QuoteNo Barry MaguireOriginally Posted by DannyInvincible
I'm not an expert on personality rights myself either, but such rights are taken seriously and are not mere matters of trivia.
David Casserly (solicitor acting on behalf of the FAI) submitted to CAS during the Kearns case that to deny Daniel Kearns his entitlement to declare for the FAI would constitute an infringement of his personality rights within the meaning of Article 28 of the Swiss Civil Code (see paragraph 19: http://web.archive.org/web/201107210...ard%202071.pdf). Yann Hafner, with whom I've been in touch lately on eligibility matters, also mentioned how CAS can potentially defend and enforce a player's personality rights in instances where it is felt that the restrictive application of FIFA's regulations on eligibility (especially the article 7 criteria) might be overbearing or unwarranted.
No Barry Maguire
To clarify, I'm suggesting that any case by a footballer against a FA for not selecting him would likely be trivial, not the principle of personality rights.
Although the latter make me think of Il Trap stumbling through a press conference in pidgin English and German
Surely not if there was substance to his case in the form of a functioning restrictive agreement in place directly affecting his right to request a switch of association. Even if FIFA were to over-see and approve something restrictive like that that would discriminate against one very specific category of international footballer, it wouldn't exempt them from the over-rule of the CAS operating under the law of the land. Anyway, I suppose it's all a very academic or hypothetical discussion. There won't be any internal agreement.
Short-hand in a second language? Coherency and illumination are fundamental to good communication. Those boxes were ticked for me.Although the latter make me think of Il Trap stumbling through a press conference in pidgin English and German
I don't think the agreement would affect his right to request a switch (or have that request granted), rather, the agreement (assuming it was public knowledge) would make the request pointless as he'd know he wouldn't be selected anyway.
Don't the Home Nations have a gentleman's agreement that limits their selections in some way - that is to say that although a player would be eligible under FIFA's criteria, they had their own policy? I remember it being mentioned around the time Nacho Novo was mooted as a possible Scotland international.
And didn't Northern Ireland at one point limit their selctions to players who had one NI-born parent? Pretty sure that's how Alan Kernaghan ended up with us.
Last edited by osarusan; 28/02/2015 at 3:58 AM.
Sorry, yes, the agreement would prevent him from being able to effect a switch. It is possible the associations could intend to keep it private, if they were both willing. How practical this might be, though, I'm not really sure. Would both associations then happily sign players over and give the impression of accommodating the Players' Status Committee before simply ignoring those players concerned? It would be rather deceptive behaviour and I'm sure there'd be suspicion then if quality players were then being completely ignored. I don't know how realistic keeping such an agreement private would be.
The British associations are granted express permission within the wording of article 6 to either get rid of or replace littera (d) of that article. They've replaced the article requirement for two years continuous residence with a stipulation demanding that a player has been educated for five years on the territory of the association concerned.
I'll look into the nature of the internal rule that prevented Kernaghan from representing NI when I have some time later. Not sure if it was an IFA-only rule or whether it was commonly-agreed amongst the British associations and rubber-stamped by FIFA.
The only reason why I argue that an internal IFA-FAI rule on the eligibility matter would fall foul is because CAS stated such an agreement would have infringed on the players' rights had it been in place before as the FIFA rules take primacy, whilst Casserly and Yann also speak of personality rights being breached, meaning that even if FIFA were to authorise it, players may still have a valid case.
There would be no point if it were private - it would defeat the purpose of such an agreement from NI's perspective in that the players would still no longer be able to play for them. It would need to be public, and therefore the players would not actually switch and remain eligible for NI.
Yes. I was pointing out that there is already one FIFA-approved agreement which restricts eligibility - is there a fundamental difference between the Home Nations one and the NI-ROI hypothetical agreement?The British associations are granted express permission within the wording of article 6 to either get rid of or replace littera (d) of that article. They've replaced the article requirement for two years continuous residence with a stipulation demanding that a player has been educated for five years on the territory of the association concerned.
EDIT: Also, there is already a gentleman's agreement between NI and ROI regarding the FAI not making first contact with NI-born players - is this not something that would be infringing on a player's rights already?
Are rules determined solely by any individual association allowed, or do they always have to be ratified by FIFA?I'll look into the nature of the internal rule that prevented Kernaghan from representing NI when I have some time later. Not sure if it was an IFA-only rule or whether it was commonly-agreed amongst the British associations and rubber-stamped by FIFA.
From the Belfast Telegraph:
http://www.belfasttelegraph.co.uk/sp...-28503648.html
Kernaghan lived in Bangor from the age of six but when it was discovered he had been born in Leeds to English parents — although his father’s parents were from Northern Ireland — the IFA declared him ineligible for the senior side.
FIFA rules taking primacy means that no team can impose any other criteria of their own?
Is there any reason why the Home Nations agreement doesn't fall foul of CAS?
Last edited by osarusan; 28/02/2015 at 11:45 AM.
Of course. That makes sense. I'd overlooked that rather obvious point. It would indeed defeat its purpose, as far as the IFA would be concerned, if they were to keep it private.
Just to clarify, the requirement is for five years of education before the age of 18 in the territory of the relevant association, but the Home Nations agreement is expressly permitted by article 6, so FIFA have provisioned for it in advance. Any proposed amendment must also be approved by the Executive Committee before being considered effective.Yes. I was pointing out that there is already one FIFA-approved agreement which restricts eligibility - is there a fundamental difference between the Home Nations one and the NI-ROI hypothetical agreement?
This is the wording of article 6.2:
"Regardless of par. 1 above, Associations sharing a common nationality may make an agreement under which item (d) of par. 1 of this article is deleted completely or amended to specify a longer time limit. Such agreements shall be lodged with and approved by the Executive Committee."
If that is something that is still "in force", I'm not sure, seeing as the IFA's taking of Kearns to CAS wasn't exactly in accordance with what was cordially agreed between Boyce and O'Byrne in 1999 (although I do know Sean McCaffrey refused to make contact with Shane Duffy until Duffy formally declared his intent to switch), but I don't see how this would infringe any player rights as the player would still have the right to request a switch and declare for the FAI, even if he had to first get in touch with the FAI to get the ball rolling. I don't see how there would be an obligation under the regulations, nor the law, for the FAI to first contact players who might wish to request a switch. But you're free to argue possible infringement if you can find a law that you think is being breached.EDIT: Also, there is already a gentleman's agreement between NI and ROI regarding the FAI not making first contact with NI-born players - is this not something that would be infringing on a player's rights already?
This is what was agreed:
They wouldn't be formal rules in the sense they wouldn't be FIFA-ratified. I'm sure associations can have policies or internal "rules" if they wish, but if these fell foul of FIFA's rules, FIFA's would take primacy. I think the wording of article 6.2 does leave room for doubt here though, as if to suggest that proposed exceptions might need to be specifically provisioned for and also that internal agreements or policies might require official approval post-proposal, but would that be practical if the policy was simply kept private and enforceable by the association whilst kept private? Common sense would surely say, though, that FIFA wouldn't be too bothered about anything that wouldn't amount to a breach of their regulations or the law potentially.Are rules determined solely by any individual association allowed, or do they always have to be ratified by FIFA?
Even if internal policies were permitted by FIFA's rules, but a player still felt they infringed upon his rights in some way, he might be able to initiate legal proceedings through CAS against the association concerned and FIFA. Obviously, the law by which CAS operates - Swiss law - will trump both FIFA regulations and internal association policies.
Aye, it seems the IFA policy was that unless you or a parent were born in NI, they weren't interested. Whether this was unique to the IFA though or whether that was a standard Home Nations policy applied by all four and approved by FIFA, I simply don't know. Utilising the "granny rule" was something over which we were roundly mocked in England as well, so perhaps its "taboo" nature amongst the Home Nations was the source of a policy across all four. That's complete speculation on my part though.From the Belfast Telegraph:
http://www.belfasttelegraph.co.uk/sp...-28503648.html
Not necessarily. If there is a conflict, FIFA's rules will take precedence. So if an association was to impose internal criteria, those conditions would have to be within FIFA's rules and also within the law of the land. Whether there are certain conditions that would be within FIFA's rules or whether all internal conditions that you could imagine could possibly be imposed by an association would fall foul of FIFA's rules unless sanctioned by FIFA, I wouldn't be able to say. Maybe you can think of possible examples that would be legitimate? It's dependent on whether either FIFA or CAS would see the criteria as infringing upon certain rights protected by either the regulations or the law of the land.FIFA rules taking primacy means that no team can impose any other criteria of their own?
I'm not sure. It would depend on what a player who feels his rights are being infringed upon might argue. If a court of law examined the criteria and felt they were disproportionate in limiting his free movement for labour purposes or breached personality rights or something along those lines, the court may declare them illegal if provided with a convincing enough argument. Presumably, FIFA are satisfied that their restrictive/discriminative effect would be deemed proportionate.Is there any reason why the Home Nations agreement doesn't fall foul of CAS?
Whether or not the following difference would have implications for the legal interpretation of the separate articles, I'm not entirely sure, but Yann had previously informed me that "the general purpose of article 6 is not to assess the ties of a player to a country (in the sense of a State as is the purpose of article 7) but to provide only for a rule of conflict".
Last edited by DannyInvincible; 28/02/2015 at 9:14 PM.
I am actually arguing the opposite.
If that is something that is still "in force", I'm not sure, seeing as the IFA's taking of Kearns to CAS wasn't exactly in accordance with what was cordially agreed between Boyce and O'Byrne in 1999 (although I do know Sean McCaffrey refused to make contact with Shane Duffy until Duffy formally declared his intent to switch), but I don't see how this would infringe any player rights as the player would still have the right to request a switch and declare for the FAI, even if he had to first get in touch with the FAI to get the ball rolling. I don't see how there would be an obligation under the regulations, nor the law, for the FAI to first contact players who might wish to request a switch. But you're free to argue possible infringement if you can find a law that you think is being breached.
.
The players' right to request a switch and have that switch granted would not be affected - it would still be possible, so their rights would not be infringed in the way you suggest.
The hypothetical agreement would make such a switch pointless, but not impossible.
The hypothetical IFA-FAI agreement would mean a player who did not satisfy its stipulation wouldn't be able to effect or "realise" the switch though, wouldn't it? Therein might lie an infringement.
Some more on the IFA's rejection of Kernaghan, by the way: http://www.scotsman.com/sport/footba...aries-1-677913
Not sure if it sheds a huge deal of light on the nature of the "rule" though.
In some cases a player who wants to switch will never realise the switch through never being capped. It's purely an issue of quality. There is no infringement there, I presume.
In this case there would be a policy of not selecting players, even if their quality was (subjectively) high enough that they might otherwise reasonably expect a call up. That would be an issue of policy.
Legally, would the latter be any different from a player who doesn't realise the switch through simply never getting capped by his new association because he's not good enough?
I can see where you're going...but I'm not sure about it.
Last edited by osarusan; 28/02/2015 at 11:30 PM.
Obviously, I'd prefer something a bit more reliable and concrete, but I came across a post on Scottish football forum which seems to claim that the Home Nations collectively rejected the "granny rule" until 1993: http://www.weareperth.co.uk/wapforum...kson/?p=111017
Kernaghan first played for us in 1992, before the Home Nations' policy would have changed in 1993 (assuming this info is correct).
I would agree.
Hehe, I'm not sure about it either, to be honest. It's an interesting argument. I'm primarily basing my position on the words of a CAS judgment and two independent sports lawyers. I trust that they know what they're talking about. If a court of law tells us that a certain policy or agreement would infringe upon a particular right or set of rights that it protects, I have to assume that what the court is telling us is correct.In this case there would be a policy of not selecting players, even if their quality was (subjectively) high enough that they might otherwise reasonably expect a call up. That would be an issue of policy.
Legally, would the latter be any different from a player who doesn't realise the switch through simply never getting capped by his new association because he's not good enough?
I can see where you're going...but I'm not sure about it.
Paragraph 90 of the Kearns case reads as follows:
"In any event, the alleged tacit agreement may not be used to defeat the claim of Mr Kearns, who was of course not a party to any such agreement and who, in any event, is entitled to exercise his rights as provided under Article 15 and 18 of the 2009 Application Regulations."
The court also referred specifically to "the right to a change of association" at paragraph 83, whilst article 8.3 of FIFA's regulations explicitly refers to "the right to change Associations" as well. Why refer to it as a right or talk about its protection if there is no real substance to it or if there is no distinction to be recognised between its non-protection and simply not being selected on the basis of lack of quality alone (which we know is accepted)?
I do appreciate your point; the apparent effect would identical. The means may be different, but the ends are seemingly the same, so why would there be any legal distinction? There's no obligation upon an association to select any player, after all, so you'd naturally have to wonder how a player could claim he has some right to be selected. I think, however, the matter is, more accurately, about ensuring that a player's right to be available for selection is protected (so long as whatever other existing criteria adjudged to be reasonable are satisfied). The existence of a policy - an extra unwarranted or unreasonable condition - would restrict that, whereas (non-)selection based on quality alone is accepted as a reasonable means by which to discriminate.
I do admit it all sounds like a very academic and pedantic argument on the surface, but why would the various bodies and lawyers talk about rights if what they were saying didn't have any meaning or if there was no practical significance to the words they were using? They aren't talking about these rights simply for effect, surely?
Last edited by DannyInvincible; 01/03/2015 at 2:24 AM.
Some more info on the Home Nations agreement in place until 1993 that rendered Kernaghan ineligible for the IFA: http://en.wikipedia.org/wiki/FIFA_el...ions_agreement
It must have been introduced at some point prior to 1990, if the bit below about the Herald is correct.
The Home Nations were long a law unto themselves in many ways, so I'd imagine they had FIFA approval for any restrictive internal agreements, or they just told FIFA they were going ahead with things regardless!
In spite of the existence of a set of rules with strict criteria, we have to remember that the promotion and protection (rather than the restriction) of players is also a desire of FIFA, so the organisation won't look too kindly upon policies it might deem unnecessarily restrictive, which is why any internal Home Nations agreement must first have Executive Committee approval.
The above line in bold is interesting, because as recently as 2008, regarding Nacho Novo becoming a UK citizen and playing for Scotland, the SFA comments suggested that an agreement existed (and would continue to exist) which would not allow such players (UK passport holders, but without UK parents or grandparents) to be selected:1993 agreement
The four associations met on 27 February 1993 at Hanbury Manor in Hertfordshire. The Scottish Football Association (SFA) released minutes from the meeting to the press.
"On the occasion of the meeting of the International Football Association Board on February 27, 1993 the four British associations ratified the following agreement, which came into force on February 1, 1993, on the criteria which should determine the eligibility of the player to be selected for one of the national teams of the British associations:
His country of birth.
The country of birth of his natural mother or father.
The country of birth of his natural grandmother or grandfather.
Where the player, both natural parents, and both natural grandparents are born outside the UK, but the player is the holder of a current British passport, he may play for the country of his choice."
— Scottish Football Association
http://news.bbc.co.uk/sport2/hi/foot...ls/7702704.stmThe four Home Nations have agreed to stick by a "gentleman's agreement" that will rule out any approach from Scotland for Spaniard Nacho Novo.
The Rangers striker had said he would accept a call to represent Scotland.
And England coach Fabio Capello was thought to be keen on picking Spaniards Manuel Almunia and Mikel Arteta.
But the Scottish Football Association has confirmed that the Home Nations would continue to pick players based only on bloodlines.
Novo, 29, has spent eight years playing in Scotland and admitted he would consider applying for a UK passport and switching allegiance to his adopted country, if asked.
Scotland manager George Burley refused to rule out the option of picking Novo, while SFA president George Peat was opposed to any change to the current criteria for selection.
There has been some confusion and much debate in recent days about whether or not Nacho Novo can play for Scotland," said SFA chief executive Gordon Smith.
"On one hand, the Fifa regulations say that George Burley can pick eligible players who hold a British passport - and, on the other, we have the gentlemen's agreement with the other Home Associations that says that we will pick players based on their bloodline.
"I have sought to clarify the issue. We have had discussions with the other associations in the past couple of days and I've found out that everyone is adhering to our agreement and that, subsequently, we're all going down the line that we will use bloodline as the basis for eligibility.
"Now, at some stage in the future, one or more of us may change our opinion on that - we may get together and change our decision and go for the full Fifa regulation - but, at the moment, we're all sticking to our agreement.
That is interesting. In 2008, the following would have been in effect, which would appear to have rendered Novo perfectly eligible, if I'm interpreting it correctly:
I'm not sure if the two were causally related or whether the revision was simply as a result of FIFA's 2008 regulations update, but soon after Novo was in the headlines, also in 2008, as you say, Wikipedia indicates that the four British associations came together in 2009 to close "the loophole" and came up with a "revised ruling" that "also remove[d] the possibility of ineligibility due to an foreign-born adopted player having no parental or grand-parental links to a nation". That was when the stipulation for five years of education pre-18 was added with FIFA's express approval.
Obviously, the difficulty in all of this is a theoretical impossibility in proving to FIFA or a court of law that a particular otherwise eligible player's non-selection is as a result of a clandestine (but suspected) restrictive policy on the part of an association that might breach certain player rights rather than as a result of pure quality/utility considerations on the part of the association, which are acceptable grounds for "discrimination". Even if an internal agreement or policy was public knowledge, how exactly would a player go about proving that he would otherwise have been actually considered for selection by an association (considering there is no obligation for an association to select any player or consider all eligible players) were it not for the internal agreement or policy?
The rights mentioned by CAS, FIFA, Casserly and Yann, however, must be in some way enforceable and must impose some sort of obligation upon someone. Otherwise, they wouldn't bother mentioning them. I'll try and seek Yann's opinion on this and will mention the Novo case also as it would appear the British associations were operating an agreement in contravention of FIFA's express rules at the time if what the SFA representative said was true.
Last edited by DannyInvincible; 01/03/2015 at 3:06 PM.
I came across an article from yesteryear in relation to Ruaidhrí Higgins from Limavady having been refused permission to join up with Pat Fenlon's Ireland under-23 squad by UEFA on the basis that he had "no connections with the Republic": http://www.irishexaminer.com/breakin.../mhmheymhgbkf/
Obviously, this was around the final quarter of 2007 when FIFA suffered a brief brain-fart on the eligibility matter, spawning this piece in the Irish Independent about the FAI "winning the battle" for Gibson but "losing the war" on eligibility: http://www.independent.ie/sport/socc...-26326734.html
I was never aware that any Irish national players had been directly affected by this in 2007 until I came across this Examiner article. Were any other players halted around this time? We also suspected that the Players' Status Committee might have temporarily suspended the granting of permission of players to switch between the IFA and FAI whilst the Kearns case was ongoing in 2010 as Shane Duffy's switch took a while to be processed, although we never had confirmation of this and it could well possibly have been down to nothing more than the usual bureaucracy involved in processing a formal switch between associations.
The Independent article is dated the 23rd of October and the Examiner article is dated the 30th of October. According to CAS in the Kearns case, FIFA contacted the IFA on the 5th of November to let them know that the FAI did not accept the "proposal" of the 7th of March to restrict selection to players on the basis of the then-article 16/17 criteria. On what basis was Higgins denied permission to play for the FAI then and why/how did "only a recommendation, not based on regulatory considerations but on self-imposed restrictions", seem to have some sort erroneous legal effect for a period of just under a fortnight in the latter half of 2007? Did FIFA temporarily treat the Irish birth nationality of players born in the north as if it constituted a newly acquired nationality, thus, meaning article 17 temporarily applied to the situation?
This guy on the television now in the FA youth cup semi final playing for Chelsea - seems caught in two minds. Or three!
Kyle Scott
UNDER-18S
Date of birth: 12 December 1997
Place of birth: Bath
Position: Midfield
International levels played at: USA Under-18s, Republic of Ireland Under-17s, England Under-16s
Interesting. Also has a brother called Kristian who has been with Swansea, Stoke and Leicester (where he is now) in the last few seasons.
http://www.lcfc.com/news/article/010...d-1891794.aspx
Found a thread here: http://foot.ie/threads/182896-Kyle-Scott
As I said I would, I sought further clarification on some of the matters discussed above from Yann Hafner. Yann is happy for me to outline the content of the exchanges, so I'll do so below.
Yann informed me that the FIFA Executive Committee was granted the express right to regulate on the issues of naturalised players and shared nationalities in 2003, so I wondered if that, in theory, meant that the four British associations were free to come up with whatever sort of internal or gentlemen's agreements they wished before then without FIFA interference. Yann clarified:
I outlined the case of Alan Kernaghan to him and questioned if the British associations' pre-1993 "rule" (that was obviously enforceable as it prevented the IFA from selecting him) would have required or been in force with FIFA's approval? He said he did not think so, in both cases, since it was a gentleman's agreement. He did, however, concur that such a rule would not be formally enforceable nowadays (unless maintained informally), as it would contravene the governing regulations.
I then raised the case of Nacho Novo, as it seemed to contradict this. I posed the following:
Yann responded with the following:
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