Athlete eligibility and selection disputes in sports law

What criteria must athletes born overseas meet to represent their resident country? How are athletes selected, and how can they dispute selections? 

19 May 2021

Earlier this year, Scotland won the Calcutta Cup at Twickenham for the first time since 1983, thanks to a try from Duhan Van Der Merwe. The football team heads to Wembley this summer hoping to replicate the success of their rugby counterparts. The attack will likely be led by a strike pairing born in Leicester and the Gold Coast. Both these footballers qualify for Scotland due to family connections. Lyndon Dykes due to his Scottish parents and Ché Adams thanks to a Scottish grandparent.

South African-born rugby player Van Der Merwe has no such Scottish lineage. Instead he qualifies via a three-year residency that renders him eligible as a consequence of having played for Edinburgh Rugby since 2017. Is the residency criteria open in football and other sports? This article provides an overview of eligibility criteria in sport and selection challenges.

An introduction to eligibility and selection disputes

International sport tournaments generally involve either an individual or team representing a country. The first critical question when assessing eligibility is often an individual’s nationality. The competitor must be eligible to represent their chosen country in accordance with the event’s regulations. Once that criteria is satisfied, they must then be selected by that nation to participate. Both elements can often result in challenges, either to the terms of the existing eligibility criteria or, alternatively, the basis on which selection is reached.

Eligibility to represent your country

The criteria for eligibility will vary from sport to sport. For a participant to be eligible they must meet the applicable criteria set out by both the sport’s International Federation (IF) and also the National Governing Body (NGB).

FIFA, the IF for football, assessed international eligibility based on residency at its congress in September 2020. The rule regarding residency was extended to anyone over the age of 10 who has had a ‘physical presence’ in the territory for a period of five years.

World Rugby, the IF for rugby union, intends to mirror this period. Regulation 8.1(c) of the World Rugby regulations will extend the residency period from three years to five years, for uncapped players, with effect from 31 December 2021. This may lead to a drive to cap resident players. Take South African-born prop Pierre Schoeman, who has played for Edinburgh Rugby since July 2018, as an example. Schoeman will become eligible for Scotland after three years of residency is completed in July 2021. Once capped he will remain eligible. But if Schoeman is not capped by Scotland before 31 December 2021, he would then revert to becoming ineligible from January 2022 until July 2023.

The UK’s composition is different from that of many countries and this creates an added layer of complexity. In some sports athletes will compete on behalf of Great Britain and Northern Ireland, in others they will compete for their Home Nation. For example, in football the Scottish, Welsh, English and Northern Irish Football Associations are signatories to the 2009 Home Nations Agreement. The Home Nations Agreement excluded residency as a ground of eligibility for footballers. Instead an education clause was adopted for players with no family lineage to a country. This was to cater for a player that had lived in the relevant territory during their upbringing. Specifically it expanded eligibility where a player has:

‘engaged in a minimum of five years education under the age of 18 within the territory of the relevant association.’

So a footballer with no family lineage to a home nation presently has no route to becoming eligible if they are not physically present in that country by the age of 13.

The case of cricketer Jofra Archer

NGBs do review their eligibility criteria, often when presented with a player that would otherwise be ineligible. England’s thrilling triumph at the 2019 Cricket World Cup came down to a super over bowled by Jofra Archer. Archer was born in Barbados and did not move to England until 2015. Cricket’s IF, the International Cricket Council (ICC), sets out eligibility on the basis of nationality at Article 2 of its regulations. A three-year residency period is required for players not born in the country (Article 2.1.3). The England & Wales Cricket Board (ECB) was the relevant NGB in Archer’s case, but the ECB historically had a stricter seven-year residency period, which would have rendered Archer ineligible for selection until 2022. After a review in 2018 the ECB changed its eligibility period to three years, matching that of the ICC, with effect from 1 January 2019. This change allowed Archer to fulfil both the IF and NGB criteria - helping spur England to glory at the 2019 Cricket World Cup.

Selection disputes

Once eligibility is determined a participant will then need to be selected in order to compete. In advance of events such as the Olympics, objective qualification criteria are stipulated by some sports. Selections are based on returning a result at a defined threshold (e.g. time reached/distance achieved) or by finishing in a certain place at the national championships. Selections based on objective criteria typically set clear parameters for athletes, meaning that it is more difficult for competitors to challenge the selection process.

In the case of team sports, selection is often more subjective. What makes a player important is based on intangible factors. So a manager or committee of selectors will choose a squad based on their opinion of the most suitable players, rather than the players having met specific statistical criteria.

The case of sports shooter Mitchell Iles

There are selection models that involve a degree of objectivity and subjectivity. For example selections being limited to a pool of competitors who achieve a minimum threshold. Whatever the stipulated criteria, selectors may have to show the basis for reaching their final decision. This was the issue that arose before the Court of Arbitration for Sport (CAS) in the case of Mitchell Iles v. Shooting Australia (A1/2016).

Shooting Australia (SA) was to nominate two competitors for the 2016 Olympics. The criteria noted SA must nominate the athletes that it determines, at its sole discretion, either:

  1. will have the best possible chance of winning a medal at the 2016 Olympic Games;
  2. will have the best possible chance of winning a medal at the 2016 Olympic Games and where the selection of those Athletes will enhance their long-term development towards success at the 2020 Olympic Games; or
  3. whose selection will enhance their long-term development towards the success of the 2020 Olympic Games [even if those athletes do not have the best possible chance of winning a medal at the 2016 Olympic Games].

Mr Iles, then aged 17, was overlooked in 2016 for the two available slots. Instead he was listed as a reserve. Mr Iles appealed this decision on the basis SA had specifically failed to consider the development factor for the 2020 Olympics.

The respondent, SA, stated development to the 2020 Olympics was a factor they could assess, but that it was not mandatory that the body did so. SA had a sole discretion. In its judgment CAS did not accept that the discretion was an unfettered one. Rather it was governed by principles such as good faith and reasonableness both as to process and result. Once Mr Iles identified there was no mention of the development factor for the 2020 Olympics in the reasons listed, an evidential onus lay upon the Shotgun Selection Committee (SSC). The burden was on SSC to lead evidence and show that, despite that lack of mention, the factor had been taken into account. They were unable to do so and the nomination was referred back to SA by CAS. Iles was subsequently selected for the 2016 Olympics by SA in place of one of the original picks.

Seeking prompt advice

The consequence of selection decisions is often immediate and there can be limited time available to assess the decision and consider any challenge. It is important to take steps quickly when trying to remedy a selection issue, and to seek advice about the correct process for challenging the decision. In Jason Morgan v. Jamaican Athletic Administrative Association (JAAA) (OG Rio) 16/008 a Jamaican discus thrower was not selected for the Olympic team. He was only informed of this on 21 July 2016, with the Rio Olympics scheduled to start on 5 August 2016.

On 1 August 2016 the athlete appealed directly to CAS via the ad hoc division rules (the Ad Hoc Rules). The Ad Hoc Rules allow expedited referral straight to CAS when a dispute arises within 10 days of the certain international events, including the Olympics. And a panel will be convened and should reach a decision within 24 hours.

CAS noted the athlete, Mr Morgan, was informed of the decision 15 days prior to the start of the Rio Olympics. This was outside the 10-day period of Article 1. Mr Morgan should have first tried to exhaust the internal remedies set out by the JAAA. The application was thus inadmissible and failed.

Knowing the process

The COVID-19 pandemic has posed many practical problems for international sporting events. The Olympics and Winter Olympics are both scheduled to take place within the next 12 months. Qualifying events may be rearranged or criteria altered at short notice. Athletes concerned about selection should be familiar with what steps they may take and ensure they do not delay taking advice. The steps to consider are likely to be:

  • mediation;
  • following the applicable internal appeal process of the NGB;
  • considering the escalation process as set out in the regulations of the NGB; and
  • appealing to CAS.

Shepherd and Wedderburn’s Sports Law group has specialised experience of advising clients in the sport sector through arbitration. For more information please contact Matt Phillip, Head of our Sports Law group, or your usual Shepherd and Wedderburn contact.