Wednesday, June 15, 2011

Player Eligibility in the Irish Context

FIFA Player Eligibility in the Context of Ireland: The Actual Rules, the Real Facts and Dispelling the Prevailing Myths.

By Daniel Collins (

“National identity ... is the foundation of national teams.”- Ángel María Villar, FIFA legal committee chairman (June, 2011).

“No disrespect to Northern Ireland, but I would rather be playing for my country.”- Shane Duffy.

“It’s the best honour you can get to represent your country; it’s always been a dream of mine to play for Ireland.”- Marc Wilson.

“It was unbelievable, you know, making the debut for your country. Everyone from Derry wants to play for Ireland. I grew up supporting Ireland, so it was a natural choice for me.” - Darron Gibson

Within a footballing context, it is the right of Irish nationals born in Northern Ireland to declare for the team that represents their country, Ireland. It is both bewildering and inexplicable, however, how such an astounding level of confusion and ignorance still reigns over the issue of FIFA player eligibility with regard to these Irish nationals in spite of the fact that there are clear rules in place to govern it (see articles 15-18 of FIFA’s Regulations Governing the Application of the Statutes), over which an independent judicial body, the Court of Arbitration for Sport (the CAS), has provided ample clarification in a long, thorough and detailed judgment. That judgment - CAS 2010/A/2071 IFA v/ FAI, Kearns & FIFA - came as a result of the 2010 case brought by Northern Ireland’s Irish Football Association (the IFA) against a Northern Ireland-born Irish national, Daniel Kearns, who declared for Ireland’s Football Association of Ireland (the FAI). The overall aim of the IFA’s action was to challenge the right of Northern Ireland-born Irish nationals generally to declare for the Republic of Ireland.* A judgment that measures 27 pages in length might well demonstrate an innate complexity and delicacy in this issue, but when that judgment is so readily available to anyone with even a remote interest in player eligibility, there is no defence for ignorance.

One could maybe excuse the general public for not knowing any better - it is often fair to trust that those whose professional duty it is to report reliable facts and information to the masses actually know what they are talking about - but when supposedly-serious journalists and media outlets such as the Belfast Telegraph are continually getting the basics of this issue so unfathomably wrong, it is simply unforgivable. We have even seen received misconceptions, repeated and taken for granted as fact, slip into BBC articles in relation to this issue. Clueless politicians like Nelson McCausland, Northern Ireland’s former Minister of Culture, Arts and Leisure, who seek to have a say on the issue are just as guilty. In McCausland’s case, the surprising thing is that his former position entrusted the bearer with a responsibility for sport. Or could it be that certain individuals are simply trying to foment divisive social ignorance?…

This issue did not arise out of any rule change, nor is it a new development. Minutes from FIFA Players’ Status Committee held in Zurich on the 17th of May, 1994 reveal that the IFA were well aware of the eligibility of Northern Ireland-born Irish nationals to play for the Republic of Ireland at least over a decade and a half ago. The minutes read as follows:

“The Committee considered this association’s statement that almost any player can obtain a Republic of Ireland passport in order to secure eligibility to play for this country.

The Committee discussed this very serious matter at length and had to come to the unfortunate conclusion that FIFA cannot interfere with the decisions taken by any country in the question of granting passports.

The only way that the national associations could prevent their nationals from being systematically granted passports by another country to enable them to play for its national teams would be to field them in an official match for one of their national representative teams, which would bind them to this particular association”

Likewise, former IFA president and newly-instated FIFA vice-president, Jim Boyce, acknowledged the eligibility of Northern Ireland-born Irish nationals to play for Ireland as far back as January of 1999 in a meeting with his counterpart at the FAI, Bernard O’Byrne. Of the meeting, Boyce stated:

“The issue of Northern Ireland’s eligible players opting to play for the Republic was discussed at length with the FAI. It was also stressed that if a player made an approach himself, there was little the FAI could do unless FIFA was to change legislation. That, we accept. But at least we have agreed to notify one another should this happen.”

The atmosphere of the meeting was described by O’Byrne to have been “very positive” whilst Boyce declared himself as being “extremely happy” with the outcome of all items on the agenda. Clearly, the IFA’s thinking on the matter changed at some later point in time - it would appear to have been around the time of Darron Gibson’s high-profile declaration for the Republic of Ireland - although there was no reason whatsoever for them to ever assume that the situation or the effect of the rules governing this specific issue had changed.

Contrary to popular misconception, the Good Friday Agreement of 1998 has nothing to do with the application of FIFA’s statutes on Irish nationality. The Good Friday Agreement was a constitutional document agreed between the British and Irish governments after backing from the majority of the electorate in Northern Ireland that, amongst numerous other things, acknowledged and bilaterally endorsed, as an undisputed right of law, the will of members of Northern Ireland’s nationalist community to identify as Irish. It is frustrating to see it continually bandied about in discussions surrounding player eligibility, however, especially when the eligibility of Northern Ireland-born Irish nationals to play for the Republic of Ireland is being attributed to its terms. It is mentioned here in order to discount this misguided belief.

Players born in Northern Ireland have been lining out for FAI teams under FIFA rules identical in effect to those in place today before the Good Friday Agreement. Ger Crossley, Gerard Doherty, Mark McKeever and Tony Shields, for example, were all born in Northern Ireland and, qualifying via their birthright to Irish nationality, played for FAI teams between 1995 and 1997. It would have been difficult for the FAI to turn them away given they were Irish nationals, after all. Countless others have played for Irish teams between the signing of the Good Friday Agreement and the saga involving Darron Gibson that seemed to implant the issue of player eligibility in the minds of Northern Ireland football supporters.

By virtue of articles 2 and 3 of Bunreacht na hÉireann and sections 6 and 7 of the Irish Nationality and Citizenship Act 1956, Irish nationality has been available from birth to those born in Northern Ireland who have wished to have it recognised long before 1998; what the Good Friday Agreement did was provide a confirmation of the now-undisputed nature of this with bilateral endorsement, and whilst this might have changed mindsets and cleared up any misgivings in what might have previously been an area of diplomatic dispute, it had no effect on the application of FIFA regulations governing Irish nationality. The fact that Northern Ireland-born players represented FAI teams in the mid-1990s, years before The Good Friday Agreement’s signing, should demonstrate this

Arguably, had the Good Friday Agreement not been signed and a perception of Ireland’s extra-territorial nationality law as irredentist remained within the psyche of the unionist community in Northern Ireland, it might have posed a greater dilemma for a FIFA unwilling to involve itself in an argument of such an overt political nature over conflicting constitutional arrangements between two states, although they certainly gave no indication of this at the FIFA Players’ Status Committee held in Zurich in 1994 when they affirmed that they “cannot interfere with the decisions taken by any country in the question of granting passports”. If anything, what the Good Friday Agreement did was expunge any doubt as to the effect of Irish nationality law in Northern Ireland along with the validity of any potential complaint about it from the IFA, but that is all it might have done in relation to this matter.

It is also worth debunking some of the other myths that have arisen around this issue. It is often stated erroneously that FIFA’s rules on this matter invoke a requirement for a territorial link via birth, parentage or grand-parentage to the country for whom a player wishes to declare; in essence, that the player, the player’s parents or the player’s grand-parents need to have been born in the jurisdiction of the association he wishes to represent. However, this is not the case at all. In fact, it was under this mistaken premise that the IFA took their appeal to the CAS before having it rejected, as anyone with an understanding of the relevant regulations would have expected. A permanent Irish nationality not dependent on residence is what qualifies anyone in possession of it to play for the FAI’s team, as is outlined in article 15 of FIFA’s Regulations Governing the Application of the Statutes. It states:

“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.”

It is article 16, which sets out to regulate eligibility for players who qualify for more than one association on account of a single nationality they possess, most notably eligibility for the British associations, that invokes territorial criteria. However, this article has no implications for those who possess Irish nationality as Irish nationality permits those who possess it to declare for only one association; the FAI, as the national association of Ireland. Article 16 reads as follows:

“A Player who, under the terms of art. 15, is eligible to represent more than one Association on account of his nationality, may play in an international match for one of these Associations only if, in addition to having the relevant nationality, he fulfils at least one of the following conditions:

a) He was born on the territory of the relevant Association;

b) His biological mother or biological father was born on the territory of the relevant Association;

c) His grandmother or grandfather was born on the territory of the relevant Association;

d) He has lived continuously on the territory of the relevant Association for at least two years.”

To compare Irish and British nationalities in this context, Irish nationality allows a player to play for the FAI’s team only whilst British nationality, if it were not for the additional aforementioned criteria laid out in this article, would otherwise entitle all British nationals, regardless of where in the United Kingdom they, their parents or their grand-parents were born, to play for all of England, Northern Ireland, Scotland and Wales. When the two separate nationalities form a player’s “dual nationality”, they are still treated as distinct, singular entities. Likewise, they are considered by FIFA to be independent and exclusive of one another rather than as one solitary and whole plural entity that might enable its bearer to play for both a British constituent team and the Republic of Ireland. The IFA disputed this as an interpretation with the CAS, but it was pointed out that this could be the only conclusion drawn. The CAS, going into great detail in order to clear up the IFA’s misconception, stated:

“Whether the player’s multiple eligibilities are based on one single nationality and/or on two or more nationalities is disputed. The IFA submits that Article 16 is applicable to any player who is entitled to play for several associations on the basis of multiple nationalities whereas the FAI submits that it is only applicable to a player who is entitled to play for several associations on the basis of a “shared nationality”, i.e. a single nationality that entitles him to represent two or more associations.

Based on the historical interpretation, it appears that the current Article 16 implements Annexe 2 of the Regulations for the Status and Transfer of Players (edition 2005). Both provisions have a quasi-identical wording. The title of Annexe 2 (“Eligibility to play for association teams for players whose nationality entitles them to represent more than one association”) as well as the FIFA Commentary compel the conclusion that Article 16 covers exclusively the situations of players with “shared nationality”.

The fact that Article 16 applies only to players with “shared nationality” is also confirmed by its wording as well as by the systematic interpretation:

• The term of nationality is used in the singular form in the title as well as in the par. 1 of the provision, according to which “A Player who (…) is eligible to represent more than one Association on account of his nationality”. The IFA contends that the use of the singular form is acceptable English and does include individuals with more than one nationality. The Panel observes that such would not be the case in French or German. In this regard, the French version (“sa nationalité autorise à représenter plus d’une association”) and the German version of the 2009 Regulations (“Ein Spieler, der gemäss Art. 15 aufgrund seiner Staatsbürgerschaft für mehr als einen Verband spielberechtigt ist”) also use the term “nationality” in the singular form.

• Par. 2 of Article 16 expressly states that associations “sharing a common nationality” may make an agreement “to vary item (d) of para 1 of the Article”.

• As already noted, Article 18 provides exceptions to the second principle set out in Article 15. Its first paragraph begins with the following three sentences: “If a Player has more than one nationality, or if a Player acquires a new nationality, or if a Player is eligible to play for several representative teams due to nationality”. In other words, Article 18 identifies the various categories of individuals who are allowed to change associations notwithstanding the Article 15 par. 2. In such a context, it is obvious that the first sentence deals with players who have dual (or more) nationality, i.e. are in a situation falling within Article 15, the third sentence with players who fall under Article 16 and the second sentence with players who fall under Article 17. If the IFA analysis were correct, it would follow that the first and third sentences would deal with the exactly same situation, which would be inconsistent with any intelligible intention to be attributed to the rule-maker. The FAI analysis by contrast endows the Articles with a certain symmetry.”

It is true that the IFA, as permitted by FIFA, allow players who possess just an Irish passport to represent them, but when these players represent Northern Ireland, they are officially doing so in light of their right to British nationality. In this instance, their passport fulfils such purposes as identification and travel, but it does not necessarily prove possession of the only nationality under which one can qualify to play for Northern Ireland; that being British nationality. The eligibility of Northern Ireland players to play for the IFA must still otherwise be ascertained and certified by the IFA. Irish nationality does not qualify a player to play for the IFA’s teams for the simple reason that Irish nationality is provided by the law of Ireland; it is not a nationality provided by the law of the United Kingdom (or Northern Ireland).

Article 17 - the third of the four eligibility-related statutes - has no relevance to the issue of Northern Ireland-born Irish nationals as it relates to the “acquisition of a new nationality”. Northern Ireland-born Irish nationals are considered such from birth so they are not acquiring any new nationality. As a result of article 18, however, players with more than one nationality are permitted to switch association at any time a mere once, just so long as they have yet to represent an original association in a competitive senior international game. That article states:

“If a Player has more than one nationality, or if a Player acquires a new nationality, or if a Player is eligible to play for several representative teams due to nationality, he may, only once, request to change the Association for which he is eligible to play international matches to the Association of another country of which he holds nationality, subject to the following conditions:

a) He has not played a match (either in full or in 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.

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

The switching of Northern Ireland-born Irish nationals from the IFA to the FAI often leads to exaggerated claims by hysterical scaremongers within the Northern Ireland support that it will spell the death knell for the IFA as an association and Northern Ireland as a football side, or that it will lead to “footballing apartheid in Ireland”; in essence, the Northern Ireland team becoming an all-Protestant team. There is absolutely no indication, however, that this will be the case. As has been highlighted, Northern Ireland-born players have been declaring for the FAI for years, yet the IFA still remains in a secure existence. The IFA will always have players willing to line out for its sides, even if all nationalist players were to, for some reason, cease playing for Northern Ireland with immediate effect.

National identity, a particularly sensitive issue in Northern Ireland, is at the crux of the issue here and those Northern Ireland-born players who declare for the FAI are expressing their national identity by exercising their right to declare for the team representing their country, Ireland. Clearly, however, some players from nationalist backgrounds will be prepared to continue playing international football within the IFA system. Of the current Northern Ireland senior set-up, the likes of Niall McGinn, Paddy McCourt, Sammy Clingan and Chris Baird are all well known to be from nationalist backgrounds. That is their choice, whether it be for career concerns borne out of a self-interest presiding over a sense of national allegiance or it be that they can overlook the obvious hang-ups that might come with playing under the various symbolism of the IFA, be it ‘God Save the Queen’ as an anthem or the ‘Ulster Banner’ as a flag. There is no indication that any “floodgates” have opened or that there is any “exodus” in effect. The fact that there are only eleven places available in any senior international team, which inevitably results in competition, will undoubtedly lead to some players who might be mulling over a switch reconsidering going through with it for pragmatic reasons. They are within their rights to do so.

An accusation often levelled at the FAI is that it is engaged in a sectarian policy of targeting and poaching players from Catholic or nationalist backgrounds in Northern Ireland. It is claimed that this has the result of driving a wedge between the two communities. Again, there is no evidence for this whatsoever, nor is there any indication that the FAI would be unwilling to accept Northern Ireland-born Protestants into their teams. The FAI calling up Northern Ireland-born Irish nationals is neither deliberately sectarian nor sectarian in effect in that the FAI are simply accommodating the wish of Northern Ireland-born players good enough to play for the Republic of Ireland to realise their ambition. For all the FAI cares, they might as well be Catholic, Protestant or dissenter. The religious make-up of FAI teams just isn’t an issue. Nobody knows what the religious make-up of Irish international teams are because, frankly, nobody cares.

In fact, one could prove such an insulting inference wrong by pointing to the example of Alan Kernaghan. Kernaghan, who was born in England to English-born parents, but of Ulster Protestant descent, received 26 caps for the Republic of Ireland between 1993 and 1996. Kernaghan declared for the FAI after the IFA snubbed his advances due to an agreement they had in place with the other British associations at the time whereby Kernaghan or one of his parents would have had to have been born in Northern Ireland for him to qualify to play for Northern Ireland. As it was, Kernaghan only had Northern Ireland-born grand-parents.

It is true that those born in Northern Ireland who have declared for the FAI have almost exclusively been from a nationalist or Catholic background, but this is not indicative of any sectarianism on the part of the FAI; rather, it is indicative of the socio-cultural reality in Northern Ireland that distinguishes these individuals as the types who will, in contrast to those from a unionist background, naturally and primarily identify as Irish rather than as British or Northern Irish, feel an affiliation to the Republic of Ireland team and, therefore, dream to play for it one day. The FAI are merely enabling them to fulfil their wish so long as they are deemed good enough to compete in its teams. The FAI are not to blame for social division. Northern Ireland-born players declaring for the Republic of Ireland might be symptomatic of a disjointed bi-communal society in Northern Ireland, but the FAI cannot be held accountable for this. If a community of people happen to be born in Northern Ireland, but are lukewarm to the notion of partaking in the cultural escapades of the dominant society, that is not the fault of the FAI.

In this apparent era of understanding and tolerance, what is really driving a wedge between the two communities in Northern Ireland and alienating the nationalist minority is not any alleged action by the FAI, but the will of those within Northern Ireland football to deny Irishmen the right to line out for their country. Telling an Irishman he ought to be denied the right to play for his country and have his choice limited to lining out for a team that is essentially a British entity is what is divisive, provocative and insulting to nationalists. It would appear to be indicative of an intolerance of the nationalist community’s right to express itself. Social or cultural integration can never be forced. Essentially, those who demand that nationalists “integrate” are dictating, “You are British and that is it; now, do what we say and integrate.”

Accusations of poaching or theft imply the possession or ownership by someone of something stolen by another in the first place. Meanwhile, international football is a wholly voluntary endeavour. There are no contractual or legal obligations involved in its pursuit. Players do not ever become the property of associations. The best players available to an association at any one time are called up voluntarily on a game-to-game basis, receive training and instruction prior to that game and “pay” the association back with their immediate services on the pitch. They owe nothing further in return, if even that is owed anyway. Just because a player might have played for Northern Ireland at youth level does not dictate that he owes the IFA a career of service at senior level. If he declares for the FAI he will receive training and instruction for them prior to each game for them and, likewise, return the favour with his services on the pitch.

It is important not to fall into the trap of viewing Northern Ireland-born Irish nationals who declare for the Republic of Ireland as the original "property" or “slaves” of another association. As highlighted, one can only lose something if it was his property in the first place. Irish nationals born in Northern Ireland are just as entitled to play for the FAI as they are to play for the IFA, so, technically, the IFA are not really losing these players to Ireland as neither association has any more right to lay claim to them in the first place, whether they have played at any level for Northern Ireland or not. Theft also implies a sense of illegality. Everything here is fully above board and in line with the rules on the matter. Animals that are poached have no choice as to their fate. On the other hand, players who declare for the Republic of Ireland do so of their own free volition.

It is also debateable as to whether the FAI actively targets and approaches certain Northern Ireland-born players at all, even though they do happen to be fully eligible to play for Ireland. There did exist an understanding between the FAI and IFA since the meeting between Boyce and O’Byrne in 1999 that the FAI would not make the first move in approaching players that could be perceived in some quarters as IFA players. Under this agreement, it was up to the player to initiate his desire to play for the FAI.

In the case of Shane Duffy, for example. FAI youth coach, Sean McCaffrey made a point of not contacting the player in spite of obvious interest from Duffy in playing for the Republic of Ireland; Duffy had previously attended an FAI training camp and there was a considerable amount of talk in cyberspace via family members and in the local media that he would rather be playing for the Republic of Ireland. Furthermore, he even had a father from Letterkenny, meaning he would have qualified to play for the Republic of Ireland regardless of whether the criteria in article 16 applied to his situation or not, yet the FAI were only willing to engage once Duffy initiated contact to declare his intentions officially. This demonstrated how sensitive the FAI were with the issue of selecting Northern Ireland-born players. It is uncertain as to whether this “policy difference” was ever made known to Duffy who, at the time, surely felt a little confused as to why the onus would be on him as distinct from other Irish players with whom the FAI would have no problem contacting first.

Nevertheless, in light of the CAS ruling in the Kearns case, and its reaffirmation of the correct application of the eligibility statutes, there is no compelling reason as to why the FAI ought to comply with any 1999 agreement with the IFA considering the IFA brought them to court on the issue of selecting Northern Ireland-born Irish nationals for its representative sides. It would be fair to view this action as a breach of any such agreement.

The IFA’s activities have also shown them to be engaging in hypocrisy on this matter. Whilst Northern Ireland manager, Nigel Worthington, continues to completely misunderstand the nature of Irish nationalism in Northern Ireland along with the purpose of FIFA’s regulations with ill-informed and disgruntled utterances such as, “If you are born in the country, you should be representing that country”, it is not exactly as if he even adheres to his own spiel. Worthington has never held back from selecting players born outside of Northern Ireland for his sides. A brief look through the various IFA youth sides reveals a significant recruitment effort that extends not only to those eligible to play for Northern Ireland born in England or the rest of the United Kingdom, but reveals one that is focused on players such as Caolan Lavery and Jordan Watson, both born as far away as Canada and Cyprus, respectively. Current senior internationals, Oliver Norwood and Lee Camp, even played for England at under-age level before being called into the IFA’s ranks yet the IFA continue to try and take a principled stand against what they dub “poaching” by the FAI. One might claim they were surplus to requirements at the FA when Northern Ireland selected them, which apparently makes matters different, but who is to say that either player’s future development would not have put him in line for a future England call-up?

Furthermore, Worthington has even approached current England starlet, Connor Wickham, who would qualify to play for Northern Ireland through his Northern Ireland-born father, about playing for Northern Ireland whilst the English FA still patently have a very serious interest in a highly-rated prospect who has already lined out for them in all under-age teams up to under-21 level despite still being only 18. And as if that is not hypocritical enough, current Northern Ireland players, Johnny Gorman and Ryan Brobbel - both English-born but eligible by virtue of their descent to play for either Northern Ireland or the Republic of Ireland - played in the FAI’s youth set-up before switching to the IFA. In fact, it recently emerged that Nigel Worthington was keen on securing the services of Alex Bruce for Northern Ireland, who also qualifies for both associations via his grand-parentage; the interesting thing about this is that Bruce has already been capped twice in two senior international friendly matches for the Republic of Ireland and has captained the FAI’s international ‘B’ team. It is difficult to take claims of FAI poaching seriously when the IFA is happy to select players who once formed part of their neighbours’ teams. The deep irony here is that in the recent May fixture between the Republic of Ireland and Northern Ireland as part of the Carling Nations Cup in Dublin, there was only one player on the field who had switched from one of the participating associations to the other; he was Johnny Gorman of Northern Ireland.