After the Court of Arbitration for Sport ruled in favour of the right of Daniel Kearns – and, by extension, the right of all footballers born in Northern Ireland in possession of Irish nationality – to declare for the Football Association of Ireland (FAI) in 2010, it appeared that the Irish Football Association (IFA) were finally prepared to acknowledge, accept and work with the valid legal and cultural identity of Irish nationals born in Northern Ireland.
Rather than trying to effectively coerce dual Irish nationals (also in possession of British citizenship – the prerequisite for eligibility to represent the IFA – by virtue of their birth in Northern Ireland) into representing Northern Ireland via attempts to limit their choice to solely the IFA by suppression of their right to declare for the FAI, the IFA appeared set to embrace the more mature, responsible and proactive approach of making it their business to convince such players to play for Northern Ireland.
… Or so it seemed. To both my surprise and disappointment, it has come to my attention that there are elements within the IFA still operating behind the scenes with the intention of deciphering a method by which Irish nationals could be rendered ineligible by FIFA to play for the FAI.
FIFA’s current thinking on the Irish eligibility matter is that the regulatory framework in place is “sufficient to properly cover” the situation. This is on account of having “thoroughly considered the existing applicable provisions” in tandem with the previous failure of the IFA to reach an amicable settlement with the FAI when offered a solution by the governing body.
On the 5th of November, 2007, FIFA proposed what the Court of Arbitration for Sport described as a “specific and unique agreement” to settle the dispute and placate the IFA’s protestations at the time. FIFA outlined:
The current situation is such that, for the Irish Football Association, players can choose also to play for the representative teams of the Football Association of Ireland but the vice-versa is not possible.
With the objective, as always, to find an amicable solution which is acceptable for both member associations concerned as well as for FIFA, the FIFA Legal Committee has now made the following new proposal: any player holding the nationality of the Republic of Ireland and consequently, in principle, being eligible to play for the representative teams of the Football Association of Ireland, that was born on the territory of the Republic of Ireland, would, by agreement between the two associations, also be eligible for the representative teams of the Irish Football Association.
In other words, every 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 Football Association of Ireland or the Irish Football Association, under the condition that all other relevant prerequisites pertaining to a player’s eligibility for a specific association team are fulfilled.
Such a proposal would have had the peculiar effect of rendering Irish nationality – currently governed by article 5 of FIFA’s Regulations Governing the Application of the Statutes - a shared nationality that would otherwise have been subject to what is now article 6 (or what was then article 1 of Annexe 2 of FIFA’s Regulations on the Status and Transfer of Players) had FIFA’s evident intent not been for the proposal to transcend or be exempt from any pre-existing statutory limitations. Clearly, the rationale behind such a proposal was based primarily not in logic, but in an aim to pacify the IFA and reach an amicable settlement.
FIFA made such a proposal under the misguided belief or hope that permitting Irish nationals born south of the Irish border to play for Northern Ireland by sole virtue of their Irish nationality might appease the IFA. At the time, FIFA obviously believed that this was an effective way of balancing what the IFA perceived to be a lack of equilibrium, or what FIFA formerly described in overly simplistic terms as a “one-way situation” before considering the situation and governing provisions in respect of it more thoroughly. Whilst the FAI had no problem with the proposal, the IFA rejected it, evidently seeing little consolation or merit in it due to the fact that Irish nationals born in Northern Ireland would still have been entitled to declare for the FAI as before.
In contemplating a formal revisit to the issue now in 2012, it appears some within the IFA are hoping to convince FIFA to, once again, entertain the possibility of regarding Irish nationality as a nationality shared by both the FAI and the IFA. This possible new tack from the IFA amounts to something rather different and much more brazen to merely accepting what was on offer to the association in 2007, however. This new approach would seek to retain the application of article 6 over what would become the shared Irish nationality per FIFA’s rules.
Article 6 states:
A Player who, under the terms of article 5, 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.
If article 6 was indeed to apply over Irish nationality, it would have the effect of rendering Irish nationals born in Northern Ireland, the territory of the IFA, ineligible to play for the FAI and eligible only for the IFA (assuming these nationals also failed to satisfy the other aforementioned criteria). Whilst the IFA are more than entitled to lobby FIFA however they wish, this would be a calamitous, ill-advised and futile endeavour for a number of reasons.
In effect, the potential IFA proposal would entail the IFA representing both the Irish and British nationalities. It would not make sense for a national association to represent two nationalities. If the IFA were to possess two nationalities, this would amount to an anomaly in international football whereby the citizens of a jurisdiction external and unrelated to the IFA would be entitled to represent the IFA on the basis of or by virtue of their citizenship of that external jurisdiction. Hence, the IFA would be the beneficiaries of unique and favourable treatment at the expense of all other member associations of FIFA who would, of course, lay claim to just the one nationality.
The IFA’s line of reasoning would be doomed to inevitable failure due to there being no legal or factual basis to the claim that Irish nationality is, in fact, a nationality shared by the IFA, as was outlined by the Court of Arbitration for Sport in paragraph 79 of the Kearns judgment. Irish nationality is not a shared nationality in actuality, so there is no logical reason for FIFA to regard it as such in its rules. Irish nationality emanates from an external jurisdiction legally irrelevant to the IFA and is exclusively the nationality of the association of that jurisdiction; that being the state of Ireland and its national association, the FAI. Irish nationality, by definition, does not confer eligibility to play for the IFA. The nationality of the IFA, a British association, by definition, is British nationality. If a player born in Northern Ireland in possession of dual Irish and British citizenship was to renounce his British citizenship, for example, he would no longer be eligible to represent the IFA.
The proposal would also be diplomatically-contentious in that it would amount to an attempt to claim a sovereign, independent and unrelated body of nationality law – that being the nationality law of the state of Ireland – as somehow falling under the realm of the IFA. If the IFA were to proceed with this, I would envisage not just the two associations, but also foreign ministers and the like, getting embroiled in a very heated and politicised debate. Whether or not FIFA would even approve of such a proposal without prior agreement from the FAI, who would inevitably be affected, is another question.
If the above failed to provoke enough controversy, the IFA would also have the sensitivities of the Irish nationalist community in Northern Ireland to contend with. This proposition would be insulting to Irish nationals born north of the border, the valid identity of whom the IFA had, since the Kearns case, apparently come to acknowledge and accept. Just as dragging Daniel Kearns off to the Court of Arbitration for Sport in 2010 made the IFA appear vindictive and hostile to Irish nationalist identity, this would, once again, make the association look like stubborn unionists hell-bent on depriving nationalist footballers of their right to declare for their national association, the FAI. In fact, as a second attempt to stifle the right, it would surely look worse! The IFA might have been able to plead that the first attempt was tinged with a degree of ignorance, but certainly not this one, if it indeed comes to pass. This strategy would be much more contrived and devious, not to mention ultimately counter-productive.
For it certainly puzzles me as to how some in the IFA think that continued exhibitions of contempt for the Irish nationalist identity might endear to the broad nationalist community an association that so readily professes to seek cross-community endorsement. Tolerance, respect and transparency are the IFA’s most effective weapons in what appears to be their ongoing “eligibility battle”; not tactless attempts at repression.
Clarifying postscript (30th May, 2012):
Since writing the above piece, it has transpired that I misinterpreted the words of the source who has informal contact with members of the IFA/Northern Ireland supporters’ groups and had made known to me the information on which I based the article. His initial comment was as follows:
If the IFA went back to FIFA to lobby to have their (FIFA’s) previous suggestion to allow Citizens of the Republic Of Ireland to play for Northern Ireland put in place – and were successful – that would bring Article 6 of the FIFA Eligibility Statutes into play.
I’m hearing whispers of such an approach being considered.
After reading the piece, he informed me:
By that I meant that an approach to the IFA on that basis was being considered – the “elements” involved are not “within the IFA”, but supportive of the IFA.
Given the context of his former comment – he had mentioned the IFA possibly approaching FIFA in the first sentence and nothing about a group of supporters approaching the IFA – I had assumed, albeit incorrectly, that he was referring to having heard whispers within the IFA.
As a result of the above, however, I am willing to retract what might have been interpreted as indicative of official IFA thinking on the eligibility matter or as an accusation against members within the IFA.
Nevertheless, it is still unfortunate that groups of Northern Ireland supporters view the approach discussed in the article as worthy of serious consideration by the IFA and FIFA.
Read more from Daniel on the FAI/IFA: