it being a case of any previous cases or precedents specifically influencing future outcomes, although Yann did say that, as far as he can make out, exemptions are most likely to be granted "when a player can prove he has lived in its country of naturalization for a period close to five-year, even before the age of 18".
Also, as I mentioned in one of the original posts, Yann favours the option of incorporating some new text into the regulations in order to expressly allow for the Players’ Status Committee to decide on border-line cases and grant exemptions with objective and identifiable criteria because, at present, the Players' Status Committee is legally-bound by the regulations in theory, but the practical reality contravenes this, so, in effect, when the Players’ Status Committee grants an exemption, it is acting extra-legally or outside of the regulations considering there is no express provision for such authority or such a role.
Further to this point, Breel Embolo, who, as I say above, was 17 at the time I was first in contact with Yann and was playing for Switzerland in non-competitive under-age level games before even acquiring Swiss citizenship, is an example of a player for whom the association of his new country (Switzerland) made a case to FIFA for an exemption to be granted from a strict literal application of the eligibility regulations so as to allow the player to play competitive international football for his adopted country without having to remain resident in Switzerland until his 23rd birthday whilst declining evident interest in his services from abroad. An exemption was clearly since granted by FIFA's Players' Status Committee as Embolo is now 20 and has amassed 15 caps at senior level for Switzerland, many of them competitive, since his senior debut in March of 2015. Embolo pledged his international allegiance to Switzerland in December of 2014, a week after being granted Swiss citizenship, and has also played for Schalke in Germany since joining them in June of 2016.
Whilst it's not a job, international football can have significant impact upon the financial/commercial interests of players in terms of their future value and contractual "pulling-power". Yann also mentioned (here and here) potential infringements of personality rights arising from literal applications of the regulations that are deemed overly restrictive or overbearing in respect of their practical impact upon a player:
"In my opinion, the FIFA’s Players’ Status Committee is bound by the Regulations and has to-date no authority to grant exceptions. Thus, the Congress should include this possibility in the Regulations Governing the Application of the Statutes so the FIFA practice is legally sound. In any event, a Court (the Court of Arbitration for Sport for instance) can always decide on a case-by-case basis that the Regulation should not be applied because it infringes the personality rights of a player."
In fact, an infringement of a player's personality rights within the meaning of Article 28 of the Swiss Civil Code was argued by FAI solicitor David Casserly in the Daniel Kearns case.
There's more information from Yann here on the nature of personality rights:
"Personality rights (under article 28 Swiss Civil Code) are the equivalent of constitutional rights within a private context, ie when dealing with in the relations between individuals. In a sporting context, they protect for instance the right of an individual to his physical integrity, to participate in sport at the appropriate level (in an amateur context), to engage in commercial activities (economic freedom – in a professional context), to privacy, to his name and image, etc. An infringement of personality rights is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding public or private interest or by law (article 28, para 2, Swiss Civil Code)."
The motive behind article 7(d) (formerly article 17(d)) was clarified by Ángel María Villar Llona at the 61st FIFA Congress in response to the following proposal by the association of the UAE:
Here is Villar Llona's outline of the motive behind article 7(d) in his explanation for his and the FIFA Executive Committee's opposition to the UAEFA's proposal in the minutes of the 61st Congress:
Last edited by DannyInvincible; 06/05/2017 at 9:44 AM.
Scott McTominay from Lancaster on the bench for United today against Arsenal. 20 year old striker. Stated he feels more Scottish than English and looks to be committing that way. Fair play.
Surely that is the player's choice to make, and a voluntary choice? They are not compelled to do anything, and any restrictions on their life are a result of the choices they make - based on what they want in the future.
Just as any university student who wants a degree can't complain that being forced to attend university to earn that degree unfairly limits their opportunities to live and work elsewhere.
Anyway, there's something a bit perverse in arguing that a residency clause which is there to establish a player's genuine connection to their new country is unfairly limiting their ability to get out of that country.
Last edited by osarusan; 08/05/2017 at 10:40 AM.
I appreciate the logic of what geysir and yourself are saying. Personally, I find what you say to be compelling and I'd possibly even go along with it if it wasn't for the fact that I've been told otherwise by a specialist in the area who has contacts within FIFA. That's not to say the source is correct and that his or FIFA's forecast or presumption as to how an EU court might look upon any case before them relating to the residency clause is accurate, but his opinion - which is based upon FIFA thinking, as far as I understand - carries significant weight.
I've relayed Yann Hafner's view and have tried to clarify it, but his email address (which is already in the public domain) is yann.hafner@unine.ch if you wanted to discuss it further with him and pose to him your issues with that thinking.
I see the international rugby union authority has increased its residency stipulation for international eligibility from three to five years: https://www.rte.ie/sport/rugby/2017/...le-five-years/
Agustin Pichot, the vice-chairman of World Rugby, said the change offers "a great step towards protecting the integrity, ethos and stature of international rugby" as "[n]ational team representation is the reward for devoting your career and your rugby life to your nation".
Ex-Derry and Celtic winger becomes first Irish footballer to play in South Korea
http://the42.ie/3477958
"I am the first Irish player ever to have signed for a Korean club."
Hope he samples sannakji while he is there.
Leon Reid looking to transfer to Ireland from GB in Atheltics.
https://www.rte.ie/sport/athletics/2...rinter-pleads/
Interesting hold up yet the Russians can compete as "Neutrals".
DID YOU NOTICE A SIGN OUTSIDE MY HOUSE...?
Rory Holden from Derry has signed for Bristol City from Derry City. Has been called up to the NI under 21 squad. Pity he wasn't one of the Derry lads that were recently picked by us (Daniels, Curtis). Haven't seen him play though.
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