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The International Sports Law Journal 2006, No

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The International Sports Law Journal 2006, No CONTENTS Editorial 2 ARTICLES Sporting Nationality: Remarks on the 3 Evaluating Recent Developments in the 48 Relationship Between the General Legal Governance and Regulation of South Nationality of a Person and his ‘Sporting African Sport: Some Thoughts and Nationality’ Concerns for the Future Gerard-René de Groot Andre M. Louw Baseball’s Doping Crisis and New 10 Labour Law in South African Sport: 56 Anti-Doping Program A Season of Expectations? James A.R. Nafziger Rochelle le Roux Public Viewing in Germany: Infront 13 Anti-Doping Law in South Africa: The 60 Guidelines and the German Copyright Act Challenges of the World Anti-Doping Code Wiebke Baars Portia Ndlovu One Size Fits All? Challenging the Notion 16 Extra Time: Are the New FIFA Transfer 66 of a Uniform EC Sports Law Rules Doomed? Simon Boyes Jean-Christian Drolet The International Supply of Sports Agent 20 U.S. Athletic Associations’ Rules 74 Services Challenges by International Prospective Andrea Pinna Student-Athletes - NCAA DI Amateurism Anastasios Kaburakis Sailing Away from Judicial Interference: 27 Arbitrating the America’s Cup Sports Broadcasting: Fair Play from a EU 84 Thomas Schultz Competition Perspective Alex van der Wolk Spear-tackles and Sporting Conspiracies: 41 Recent Developments in Tort Liability for Foul Euro 2000 and Football Hooliganism 88 Play Hans Mojet Jack Anderson PAPERS Co-Branding in Sport: Conflicts and Some 100 Player’s Contracts in Bulgarian Football 110 Possible Ways of Resolving them in Europe Tzvetelin Simov, Boris Kolev Ian Blackshaw Romania’s Court of Sports Arbitration: 113 Sports, Recreation and the Environment 102 Establishment, Competences, Brian Brooks Organization and Functioning Alexandru Virgil Voicu Sport, ‘Horseplay’ and the Liability of 107 Young Persons David McArdle Continued on page 2006/1-2 1 OPINION 10 years of Bosman: The Fight for Player 116 Protecting the Olympic Brand 122 Freedom Continues Ian Blackshaw Roger Blanpain Nationality and Sport 122 Labour Law, The Provision of Services, 117 Robert Siekmann Transfer Rights and Social Dialogue in Professional Football in Europe CAS Provisional and Conservatory 123 Robert Siekmann Measures: An Underutilised Resource Ian Blackshaw Football Players May Take The Shots But 121 Who Calls Them? Lawful and Determined Purposes Required 124 Oliver Hunt for Legal Personality of Sports Structures in Romania Alexandru Virgil Voicu CONFERENCES BOOK REVIEWS Address to the Congress of the 126 Sports Business - Law Practice and 127 InternationalAssociation of Sports Law, Precedents by Richard Verow, Clive Johannesburg, South Africa, Lawrence and Peter McCormick, Bristol 2005 28 November 2005 Sam Ramsamy Introduction to Sports Law in South Africa 128 by Rian Cloete and Steve Cornelius (Editors), Durban 2005 ❖ EDITORIAL On 10 November 2005, in the Olympic Museum in Lausanne Blackshaw, Domenico Di Pietro, Ousmane Kane, Roberto Branco (Switzerland), a scientific conference was held by the International Martins, Janwillem Soek, Emile Vrijman and Andrea Pinna. Center for Sports Studies (CIES) of the University of Neuchâtel on In the meantime, two new projects have been started that are to cul- the topical issue of Nationality in Sports: Issues and Problems. Prof. minate in the publication of two books. The first is Player Agents Gerard-René de Groot, University of Maastricht (The Netherlands), Worldwide: Legal Aspects, which will mainly consist of country studies an international expert on nationality law, was one of the speakers. He and also have a section on European Law and Players’ Agents, and the has elaborated his presentation for that occasion into the leading arti- second is The Selling of TV Rights in European Professional Football, to cle of this issue of ISLJ. In his contribution, he recommends that new which Professor Stephen Weatherill, Oxford University, United general sporting rules be adopted by the IFs to counter ad hoc natu- Kingdom will contribute a study on the European law aspects of the ralization procedures under public law for sporting purposes. On 4 issue and which for the purpose of comparison will also comprise April last at the Asser Institute in The Hague a seminar took place on country studies on the European “Big Five” professional football this issue following the hotly debated question of the occasional nat- countries and others. uralization of Ivory Coast’s Salomon Kalou, a player of Feyenoord Rotterdam, in order that he might play for Holland in the Football On 6 June next, the 6th Annual Asser/Clingendael International World Cup in Germany this summer. Besides Kalou’s lawyer, Prof. De Sports Lecture will take place at, as has become the tradition, the Groot was again a speaker as was Dr Stefaan van den Bogaert, who is Netherlands Institute for International Relations “Clingendael” in also with the University of Maastricht and author of Practical The Hague. The theme of this lecture will be The European Union Regulation of the Mobility of Sportsmen in the EU Post Bosman (The and Sport: Law and Policy and the speakers will be Prof. Stephen Hague 2005). The event was chaired by Nicole Edelenbos, partner of Weatherill and Mr Jean-Louis Dupont, who was counsel in Bosman Boer & Croon Management Executives and a former director of and who now counsels the G-14 in the FC Sporting Charleroi and FC Feyenoord Rotterdam. Lyonais cases versus FIFA on the mandatory player release system for international matches. In December 2005, the anniversary publication The Court of Arbitration for Sport 1984-2004 appeared in print (T.M.C. Asser Press; Finally it should be mentioned that on 3 March 2006 Janwillem Soek, pp. 577). It was produced by the ASSER International Sports Law co-editor of ISLJ and senior researcher at the ASSER International Centre in cooperation with the University of Johannesburg, South Sports Law Centre, successfully defended his PhD on The Strict Africa and Griffith University, Brisbane, Australia. On 9 May the sec- Liability Principle and the Human Rights of the Athlete in Doping Cases ond joint international sports law seminar organized by the ASSER at the Erasmus University, Rotterdam. International Sports Law Centre in cooperation with the Hugo Sinzheimer Institute for Labour Law took place at the University of The Editors Amsterdam. The theme was CAS and Lex Sportiva. Speakers were Ian 2 2006/1-2 Sporting Nationality ARTICLES Remarks on the Relationship Between the General Legal Nationality of a Person and his ‘Sporting Nationality’* by Gerard-René de Groot** 1. Function and definition of nationality nationality law itself. In the United Kingdom, the term ‘nationality’ is Nationality is both in international and in national law an important used to indicate the formal link between a person and the State. The connecting factor for the attribution of rights and duties to individ- statute that regulates this status is the British Nationality Act 1981. The ual persons and States. Under international law States have e.g. the most privileged status to be acquired under this Act, however, is the right to grant diplomatic protection to persons who possess their status of “British citizen”. Other statuses are: British Overseas nationality (Donner 1983). Under national law the obligation to fulfil Territories Citizen, British Overseas Citizen, British Subject without military service and the rights to become a member of parliament or Citizenship and British Protected Person. In Ireland, it is the Irish to have high political functions are frequently linked to the possession Nationality and Citizenship Act 1956 that regulates who precisely pos- of the nationality of the country involved. However, there is no stan- sess Irish citizenship. In the United States, the Immigration and dard list of duties and rights which normally are linked to the nation- Nationality Act 1952 regulates who is an American citizen, but the Act ality of a State under national and international law (de Groot 1989, also provides that the inhabitants of American Samoa and Swains 13-15; Makarov 1962, 30, 31; Wiessner 1989). National States are in Island have the status of American national without citizenship principle autonomous in their decision which rights and duties will (Section 308; 8 U.S.C. 1408). be connected to the possession of nationality, whereas under interna- Also within several other languages a complicated relationship tional law the consequences of the possession of a nationality are also between terms for nationality (in the sense of a bond with the State) subject of discussion (van Panhuys 1959). In sports the possession of and citizenship can be observed. Compare e.g. Dutch: nationaliteit- the nationality of a certain State is - inter alia - of paramount impor- burgerschap; French: nationalité-citoyenneté (see on these terms tance in order to be qualified to represent this State in international Guiguet 1997), German: Staatsangehörigkeit-Bürgerschaft (see Grawert competitions between athletes (Van den Bogaert 2005, 321-389.). 1973, 164-174), Portuguese: nacionalidade-cidadania; Spanish: Nationality can be defined as ‘the legal bond between a person and nacionalidad-ciudadania. But in again several other languages only a State’. This definition is, inter alia, given in Art. 2 (a) of the one term is used for both ‘nationality’ and ‘citizenship’ (e.g. Polish: European Convention on Nationality (Strasbourg 1997). Art. 2 (a) obywatelstwo; Italian: cittadinanza; Swedish: medborgarskap), but fre- immediately adds the words “and does not indicate the person’s eth- quently
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