Conceptual analysis of the legal definitions of "sport citizenship" and "constitutional citizenship" (international legal aspects)

Paramuzova Ol'ga Gennad'evna PhD in Law Associate Professor, Department of International and Humanitarian Law, Northwestern Institute of Management; Branch of the Russian Presidential Academy of National Economy and Public Administration 197022, Russia, St. Petersburg, St. Petersburg, Kamennosostrovsky Prospekt, 66 paramuzova-og@ranepa.ru Other publications by this author

Yakovlev Dmitrii Andreevich Bachelor, Department of Law, SZIU; RANEPA 199178, Russia, Saint Petersburg, Sredny prospekt Vasilyevsky Island, 57/43 olgaparamuzova@rambler.ru

    In the modern world, the role of sport in public relations continues to increase ^[3]. More and more sports competitions are being held, and the number of interactions at different levels is growing ^[2]. This entails the need for high-quality legal regulation of this area, which results in the development of sports law as a separate branch of legislation ^{[3, 12, 16-19]}.The growing popularity of this branch of law increases the importance of solving existing problems. That is why, now, during the period of active development of sports law and legal relations in the field of sports in general, there is an urgency to conduct research on issues significant for this industry ^{[4,5, 13,14]}.

    An urgent problem is the peculiarities of the legal regulation of sports citizenship in various sports, issues of naturalization. In addition, the increase in the number of naturalization cases in sports increases the importance of the problem of compensation for the costs of educating an athlete by the federation that naturalized him in relation to the federation that conducted sports training. However, it is important to note that the primary problem of everything related to sports citizenship is the analysis of the concepts of sports and constitutional citizenship. This topic is not widely studied among legal scholars. At the moment, not many works have been written on the topic of sports citizenship and sports law in general.  The active growth in the popularity of this industry reflects the relevance of scientific research in order to identify existing problems, as well as to develop ways to solve them ^{[7,9,24,25, 27]}.

    Over time, sports law, as a sphere of legal regulation, has expanded significantly, which has led to the emergence of a large number of problematic issues that need to be studied ^[20-24]. The current trend is that many concepts characteristic of legal science are transferred to the field of sports, while, often, their meaning changes significantly, for example, rent, transfer, as well as other terms have completely different meanings in the norms of the branches of law and sports. This also includes the concept of citizenship, which is relatively new to sports legal relations.

   Speaking about citizenship issues, it is necessary to distinguish between the understanding of citizenship from the traditional point of view and sports citizenship. First, let's look at the important aspects of constitutional citizenship. Let us turn first of all to the issue of determining the constitutional and legal status of a citizen. Article 6 of the Constitution of the Russian Federation establishes the following:

1. Citizenship of the Russian Federation is acquired and terminated in accordance with Federal Law, is uniform and equal, regardless of the grounds for acquisition.

2. Every citizen of the Russian Federation has all the rights and freedoms on its territory and bears equal duties provided for by the Constitution of the Russian Federation.

3. A citizen of the Russian Federation may not be deprived of his citizenship or the right to change it.

In accordance with paragraph 1 of Article 4 of the Federal Law of the Russian Federation dated 04/28/202331.05.2002 No.138-FZ (as amended on 07/24/2023), a citizen of the Russian Federation is a person who has a stable legal relationship with the Russian Federation, expressed in the totality of their mutual rights and obligations."

According to article 5 of the same law, the following principles of citizenship of the Russian Federation are defined:

1. The citizenship of the Russian Federation is uniform and equal, regardless of the grounds for its acquisition.

2. A citizen of the Russian Federation may not be deprived of the citizenship of the Russian Federation or the right to change it.

3. Residence of a citizen of the Russian Federation outside the Russian Federation does not terminate his citizenship of the Russian Federation.

4. A citizen of the Russian Federation may not be expelled from the Russian Federation or extradited to a foreign state.

5. Legislation in the field of citizenship of the Russian Federation may not contain provisions restricting the rights of persons on the grounds of social, racial, national, linguistic or religious affiliation.

6. The Russian Federation encourages the acquisition of citizenship of the Russian Federation by stateless persons residing in the Russian Federation.

   Similar norms are contained in the national law of the vast majority of countries in the modern world, since citizenship issues relate to the constitutional foundations of the political and legal system of any sovereign state. Moreover, the legal basis of national legal regulation is generally recognized norms and principles of international law, primarily the UN Charter and the Universal Declaration of Human Rights ^[1].

   Citizenship is an institution, first of all, of the national legal system, therefore, according to the legal position of the Constitutional Court of the Russian Federation: Only a sovereign state is legally competent to determine who its citizens are, thereby recognizing them as full-fledged subjects of law, possessing all constitutional human and civil rights.

  Analyzing the provisions of international legal acts regulating issues of national (constitutional) citizenship, in addition to the Universal Declaration of Human Rights of 1948, which contains universal standards of humanitarian law, attention should be paid to article 1 of the Convention on Certain Issues Related to Conflicts of Laws on Citizenship, adopted in 1930. Each State determines for itself, in accordance with its own law, who its citizens are. Later, the Convention on the Reduction of Statelessness, adopted in New York in 1961, enshrined in its rules the rules for granting citizenship to a person born on its territory who otherwise would not have had citizenship. In accordance with the provisions of this Convention, citizenship was granted at birth – by virtue of law, as well as upon application to the relevant authorities in accordance with the law of the State, and such applications should not be rejected (subject to additional conditions that may be determined by national law).

   In most cases, sports citizenship is defined by legal scholars as the opportunity for an athlete to participate in competitions held by international and national federations, associations and unions that cultivate a particular sport, as well as the right to play for the national team in international official competitions. ^[17]

   For professional athletes, the presence of constitutional citizenship of a country is often not the basis for the emergence of sports citizenship and, as a result, does not always give the opportunity to play for the national team of a given country in international competitions under the auspices of a sports association and federation. It is important to note that depending on the sports federation and a particular sport, the rules governing citizenship issues may vary greatly.

   First of all, it is necessary to consider the provisions of the Olympic Charter, compliance with which is a condition for admission to Olympic competitions. The Charter contains separate rules governing citizenship issues. Thus, Rule 41 establishes that any participant in the Olympic Games must be a citizen of the country whose National Olympic Committee (hereinafter referred to as the NOC) has applied for him. All disputes related to the determination of the country that a participant can represent at the Olympic Games are resolved by the Executive Committee of the International Olympic Committee (hereinafter - the IOC). The International Olympic Committee, according to the Olympic Charter, manages the Olympic Movement. The IOC is called upon to coordinate its units with public organizations and competent public authorities, thereby ensuring the regular holding of the Olympic Games. Decisions taken by the IOC on the basis of the provisions of the Olympic Charter on issues within their competence are final. In case of any dispute, it must be resolved by the IOC Executive Committee, in some cases by the Court of Arbitration for Sport (CAS).

   The main controversial issues in this case are situations in which an athlete has dual or multiple citizenship. In such cases, he may represent only one country of his choice. And here it is important to pay attention to the official explanations to this rule, which are contained in the text of the Olympic Charter itself, since not everything is as clear as it may seem at first glance. After an athlete has already represented one country at the Olympic, Continental or regional Games, or at the World or regional championships recognized by the relevant International Federation, he cannot represent another country.

   It is worth dwelling on the problem of changing sports citizenship, since some exceptions can be found. An athlete who has already represented one country at the Olympic, Continental or regional Games or at the World or regional Championships recognized by the relevant International Federation, and who has changed his citizenship or received a new citizenship, may represent his new country at the Olympic Games only after a period of three years has elapsed after his last appearance for his previous country. This period may be shortened or even cancelled by the IOC Executive Committee with the consent of the relevant NOCs and International Federations; the IOC Executive Committee takes into account the circumstances of each specific case.

   In addition, in all cases where a participant has the right to participate in the Olympic Games, representing a country other than his former country, or having the right to choose the country he intends to represent, the IOC Executive Committee may make any decisions of a general or private nature regarding the nationality, citizenship and permanent residence of the participant, including the duration of the postponement period. And here, of course, a rather ambiguous situation arises. We can observe both the recognition of the existence of a direct link between constitutional and sports citizenship, as well as decisions taken by the state, and the right to cancel these decisions for ourselves and make our own through a meeting of the IOC Executive Committee.

   When we are not talking about the Olympic Games, but about sport in general, it is important to note that the IOC recognizes the almost complete independence of sports federations in regulating this issue in matters of regulating sports citizenship. Delving into the study of sports citizenship issues, one can also find other rules in force in individual sports federations for various sports. For example, the ways of regulating citizenship issues in a sport such as rugby seem interesting and unusual, where the basis for admission to play for the national team, in addition to standard grounds such as the birth of a person in the territory of the relevant state or the birth of a rugby player's parents in the territory of the relevant state, also includes the fact of residence for thirty-six consecutive months in the territory the relevant State in the time period immediately preceding the date of the game. Thus, we can observe the case of obtaining "sports citizenship" without obtaining constitutional citizenship by an athlete at all, as well as without having any grounds for it in most countries.

   It is also interesting to consider the issues of sports citizenship in football ^{[6, 8, 10]}. Most federations have established rules that, at first glance, in the usual understanding of international law, would seem to be clear discrimination based on nationality. We are talking about the so-called "limits on foreign players", which limit the number of foreign players in the team's application. The limit may also be expressed in limiting the possibility of a certain number of foreign athletes being on the football field at one time during an official match there. There are such rules in Russia.

   In accordance with the rules approved by the Order of the Ministry of Sports of the Russian Federation, a maximum of 8 foreign football players can be on the field at the same time, while there should not be more than 13 of them in the team's application for the competition. At the same time, football players from the Republic of Belarus, as well as the member states of the Eurasian Economic Union (Armenia, Kyrgyzstan and Kazakhstan) are not considered foreign players on the football field, provided that they can play for their national teams. However, it is worth noting that at the same time they will be listed in the application as foreign football players and will be limited to 13 people.

   In our opinion, such rules cannot be considered discrimination based on nationality. These provisions of the internal rules are aimed at the development of sports in the country. Each federation is interested in local players competing in its championship, getting game practice and improving their professional level. Similar rules exist in most of the world's football leagues and are quite diverse. For example, in addition to the simultaneous presence of a certain number of foreigners on the field, it happens that the number of matches for the national team, the talent of the player and other signs are taken into account ^[26].

   In world football, the governing body is the International Football Federation (Federation Internationale de Football Association, hereinafter referred to as FIFA). FIFA includes most of the existing football Associations and organizes world-class football competitions, while being one of the oldest international organizations, which began its activities in 1904. Over time, the rules tend to change, as the trends in the development of world sports themselves and society as a whole change. In 2020, FIFA amended the rules on changing football citizenship in order to protect young players playing at a young age for the national team, which subsequently stopped calling them.

   In accordance with Article 5 of the Regulations on the Use of the FIFA Charter, each player has the right to play for the national team of the association of the country whose citizenship he possesses. At the same time, it does not matter whether he lives in the territory of this country. The right to play for the national team can be obtained by both persons who received citizenship at birth and persons who have undergone the naturalization procedure. It is important that, with the exception of some individual cases, an athlete who has represented a country at official international matches cannot further represent the national team of another country at international competitions.

   The situation in which an athlete has citizenship, which makes it possible to represent several associations at international tournaments, also looks interesting. The country with such citizenship is the United Kingdom. And here we see a very interesting case in which the countries that are part of the United Kingdom of Great Britain have independence in sports, each country has its own "sports citizenship" and its national teams. Such cases are regulated by Article 6 of the Regulations on the Use of the FIFA Charter, which states that a football player can represent only one of the associations and only if at least one of the specified conditions is met: he or his biological mother or father was born on the territory of this association; his grandmother or grandfather was born on the territory of this association he has lived in the territory of the relevant association for at least 5 years.

   Another common case in football is when a football player acquires a new constitutional citizenship during his career. Such cases are regulated by Article 7 of the Regulations on the Use of the FIFA Charter. It is important to note that such a player may also have the right to play for the national team of the country whose citizenship he acquired. At the same time, it is necessary that before that he did not play for the national team of the previous country, and also fulfilled one of the following conditions:  he or his biological mother or father was born on the territory of this association; his grandmother or grandfather was born on the territory of this association; he lived on the territory of the corresponding association for at least 3 years if he began to live there before the age of 10, and for at least 5 years if he began to live there between the ages of 10 and 18, and after 18 years.

   Considering this rule, it is important to note that those persons who plan to get the right to play for the national team on the basis that they moved to this country before the age of 18 and lived there for a specified number of years are required to prove that the purpose of their move was not to play for local football teams. To do this, they need to contact the FIFA Player Status Committee.

   I would like to focus on stateless persons separately. Article 8 of the Regulations on the Use of the FIFA Charter provides for the possibility for persons who do not have citizenship, and according to the legislation of the country in which they live, will never be able to obtain it, the right to play for the national teams of associations of the country in which the athlete has lived for at least 5 years. At the same time, he needs to prove that the purpose of his move was not to play for football teams.

The most difficult situation is the change of the football association if the athlete has already represented his national team at international competitions. The provision of Article 9 of the Regulations on the Use of the FIFA Charter regulates this situation. It should be noted that even before 2020, other rules were in force that severely restrict athletes in such situations, however, as a result of the amendments introduced, athletes had the opportunity to change their association even after playing a match for the national team. In particular, this protected young athletes who were called up to the national team of a country at the youth level, and over time they stopped being called up there. However, despite the opportunity, FIFA has introduced strict criteria that must be met in order to exercise the right to change a sports association.

   When a football player acquires a new constitutional citizenship, he has only one opportunity to ask for a change of sports association. However, such a request can only be granted in the following cases:

- the player played in an official match in any kind of football (except for games organized between two FIFA members who fielded the main national teams) for the current association, while having the citizenship of the association he now wants to represent at the time of the first match, or did not have citizenship at that time, but was younger 21 years old, and also complied with any of the requirements of Articles 6 and 7 of the Regulations discussed in our study above

- in cases where a football player has played in matches organized between two FIFA members who have fielded the main national teams for any type of football, it is necessary that the player, during his first official match, already had the citizenship of the country of the association whose team he wants to represent; also, at the time of his last match for the current association, he must be under the age of 21; he must take part in no more than three international football matches, including friendly games. Also, at least three years must have passed since the last international match, and the player himself should not have previously participated in the World Championships or continental football championships.

   FIFA allows a return to the previous association for a football player, but only if the athlete after the transfer did not participate in an official or friendly match for the national team of the association to which he previously transferred.

   In order to resolve all issues regarding the change of sports citizenship in football, a player must contact the FIFA Player Status Committee through a request through the relevant association. After a player applies to this committee in order to launch the procedure for changing a sports association, he is deprived of the right to represent any sports association until the FIFA Players Status Committee makes a decision.

   Cases of changing sports citizenship in football and sports in general are not uncommon. The introduction of limits on the permissible number of foreign athletes in a team is often a catalyst for obtaining sports citizenship in order to circumvent this rule. The interested parties in this case are the player himself, since having the citizenship of any country it is easier for him to find a team in the championship of this country, as well as the team, since obtaining citizenship by one player makes it possible to bring another foreign athlete of a potentially higher level. A similar trend affects individual sports. An athlete who has not been called up to the national team of one country, if he has the right, changes the sports association in order to compete in international competitions as a representative of another association.

   Speaking about the state of affairs in Russia, the suspension of our country from most international competitions has influenced the fact that many athletes who have dual citizenship or have the opportunity to obtain another citizenship have used and continue to use this right and now represent other national associations at international competitions, which, of course, entails negative consequences and is reflected at the level of sports in the country.

   Due to the growing number of cases of changing sports citizenship, not only in our country, but also around the world, the issue of compensation for the costs of educating an athlete by the federation that naturalized him in relation to the federation that conducted sports training should be considered. This problem is relevant, since the costs of long-term training of an athlete, starting with youth sports, require significant investments, and in the case of a change of sports citizenship by an athlete, the issue of financial compensation is unresolved. In football, there is a concept of compensation for training during the transition from one football club to another, and, in our opinion, there is a need to develop a similar mechanism in legal relations between sports federations regarding the change of sports citizenship.

Conclusion

   Summing up the research conducted in this article, the following conclusions can be drawn:

   1. Having conducted the research, it can be concluded that it is necessary to establish the existence of both a certain connection in the concepts of constitutional and sports citizenship, and a significant difference. In addition, it is worth paying attention to the importance of compliance with the norms governing sports citizenship with modern realities, since mass migration in the world contributes to the fact that the number of people receiving new constitutional citizenship is growing, which results in the events that we can observe in sports.

   2. Setting limits on the number of foreign athletes allowed in sports is not discrimination. Such rules are a way to protect the state's own interests in sports and are aimed at improving the level of athletes of their nationality for greater competitiveness in international competitions.

   3. It is extremely important to subject legal relations in the field of naturalization of professional athletes to more detailed national legal and, if possible, international legal regulation.

   4. It is necessary to develop a mechanism that, at the level of federations for various sports, will consider issues of compensation for the costs of educating an athlete by the federation that naturalized him in relation to the federation that conducted sports training, taking into account the specifics of each sport.

  5. It is necessary to bring the norms governing the issues of sports citizenship into line with modern realities, since mass migration in the world contributes to the fact that the number of people receiving new constitutional and sports citizenship is growing, which results in those events that we can observe both in the field of general state policy and in the field of professional sports.

   6. It is necessary to recognize the need for a new codification of the norms of general international law, a more complete involvement of the mechanism of regional law-making, as well as full and high-quality implementation of national standard-setting activities in the field of professional sports, taking into account the fact of possible complication of legal relations in this area by a foreign element ^{[14, 15]}.