Quote:
Myself: For the sake of argument, say, if the FAI and IFA had an informal agreement whereby the FAI agreed not to select Irish nationals by birth who were born in Northern Ireland, would such a "selection policy" of the FAI be viable within the rules?
Yann: No – there is no room within the current regulatory context for such an agreement. Only associations sharing a common nationality may enter into an agreement – which must be ratified by FIFA (article 6 para 2, second sentence, of the Regulations Governing the Application of the Statutes). FIFA regulations are “mandatory rules” (ie “overriding mandatory provisions” if they were part of a national state law) in this context. National associations have no possibility to bend the rules.
Myself: This would be slightly different to the Kearns issue where Kearns' "right to switch association" was specifically mentioned and upheld. If Kearns had not first played for the IFA, for example, would he have had any enforceable right(s)?
Yann: The difficult part is always proving that there is a gentleman’s agreement in force. If it is made public or the association publicly stated that it would not select him because of an agreement, he may have had a case.
Myself: Would he, as an Irish national by birth, have had a right to be at least available for selection by the FAI?
Yann: Under FIFA regulations, he is available for selection.
Myself: The above is often suggested by unionist politicians and supporters of Northern Ireland as a "solution" to the fact that Irish nationals born in Northern Ireland are eligible to play for the Republic of Ireland, although (thankfully, I say) there's no indication that the FAI would ever consider agreeing to or employing such a restrictive policy against a certain category of Irish nationals by birth based upon the location of their birth, but, in theory, would there be anything in FIFA law (or higher) that would stop the FAI from employing such a policy like, say, the New Zealand Rugby Union does in rugby, even if it were a unilateral decision and without the IFA's input?
Yann: As you suggest, the only way would be that the FAI endorses such a policy unilaterally. FIFA would have no say in the matter.
Myself: Even if a player exercised his right to switch under article 8, hypothetically, the "losing" and "receiving" associations could comply with the administrative side of the request under FIFA regulations, but the "receiving" association could still just refrain from selecting the player on the basis of a secret agreement and nobody would know any better.
Yann: This is unfortunately always possible.
Myself: I'm not an expert in the field of personality rights by any means, but you have mentioned them in relation to Breel Embolo and they were also mentioned in the Kearns case by Kearns' solicitor, David Casserly; what sort of obligation might such rights impose upon associations/FIFA? Could they potentially prevent an association from adopting a unilateral selection policy (so long as the policy was known, in order for an affected player to bring an action against it)? Could Novo have viably claimed his personality rights were being infringed upon by the seemingly-informal British associations' agreement at the time, for example?
Yann: 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).
In Novo’s case, he certainly did not consent to the infringement of his personality rights and there was no law (enacted by the State) addressing the issue. It was thus left to the concept of overriding private interest to decide on the matter. This means, that the national association posing a ban on Novo would have had to explain to a Court why it did so and to prove that its interests were of superior value than the rights of Novo to be available for selection.
Myself: If FIFA were to legally provide for a formal agreement between the FAI and IFA under special circumstances in relation to the selection of Northern Ireland-born Irish nationals by the FAI (as FIFA did seem content to do during 2007, although such consideration was discarded by 2008 once the nature of the Irish situation and Irish nationality became clearer to FIFA), would an Irish national player born in Northern Ireland who sought to play for the Republic of Ireland on the basis of his nationality have a viable case if he alleged unreasonable discrimination (disproportionality perhaps?), an infringement of his personality rights or something along those lines? After all, it would be a situation whereby certain nationals by birth of one country were being treated differently under the rules from all other nationals by birth globally, simply on the basis of the location of their birth (in Northern Ireland).
Yann: FIFA is bound by its regulations. As previously stated, only associations sharing a common nationality may currently enter into a specific agreement. Thus, the player would simply have to point out to the Court that there is no legal basis for this agreement and that FIFA has no authority to ratify it. The argument resorts to the law of association (under article 75 Swiss Civil Code). In addition, the player may also raise the argument of the infringement of his personality rights.
Myself: If FIFA expressly regulated/provisioned for a restrictive agreement between the FAI and IFA that denied Irish nationals the opportunity to be selected by the FAI, would that nullify the viability of any possible case that an affected Irish national player born in Northern Ireland might have against the associations/FIFA?
Yann: That would not nullify the viability of the case per se. In your hypothesis, the player could only rely on the infringement of his personality rights to argue his case (he is prevented from playing for what he feels “his country”). He could not resort to the law of association.
