The Rule 41 of Olympic Charter under the Legal view and after the Supreme Court of Brazil extradition case

Since some new sports became Olympic many questions about the citizenship begun to raise throughout the world and some medias, occupied in spread some fake news, made the question grew up even more over the minds of some athletes, sponsors and sports management companies.

The Rule 41 from the Olympic Charter is very clear about the situation, but a recent judgment from the Supreme Court of Justice in Brazil about a Brazilian woman who became a USA citizen and killed a man changed the game and some weird news started to be spread by authorities in and out of sports world.

If there is something on the Olympic Games that really worth is the engagement of all the athletes to represent their countries and nationalities but the attempt to circumvent the rule by some athletes stands the subject into a new debate.

First of all we must check and understand the mentioned rule, as follow bellow:

“41 Nationality of competitors 

  1. Any competitor in the Olympic Games must be a national of the country of the NOC which is entering such competitor 
  2. All matters relating to the determination of the country which a competitor may represent in the Olympic Games shall be resolved by the IOC Executive Board 

Bye-law to Rule 41 

  1. A competitor who is a national of two or more countries at the same time may represent either one of them, as he may elect. However, after having represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognized by the relevant IF, he may not represent another country unless he meets the conditions set forth in paragraph 2 below that apply to persons who have changed their nationality or acquired a new nationality. 
  2. A competitor who has represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognized by the relevant IF, and who has changed his nationality or acquired a new nationality, may participate in the Olympic Games to represent his new country provided that at least three years have passed since the competitor last represented his former country. This period may be reduced or even cancelled, with the agreement of the NOCs and IF concerned, by the IOC Executive Board, which takes into account the circumstances of each case. 
  3. If an associated State, province or overseas department, a country or colony acquires independence, if a country becomes incorporated within another country by reason of a change of border, if a country merges with another country, or if a new NOC is recognized by the IOC, a competitor may continue to represent the country to which he belongs or belonged. However, he may, if he prefers, elect to represent his country or be entered in the Olympic Games by his new NOC if one exists. This particular choice may be made only once. 
  4. Furthermore, in all cases in which a competitor would be eligible to participate in the Olympic Games, either by representing another country than his or by having the choice as to the country which such competitor intends to represent, the IOC Executive Board may take all decisions of a general or individual nature with regard to issues resulting from nationality, citizenship, domicile or residence of any competitor, including the duration of any waiting period. “

The first questions arise from the basic knowledge about the jus solis and jus sanguinis’ concepts when we study the Constitutional Law and the Nationality Law.

In a short explanation the jus solis comes from the principle that the country of citizenship of a child is determined by its country of birth, while the jus sanguinis is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state.

Based on the foregoing legal concepts, lets try to dissect the Olympic rule trying to be further away from the legalist vocabulary, principles and concepts.

All the competitors must be signed by a member country of IOC to be competing on the Olympic Games, in other words, each athlete must be representing only one country and endorsed by the NOC that he/she represents.

But lets leave our thoughts go far away and if the athlete hold two nationalities (by law) or became a citizen of any other?

The answer is also explicit in the body of the both paragraphs in the rule and elucidates that question easily. If an athlete already had competed by any country in an Olympic Game, continental or regional competition, world or regional championship recognized by the international federation and change the nationality or acquire a new one the athlete must await 3 (three) years to represent the new country and flag.

The heart of the matter lays over the international federation and the recognition by them about the values and competitions that each athlete had participated before the new nationality (by acquisition or by law).

The IOC is about to face a frequent activity once many athletes in the new and old sports had changed the nationality or acquired a new one and the burden to base and feed the IOC decisions with the right information to avoid some mistakes lays fully in the hands of International Federations.

A good example of this kind of issue comes from the skateboarding mainstream where many skateboarders also became American citizens being supported by the sponsors and sport’s endorsements contracts disregarding any legal opinion about this issue. It is important to remember that for more than one year the IOC had to wait the joint of the most important international federations of skateboarding and rollers sports. After more than one year of dealings the ISF (skateboarders) and FIRS (Rollers Sports) that detained the attribution for one year, have become to another important body (World Skate) that IOC have assigned and accepted as the body of representation of skateboarders in the Olympic.

I am sorry to bring this subject again in this article, but my proximity, passion and participation in the previous dealings about the bodies makes it easier to talk and to use it as an important example in the Olympic world of nationality issues and considerations.

The World Skate is the new body of representation of skateboarding and rollers sports and it falls to them the responsibility to inform the IOC if any athlete already had competed in any other competition (representing another country) in a continental, world or regional championship recognized by them.

Can you imagine which competitions the new body is going to recognize once the entity is new, the sport is new in the Olympics and the biggest contests in the world never ever had any link to the old bodies, three or five years ago?

I do believe that this rule will be followed and respected by the skateboarders and all the other new sports practitioners not only by the love to their countries, but also by the statutory requirement of the Olympic Charter.

It is also important to highlight the fact that some countries might have faced some geopolitical transformation being incorporated by other nation or acquired the independence to any other NOC could be recognized by the IOC. This is an important exception and on this situation the local athlete will choose the country that he / she wants to represent, but once they chose the country they cannot represent the other one anymore.

This situation would not be a big deal to IOC, once it depends by a volitional element from the athlete and not by his/her past behavior as a competitor.

After all these concepts and questions storming over the head of our readers some of you might be asking: what do about the jus solisjus sanguinis and the Supreme Court of Brazil have to do about the Olympics, nationality and citizenship issues?

Well, recently the Supreme Court of Brazil made an important decision about a Brazilian woman who became an American citizen and killed a man in US, in according to the shared files from her trial to the Brazilian Court after the crime she ran away to Brazil trying to be protected by the Federal Constitution of Brazil that states in the Art. 5th – LI that the Brazilians citizens may not be extradited to other countries.

The Supreme Court in Brazil, in an unprecedented decision, chose to extradite the woman based upon the fact that when she became a US Citizen she made it by her own option, once she already had the Green Card that allowed her to live and to work in USA, living a normal life without any restriction to any normal American. Also, the Supreme Court decided that when she made the application to the US citizenship she was warned about the consequences and she was also warned about the legal oath that all the new citizens have to do.

The US citizenship oath demands an entire renouncement and abjure to all the allegiance and fidelity to any other foreign prince, potentate, state, or sovereignty, of whom or which the new citizen had been subject before.

This case about the Brazilian woman who became an American citizen by the oath became a “leading case” and might be used as a guide for many other countries with similar constitutions and nationality law with potential and important effects to the athletes who changed the nationality or that hold more than one citizenship, specially for those who had made the citizenship in any nation with a renouncement to the fidelity to any other country where the citizen had been subject before.

The mentioned situation is way different of any other nationality acquisition by law, under the point of view of jus solis or jus sanguinis once the acquisition stemmed from a volitional behavior and not by an imposition of the country where she was living.

It is an option and not an imposition placed by the USA to stay inside the country, exactly like many athletes do when they are chasing the dream of being a professional athlete or following some wrong orientation of their sponsors.

After all these previous information, crossing the concepts and subjects, its possible coming to the conclusion that IOC, NOCs and International Federations can not decide about the nationality based only by the Rule 41 of the Olympic Charter, but its important to follow the Constitutional Law of all the involved countries, since it goes beyond the matters and it crosses some important boundaries of International Law, Constitutional Law, Nationality Law and International Agreements about reciprocity.

Lets see the next steps of this musical chairs game hoping to see another amazing Olympic Game and looking forward to see all the athletes understanding and following the main goal of the Olympism that is to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity and not only as a competition or battle between countries.

About the author: Alexandre Alves Costa is a Brazilian Attorney at Law registered to the Ordem dos Advogados do Brasil / São Paulo (specialist in Labor Law, Sports Law and Business Law), Foreign Legal Consultant for the State Bar of California, partner of Tassara & Costa Legal Consulting Services, Lecturer, Book Author, Legal Attorney at Superior Court of Justice of CBSK (Brazilian Confederation of Skateboarding), skateboarder and a good friend.

To mention this article: Costa, A. A. – The Rule 41 of Olympic Charter under the Legal view and after the Supreme Court of Brazil extradition case by Alexandre Alves Costa

References:

– Federal Constitution of Brazil, Article 5th LI

http://english.tse.jus.br/arquivos/federal-constitution

– Extradition Case # 1462 – Supreme Court of Brazil http://portal.stf.jus.br/processos/detalhe.asp?incidente=5002140

– https://www.olympic.org/the-ioc

– https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf#_ga=2.66523822.1078257158.1528321406-874694543.1528321406

– “National eligibility rules confine the right to represent a national side and, thus, to participate in international competition: the criteria employed include nationality, place of birth and residence in the territory for a prescribed period of time” [MCARDLE David, Player Quotas, National Eligibility Restrictions, and Freedom of Movement under EU Law, European Union Studies Association (EUSA), Biennial Conference 2003 (8th), March 27-29, 2003, p. 14]

– https://www.nytimes.com/roomfordebate/2012/07/26/which-country-did-you-say-you-were-playing-for-in-the-olympics

– https://www.americanbar.org/publications/insights_on_law_andsociety/16/spring-2016/citizenship-and-the-olympics.html

– http://www.asser.nl/SportsLaw/Blog/post/sporting-nationality-and-the-olympic-games-selected-issues-by-yann-hafner-university-of-neuchatel

By | 2019-08-29T14:05:59-07:00 August 29th, 2019|Member Articles|0 Comments