Dual Citizenship in Sports-Related Disputes
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The presence of dual citizenship in sports is a fairly common and customary phenomenon. Athletes of different types are often citizens of two or even three states. The grounds for obtaining a second citizenship for athletes vary from the right of origin and naturalization to an invitation to the national team of a foreign state. Along with the range of opportunities that dual citizenship provides to an athlete, it often creates many problems in resolving disputes at various levels. In this article, we will discuss the CAS practice, as well as specific cases that have arisen among athletes with dual citizenship.
CAS 2010/A/1996 Omer Riza v. Trabzonspor Kulübü Dernegi & TFF
In January 2006, Omer Riza, who has dual citizenship of United Kingdom and Turkey,(the Player) and Trabzonspor Kulübü Dernegi (the Club) signed an employment contract. The file contained an employment contract effective from 17 January 2006 until 30 June 2008 with an option in favour of the Club to extend the term until 30 June 2009 (the supplementary contract) and a standard players employment contract effective from 18 January 2006 until 30 June 2009 (the standard contract).
On 4 January 2008, the Player sent a notice of termination to the Club alleging just cause based on non-fulfilment by the Club of its contractual obligations.
By letter dated 19 February 2008 FIFA acknowledged receipt of a fax from the Player dated 11 January 2008 with enclosures in relation with the dispute between the Player and Trabzonspor. In this letter FIFA informed the Player – on behalf of the Dispute Resolution Chamber – that FIFA “cannot intervene in matters between two parties of the same nationality, but has to refer them to the decision-making bodies of the relevant member Association”. [1]
Supplementary Contract contained a provision, establishing the possibility of challenging the contract in accordance with Turkish legislation. Thus, there was no arbitration clause, that may direct the dispute to the Court of Arbitration for Sport (CAS).
Omer Riza argued that the dispute contained a foreign element, as required FIFA Regulations to solve the dispute. However, the dispute was based on the notice of termination dated 4 January 2008 sent by the Player to Trabzonspor, where Omer alleged just cause based on the non-fulfilment of the contractual obligations by the club. Nevertheless, the Player argues that the foreign element exists and that the dispute is related to an ITC, because he signed an employment contract with the English club Shrewsbury Town FC on 15 February 2009, at about the time of the Player's appeal to the Arbitration Board. Nonetheless, the agreement with the Shrewsbury Town FC came onto the scene more than thirteen months after the player's notice of arbitration. The CAS Panel concluded that there was no foreign element involved in relation to the dispute. To justify their statement, the Panel referred to the Article 14 of the ATB Regulations, that clarifying the distinctive features of a person with multiple citizenship: "If a person is a citizen of a several states, the citizenship of the state with which the person is most closely connected shall be determinative for purposes of the applicable law". Taking into consideration the relevant facts, that the Player had already been settled as a professional football player in Turkey for 3 years, had already gained the Turkish citizenship for nearly one and a half year, was playing under Turkish status within the Turkish Professional 1st Super League as from the 2005-2006 season and had already played a ‘B’ international match for Turkey, the Panel considered the Player definitely has a "closest connection" with Turkey.
It is also worth to note, that Panel used a general principle of law, "cuius commoda, eius et incommoda" (meaning that the one who seeks and obtains a benefit must also accept the possible burdens which flow from that benefit). By reason of that principle a party cannot blow hot and cold, be Turkish for one purpose and British for another. Omer's appeal was dismissed.
CAS 2016/А/4441 Jhonny van Beukering v. Pelita Bandung Raya & FIFA
Jhonny van Beureking, a professional football player, dual citizen of the Netherlands and Indonesia, signed an employment contract with the Pelita Bandung Raya football club on 31 January 2011. According to the contract, Jhonny van Beukering was entitled to receive an accommodation in form of house, and he had the right to decide whether or not to accept the housing. [2]
However, on 25 May 2012, and following several reminders to the Club, Van Beukering put the club in default of the unpaid salaries and of housing costs. He also reminded the club that it owed him three monthly salaries in housing cost, notifying the club that the player considered the non-payments as a breach of contract without just cause.
Van Beukering lodged a claim with FIFA against the club, maintaining that the club had breached the contract without just cause. FIFA DRC rejected the appeal, because the Player holds both Dutch and Indonesian nationalities, even if the Player only acquired Indonesian nationality long after the contract was signed by the parties, in October 2011. Nonetheless, the analysis regarding which nationality the Player holds should be made at the time of the event giving rise to the dispute, the alleged non-payment of housing and monthly salaries. FIFA DRC came to the conclusion that at the time of the alleged non-payment of the player's salaries for a few months, the Player was Indonesian national.
Based on player's personal documents, the Sole Arbitrator concluded, that van Beukering officially became an Indonesian citizen on 20 October 2011. Also it was undisputed, that he obtained and Indonesian passport, just as he played official matches for the Indonesian football team. Therefore, the CAS Sole Arbitrator established that van Beukering and Indonesian club both share Indonesian nationality, the effect of which is, prima facie, that the dispute must be considered as a purely national matter lacking the required international dimension, needed for attracting the competence of FIFA.
The Sole Arbitrator attached particular importance to the fact that the present dispute involves primarily national aspects since the dispute concerns the alleged non-payments by an İndonesian club of salaries to the player at a time when the player held Indonesian citizenship, resided in Indonesia and participated actively in official matches as a player on the Indonesian national football team. At the time of lodging the claim with FIFA, continued to use his Indonesian nationality for playing official matches for the national team, which merely accentuates the player's national affiliation still further.
The appeal, filed by Jhonny van Beukering was dismissed by the CAS.
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