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

15 June 2011 25,591 views No Comment Written by Ronan

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

By Daniel Collins (daniel_d_collins@hotmail.com).

“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.

Darron Gibson.
There is a significant minority community in Northern Ireland that identifies culturally not as British, not as Northern Irish, not as British Irish, but simply as Irish; as much a part and parcel, both legally and culturally, of the Irish nation as their fellow compatriots in Ireland south of the border. This community – the nationalist community – is Irish and doesn’t merely affiliate as such. The unionist ‘Ulster Banner’ and ‘God Save the Queen’ are not symbols venerated by this community; rather, you will find Irish tricolours to be their flag of deference. The alien label of “Northern Irish” bears little resonance and their identity is channelled through the concept of Irishness distinct from Britain and the notion of Britishness. As a Nobel laureate poet from Derry, Seamus Heaney, once wrote in objection to his inclusion in a 1982 ‘Penguin Book of Contemporary British Poetry’:

“Don’t be surprised if I demur, for, be advised
My passport’s green.
No glass of ours was ever raised
To toast The Queen.”

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 misconceptions 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”

“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.

Numerous other myths persist with regard to the eligibility issue and it is about time they were also exposed as false or inaccurate once and for all. Some of the most common misguided claims and misunderstandings to prevail are outlined below.

“FIFA is dragging its heels on this matter.”/”FIFA needs to clarify its position once and for all and stop dodging the issue with indecision and ambiguity.”

FIFA is not dragging its heels or dodging anything in relation to the matter of Irish player eligibility. The governing body has been wholeheartedly transparent on this issue. It has a set of easily-accessible rules in place, over which the CAS has provided clarification for the IFA when it was demanded by way of a fruitless appeal. FIFA sided with the FAI in the Kearns case, so its position should not be unclear to anyone, even if they missed the organisation’s countless reiterations on the primacy of its statutes and their application to the Irish eligibility question.

“The current situation arises out of a FIFA ruling/loophole that goes against their general principles.”

The current reality arises from clear and long-standing FIFA rules considered by FIFA’s Legal Committee and firmly agreed upon by at least a 75 per cent majority of the voting member associations at the FIFA Congress; not a mere one-off “ruling” or any anomalous “loophole”. Neither does the current situation run in the face of any alleged “general principle”. Article 15 is titled as the “Principle”. That is the rule under which Northern Ireland-born Irish nationals qualify to play for the Republic of Ireland. If there is to be a general principle taken from FIFA’s rules on player eligibility, then that is surely to be it. Article 16, on the other hand, with its criteria of a territorial link via birth, parentage or grand-parentage is not a general principle. Even if it was to be claimed that some apparent principle could be implied from this article, the express rule laid down in article 15 would, naturally, always have the effect of superseding it anyway.

To describe FIFA’s eligibility regulations in terms of a “ruling” or “loophole” is to insinuate that they are arbitrarily fleeting in nature and might be subject to constant change at the whim of some FIFA politician; that the IFA have been hard done-by by some sloppy lack of foresight and the hasty passing of a piece of legislation for the sole purpose of appeasing the FAI and that they can expect FIFA to overturn their apparently-erroneous ways by passing another ruling. This is not the case at all, nor does FIFA operate in such a fashion.

“The FAI are shamelessly exploiting a rule to the detriment of the helpless IFA.”

            Let us examine the point of rules and regulations. Rules exist to legislate against the occurrence of certain actions. As a corollary of this, they also permit certain actions, if not expressly, then implicitly; actions that would otherwise have rules constructed to prevent their occurrence if it was felt these actions were in some way transgressive.

By selecting willing Northern Ireland-born Irish nationals, the FAI, whilst obviously standing to benefit, are engaging in an exercise that is not only in no way illegitimate, but in one that is also expressly and intentionally provisioned for by FIFA’s rules. Whether the rules allow for a favourable outcome for the FAI or not, to say that operating within their remit should evoke shame or would be in some way underhand would be both disingenuous and incorrect; it is a wholly legitimate endeavour. If the FAI are going to be vilified for apparently acting in their own self-interest, it is worth pointing out that self-interest is the primary motivation of all associations, including the IFA, and there is no crime in that. FIFA have had ample opportunity to amend their rules if they had ever felt they needed amendment.

Besides, one could challenge such emotional dross with a similarly-sentimental point by arguing that the FAI are behaving in a noble manner to facilitate young Irishmen who just happen to be born in Northern Ireland in realising their dream of playing for their country.
“The FAI are in breach of a ‘gentleman’s agreement’ agreed between the IFA and the FAI in the 1950s whereby both associations agreed that they would abstain from selecting players from the other association’s jurisdiction.”

The CAS outlined that it could find no evidence of such an agreement; the IFA could not provide evidence of it, the FAI denied it ever existed and FIFA claimed no knowledge of it. Hence, it is probably fair to assume that one did not exist. If an agreement had existed, one would expect the IFA to have been able to offer proof of it. Seeing as the IFA were the party claiming its existence, the burden of proof should rightly have laid with them.

Around this period of time, there is only evidence for FIFA issuing two dictats – one on the 18th of October, 1946 applying to FIFA competition and one on the 17th of April, 1951 applying to ‘Home Nations’ games – effective upon the IFA in order to prevent them from selecting players born south of the Irish border. CAS clarified in detail:

“On 7 October 1946, because at that time the IFA were selecting players born anywhere in Ireland for its international teams, the FAI requested FIFA to confirm that “players born within the area of [FAI’s] jurisdiction [were] not eligible for selection for International purposes by any Association other than the Football Association of Ireland”.

On 18 October 1946, the General Secretary of the FIFA, Mr Shricker, answered as follows:

“Art. 21 al. 2 of the Regulations of the F.I.F.A. (…) reads as follows:

“The players (NB. of International Matches) must be selected by the National Associations concerned and be subjects of the country they represent”.

This rule is binding on the British Associations since they have rejoined the F.I.F.A, and, in the future players born in the area of your jurisdiction will not be authorised to play in International match for the Irish F.A.”

The IFA did not accept that Mr Shricker’s approach applied to matches against the other British associations, which, at the time, were not governed by the FIFA regulations. The issue was raised on several occasions before FIFA, which initially deemed that it was not in a position to interfere in the matter, but later accepted to intercede when the IFA brought to its attention the fact that the FAI was putting pressure on players from within its jurisdiction to sign an undertaking not to play for the IFA.

On 17 April 1951, the General Secretary of the FIFA wrote the following letter to the IFA: 

“The Executive Committee of the F.I.F.A. considered the complaint made by your Association against the F.A. of Ireland at its meeting in Madrid, and have directed us to confirm that the Football Association of Ireland would act contrary to the F.I.F.A. regulations if they imposed conditions or restrictions before a player was transferred to another association in membership with the F.I.F.A., if his transfer documents were otherwise completely in order.

On the other hand, the Executive Committee consider it inadmissible to select players, being citizens of Eire, for the representative teams of a country other than Eire. An exception from this rule is only allowable in respect of the international matches between the four British Associations if those countries agree and the F.A. of Ireland do not object, but not for matches played in Jules Rimet Cup”.

As the FAI did not agree with the IFA’s selection of players from its jurisdiction, the effect of this letter was to extend the dictat of the 18th of October, 1946 to matches between the British associations. Of these dictats and the various inter-associational letters that preceded their issuing, CAS stated:

“What the IFA calls the “1950 FIFA ruling” is no more than an exchange of letters between the FAI, the IFA and/or then the General Secretary of the FIFA.”

No corresponding dictats with regard to the eligibility of Northern Ireland-born players to play for the FAI were ever issued to the FAI, however. More importantly, even if an agreement had existed between the associations, FIFA’s rules would have long since superseded it regardless. The CAS found no issue with FIFA’s submission that:

“The rules relating to the eligibility of players to play for representative teams are conclusively set out in the 2009 Application Regulations and supersede any rules which were in place before, including the alleged “1950 FIFA Ruling”.”

It is true that Northern Ireland-born players had not represented the FAI for a matter of decades before the mid-1990s, but there is no evidence to suggest that the FAI ever discussed the status of Northern Ireland-born Irish nationals other than with the understanding of them being eligible to play for the Republic of Ireland if they sought to do so. The CAS rightly pointed out:

“[C]ontracts forming a binding agreement require the mutual agreement of the parties. Such agreement may be either express or implied. There is an implied agreement only when the behaviour of the party alleged to have agreed is consistent only with its having done so. In general, a passive behaviour cannot be held to amount to an agreement to be bound by a contract. In other words, silence does not imply consent.”

Hence, no contract could be implied by conduct as there was no conduct to adjudge on the part of the FAI to suggest that they were of the belief that Irish nationals born in Northern Ireland were not or ought not be eligible to play for them.

 If there was any agreement between the two associations, it was when Jim Boyce accepted that the FAI could call up Northern Ireland-born players in 1999 and Bernard O’Byrne agreed that the FAI would only call up those who volunteered their services or, in effect, made first contact. However, the IFA taking the FAI to the CAS could rightfully be deemed a severe breach of such an agreement and, in light of this, there is no moral reason as to why the FAI should not communicate with Northern Ireland-born players eligible to play for the Republic of Ireland prior to them volunteering. They are as eligible to play for the Republic of Ireland as any other player with the right to a permanent Irish nationality not dependent on residence.

In any event, as highlighted by the Kearns judgment, a Northern Ireland-born Irish national seeking to switch from the IFA to the FAI would not have been party to any alleged agreement and would remain entitled to exercise his rights as provided by articles 15 and 18 of FIFA’s regulations.

“The IFA grooms, nurtures and invests a lot of money on developing young players with the ultimate aim of having them line out at senior level for Northern Ireland in Windsor Park, but the FAI are reaping the benefits. As a result, the FAI should be forced to recompense the IFA.”

The problem with a compensation argument is that it casts individual players as possessions of associations. The reality is that choice still ultimately rests with dual national players as to for who to declare, regardless of an association’s future hopes and intentions for that player. Let’s look at Northern Ireland midfielder, Oliver Norwood, or goalkeeper, Lee Camp, for example. Both have been capped at senior competitive level for Northern Ireland and are now tied down to the IFA. However, both were also part of the English under-age set-up at one point before being selected by the IFA. Who is to say with any certainty that either would not have been considered an option for England years down the line if his progress and development at club level were to somehow put him in the reckoning for a call-up? It is possibly unlikely, beyond some sort of English international goalkeeper or midfielder crisis, but the point is that nobody can say with any certainty. Ought the Football Association (FA) argue for compensation to be paid to them by the IFA under such a hypothetical scenario, given the fact these players played for the FA’s England at youth level? And what would prevent them from claiming they had actually had future intentions for him anyway after they had already been tied down to Northern Ireland simply in order to extract money from the IFA? Such a system would be vulnerable to rampant abuse.

Even if a Northern Ireland-born player was not to declare for the FAI, it would still be his right to refuse to represent the IFA regardless. By the same token as above, ought there be calls for individual players such as George McCartney to recompense the IFA for any losses accrued by the organisation in their development due to their later refusal to represent Northern Ireland? In McCartney’s particular case, his refusal to play was due to a disagreement with former Northern Ireland manager, Lawrie Sanchez. Or what about those players who are deemed to have retired “prematurely” from the international game by fans and association alike? Should an association have the right to dictate that these individuals still owe something back to the association – that they ever owed something to the association in the first place – and thereby either force them to play on or pay compensation? It is a ridiculous idea through and through. If the concept of compensation was introduced into international football, it would necessitate the invocation of original contractual obligations; that would destroy the essence of international football as a voluntary endeavour.

Even if we were to overlook all of this, having a player sign a contract would invoke a catch-22 situation anyway. Beyond the hurdle of having a minor enter into an agreement of a legal and binding nature, such a contract, whilst, for the sake of argument, maybe having legal standing under the law of the state, would have no standing whatsoever under FIFA’s statutes. It would be in breach of the regulations and FIFA would in no way condone it as they expressly endorse the idea that not even a friendly game ought to tie a player to an association. Essentially, it would amount to an attempt by the IFA to transcend or subvert their rules, whichever way one wanted to view it. If a player breached such a contract, it would make no difference to FIFA as such a contract would not be regulated by their statutes. However, if the IFA then proceeded to ensure the contract was upheld in a court of law after what they considered to be a breach by the player concerned in order to deny this player his right to switch association under the Regulations Governing the Application of the Statutes, FIFA would promptly threaten to suspend the IFA from competition under what would amount to third-party involvement in the running of the association; a breach of articles 13 and 17 of their General Provisions.

Of course, the origin of the IFA’s resources is also worth taking into account here. Regarding the claim that the IFA are losing out financially when players born in Northern Ireland who have played for their under-age sides opt to play for the Republic of Ireland at a later stage, it must be considered that the IFA are largely tax-payer dependent when it comes to funding. The IFA are funded by the nationalist tax-payer and by the families of those Northern Ireland-born players who have declared for the Republic of Ireland in the very same way they are funded by everyone else in Northern Ireland.

As recently as April of 2011, Northern Ireland’s Department of Education, run by Sinn Féin MLA, Caitríona Ruane, announced a commitment to the provision of £3 million that would ensure the IFA to be able to continue employing 30 full-time specialist coaches, delivering and supporting physical education programmes along with teachers in over 270 schools, for the next four years. These IFA grassroots coaches operate within all the local council areas of Northern Ireland and are also funded largely by the rate payers of the particular council area, rather than by the IFA. Furthermore, most of this coaching occurs on pitches and facilities owned by schools and the councils; not on IFA property. None of the aforementioned takes into account the millions pumped into the IFA on an annual basis from Stormont, the local councils and SportNI.

The myth that the IFA are losing out is a complete red herring. It is evident that it is not strictly IFA-raised money that is developing promising players in Northern Ireland; rather, it is the tax-payers of bi-communal Northern Ireland, which includes a substantial segment of the population who are delighted when they witness the likes of Darron Gibson taking to the field of Lansdowne Road in a Republic of Ireland shirt. If a young player from, say, Belfast or Derry decides to opt to play for the Republic of Ireland, it is as much his parents and family who have been funding him via their rates and taxes as it has been the IFA.

To expand on this, it is debateable as to how much of actual substance the IFA contribute to the development of young players, be it in Northern Ireland or when players move to clubs in, say, England. Most players’ development occurs at their clubs. So, barring the odd weekend away to play, say, the Faroe Islands in an under-17 game and a couple of nights’ stay in a hotel, the IFA contribute little of significance in the larger scale of things.

Take Paul George, a Belfast-born player who recently opted to play for the Republic of Ireland at the age of 16 after having lined out with the IFA, for example; he moved to Glasgow when he was 14 to take up an academy position with Celtic. It is Celtic, and not the IFA, who have contributed overwhelmingly to his development as a player. Then there are Darron Gibson and Marc Wilson who joined the Manchester United academy a number of years ago when they were in their mid-teenage years and since departing from the IFA set-up, have been with the FAI from under-17 and under-18 level, respectively. It has to be questioned what real development the IFA contributed to their abilities through resources of its own. The answer would be extremely little. If we were to be brutally honest, one might even attribute much of the physical and athletic development of the likes of Marc Wilson, Shane Duffy and Shane Ferguson to the time and resources of the Gaelic Athletic Association. All three in particular were keen Gaelic footballers in their youth.

Besides, as has been highlighted already, when young players are called into an under-age team, they are already offering something back to the association by way of their services on the pitch. There is more to the IFA than merely senior international football. Likewise, paying fans will also have benefited from being able to watch and take enjoyment from the contributions of the players concerned if something quantifiable in return is what they are seeking.

“A solution to this issue would be the imposition of an upper age limit after which players who have represented one association at any level other than competitive senior level would no longer be permitted to switch to another association for whom they may also qualify.”

FIFA’s congress voted to scrap the age limit of 21, before which players were entitled to switch allegiance, so long as they hadn’t played in a competitive senior international for their original association, from the current article 18 of their Regulations Governing the Application of the Statutes in 2009 after a motion from the Algerian Football Federation and lobbying from the north and west African francophone bloc of associations. It is highly unlikely they will go back on that now or introduce a one-off rule specific to the Irish situation without taking the FAI’s considerations into account. There has been no indication that they would consider it, but, of course, the IFA are more than free to lobby for this if they wish.

“This situation is unique in world football, whereby one national association may select two jurisdictions’ worth of players.”

Technically, the FAI can’t really select two jurisdictions’ worth of players; they can select only those players who are nationals of the country the association represents, just the same as that which applies to every other association around the world. The rules are universal. The FAI cannot call up Northern Ireland-born players who do not acknowledge or effect their birthright to Irish nationality. Ultimately, choice rests with the player.

“How can a player be happy to represent Northern Ireland and then jump ship to the FAI?”

Ignoring the bowed heads of those in Northern Ireland teams from nationalist backgrounds as ‘God Save the Queen’ blares out before kick-off at Windsor Park, there are a number of reasons as to why a player from a nationalist background might end up playing under the ‘Ulster Banner’. The occurrence of such, combined with a later switch to the FAI, does not necessarily have to be seen as contradictory, nor does it strike a blow to the notion that such players might still identify as Irish and may rather play with the Republic of Ireland first and foremost. 

There appears to be tendency in recent years for certain Northern Ireland-born players playing for Derry City FC – Kevin Deery, Barry Molloy, Marc Mukendi and Gerard Doherty, for example – to start out internationally in the under-age squads of the FAI. It is entirely plausible to assume that playing within the FAI’s system along with their club’s formal links to the organisation in Dublin are factors in their being noticed. Meanwhile, for other players from a nationalist background who might have grown up supporting the Republic of Ireland but played at schools and youth level within the Northern Ireland system – for example Shane Duffy, who played with Foyle Harps of the Derry and District League before joining Everton, or Darron Gibson, who played with Tristar Boys of the same league, later the Maiden City Academy and then Institute in the IFA’s Irish League before signing for Manchester United – it is the IFA, with their formal links and scouting network within Northern Ireland, who will have the first “look-in”.

Once a young player is called up by the IFA, progresses through the various age categories and forms bonds with his coaches, staff and team-mates, it complicates matters as, although he might always have possessed a childhood dream to play for the Republic of Ireland – or may even have had yet to develop a mature sense of national or cultural identity due to his age – he may now find himself, due to what might have been a matter of convenience – geographically or seeming like “the right thing to do” or whatever – and pride at being offered to play a bit of international football, he would naturally feel like he’d be letting his coaches and team-mates down if, further down the line, he sought to pursue what had always been his personal dream. Is a 15 or 16-year-old realistically going to reject what he will primarily perceive as some sort of formal acknowledgement and vindication of his abilities? He is more than likely to jump at the chance. For reasons of pragmatism, the offer of a greater chance of first-team international football with the IFA might also convince such a player to remain in the IFA set-up permanently. Even full Northern Ireland international, Niall McGinn, recently made it known that he was actually a Republic of Ireland fan in the immediate aftermath of Northern Ireland’s 5-0 loss to their neighbours, but he chose to declare for the IFA.

This is a dilemma that has been faced by some. Shane Duffy, for example, struggled with this quandary before deciding to declare for the Republic of Ireland. After having made his intentions known to the IFA that he wished to play for the Republic of Ireland, he was effectively used as a scapegoat by the IFA in the media in order to draw publicity to their cause. In February of 2010, Nigel Worthington selected him in a senior international squad to face Albania in a friendly and shared Duffy’s apparent inclusion with the media in spite of knowing full well that Duffy had no intention of taking his place in the squad. It forced Duffy to publicly withdraw from the squad, which naturally caused quite a stir in media and Northern Ireland supporter circles. It was off the back of this furore that the IFA took their case against the FAI to the CAS The fact that Duffy’s father, Brian, was actually born in Donegal meant that he would have qualified to play for the Republic of Ireland anyway even if article 16 had applied to the situation of Northern Ireland-born Irish nationals’ eligibility for the Republic of Ireland, as the IFA were trying to argue, so they saw fit to take the case up with another Northern Ireland-born player, Daniel Kearns, who had elected to switch but had no parent or grand-parent born south of the border; one would be forgiven for viewing the taking of such a case in a vindictive light.

Duffy’s father, Brian Duffy, speaking in an interview with UTV Live, also in February of 2010, talked about how his son’s situation within the Northern Ireland system “snowballed” as he was fast-tracked through the various under-age brackets and offered what one might dub carrot caps before it finally came to the point where he felt compelled to pursue his life-long dream and declare for the Republic of Ireland, but only after attempts by IFA figures of authority to induce a sense of guilt. No doubt, this is what Newcastle United’s Shane Ferguson is going through right now. Ferguson is another Northern Ireland-born player who is considering declaring for the Republic of Ireland. As it happens, he is also eligible to play for Scotland by virtue of his mother being from there. It must be asked, would such consternation surround a hypothetical declaration for Scotland as it would around a declaration for the Republic of Ireland?

“How could a supporter of any nation accept that a player who has earned a senior cap for one country be allowed to switch to another country to play his international football?”

In light of the prospect of Shane Ferguson, who has already been capped once for Northern Ireland in a friendly game against Italy in June of 2009, declaring for the Republic of Ireland, there have been attempts to paint such a prospect as absurd and the FAI’s interest in him as scurrilous. If Ferguson were to switch to the FAI, however, it would be a situation by no means unique to him alone. American-born footballer Edgar Castillo, for example, represented Mexico, for whom he was eligible by descent, on three separate occasions in friendly games between 2007 and 2009 before subsequently declaring for and being capped by the country of his birth, the United States. Likewise, Jermaine Jones, a player born in Germany to a German mother and an American soldier stationed there, played at under-age level for Germany was capped in three friendly matches for their senior team before declaring for the United States in 2010. He has since been capped on four occasions by the United States. As is clear, FIFA have amended and carefully-worded article 18 of their rules specifically so a friendly game will not tie a player down, thus enabling any player to switch association until he plays in a competitive game.

“Irish nationality law is particularly lax/aggressive/irredentist.”

While Irish nationals living outside the state of Ireland are entitled to an Irish passport, diplomatic support from Irish embassies and consulates abroad and have a right to repatriation in the state under very exceptional circumstances, as a general principle of international law, it is the sovereign right of each nation to determine who its own nationals are. Ireland practices a citizenship policy of modified jus soli and jus sanguinis, like many other modern states such as Australia, France, the United Kingdom and the United States. No international or European governmental body has any issue whatsoever with Irish nationality law. To add to this, it even has the bilateral approval of the United Kingdom – a part of whose recognised territory over which it has extra-territorial effect – along with the Northern Ireland electorate itself. Its effect in Northern Ireland is mutually agreed and, by no means, could be considered coercive. Those who wish to effect their birthright to Irish nationality do so via their own discretion. As regards the claim that it is unique in its extra-territorial effect, which might somehow detract from its legitimacy, there are plenty of states around the globe that offer what might be considered more unique forms of citizenship. Likewise, many states’ nationality laws apply across borders and territories due to the very common principle of jus sanguinis.

“The FAI are uncompromising.”

There have been suggestions that the IFA should seek out an agreement with the FAI whereby the FAI would offer to decline to select Northern Ireland-born players who have already lined out for IFA sides. The FAI have also been cast as uncompromising because of their apparent unwillingness to enter into any such agreement. The question must be asked; why should they? By selecting Northern Ireland-born players, whether they have played for IFA teams previously or not, the FAI are operating in a manner that is completely above board and are selecting players fully eligible to play for the Republic of Ireland under FIFA’s Regulations Governing the Application of the Statutes. The validity of any inter-associational agreement made between the IFA and the FAI would also come into question as FIFA’s rules would still have primacy over it and were a Northern Ireland-born player to seek a declaration for the FAI, the FAI would have no power under FIFA regulations to prevent him from exercising his right. Such an agreement would go against FIFA rules, unless it had the governing body’s backing.

Furthermore, in an attempt to find an amicable solution, a compromise was offered by the FIFA Legal Committee to both the IFA and the FAI on the 5th of November, 2007. The suggested approach would have had the following implications:
“[E]very player born on the territory of Northern Ireland, holding the UK nationality and being entitled to a passport of the Republic of Ireland or born on the territory of the Republic of Ireland and holding the Irish nationality could either play for the [FAI] or the [IFA], under the condition that all other relevant prerequisites pertaining to player’s eligibility for a specific Association team are fulfilled”.

However, whilst the FAI accepted this compromise, the IFA rejected it in a response to FIFA dated the 8th of November. In many ways, the IFA’s rejection was understandable given the content of the proposal, but for some to then claim that the FAI are uncompromising or intransigent simply doesn’t stand.

In light of this rejection, the FIFA wrote the following to the IFA and FAI on the 27th of December, 2007:

“On account of the [inability to find a compromise], as well as having thoroughly considered the existing applicable provisions of the regulations of FIFA, the FlFA Executive Committee was of the opinion that the current regulatory framework is sufficient to properly cover also the  situation at hand. As a consequence, it does not appear to be appropriate to make any changes to the existing regulations, in particular not to art. 15 of the Regulations Governing the Application of the FlFA Statutes. The Executive Committee therefore concluded to adhere to the status quo.”

From all of this, one thing is clear. By making such a huge and very public issue out of the debate over player eligibility, the IFA shot themselves in the foot. It is evident that very few people were even aware of Northern Ireland-born players declaring for the Republic of Ireland prior to the IFA kicking up a fuss over Darron Gibson’s switch. In fact, most people remain ignorant to the fact that Gibson was not the first Northern Ireland-born player to opt for the Republic of Ireland even now. Not only did brewing a media storm have the unintended consequence of further publicising a legitimate option open to Northern Ireland-born footballers, it also has served to make the IFA appear disconnected from the nationalist community – even hostile to its interests and expressions of that community’s national identity – thereby further alienating many and fomenting disapproval within a community to which it is desperately trying to reach out for acceptance. The IFA allowed themselves to become characterised as intransigent, uncompromising and stubborn unionists dead set on hampering young nationalist footballers’ dreams of playing for their country. Many on the side of the IFA even still fail to acknowledge that there is a significant population born and living within the borders of Northern Ireland that do not consider Northern Ireland to be their country, never mind their team.

 If anyone seeks as complete an understanding of this issue as is available, it is suggested that they have a read of the CAS judgment in the case of Daniel Kearns.

Thanks in particular to Jason Mallon, ‘K’ (OneTeamInIreland.blogspot.com), James Slevin and Ryan Kelly along with the various others who have supported and contributed to the debate on Foot.ie.

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