Introduction
When one considers India’s ongoing cricket tour of England, while the Indian team comprises exclusively of India born and bred cricketers, the English team has a significant number of members who are either South African or Irish born, and not necessarily citizens of the United Kingdom. The questions therefore arise as to how a ‘foreign’ player becomes eligible to play for a national team, and to what extent these criteria differ from jurisdiction to jurisdiction.
This article will discuss the ICC eligibility criteria in light of the position in India and in the United Kingdom. It should be noted that in order for a player to qualify to play for his national team, in an international cricket match, he must satisfy the ICC criteria as well as the relevant national rules and regulations that apply in that country. Despite centralised criteria established by the ICC, some countries have adopted a more stringent policy with respect to who can play for the national cricket team.
International Cricket Council
The ICC unequivocally has no issues with individuals representing a country that they are not citizens of, only insofar as the requisite resident requirements are fulfilled. It is interesting to note that some of the Associate members of the ICC have a significant number of representative players who are indeed not citizens of their country. For instance, in the recent ICC Cricket World Cup 2011, the Canadian team had only three participating members who were in fact ethnic Canadians. Six members of the squad were from India, including their captain, Ashish Bagai.
According to the ICC Operating Manual, a cricketer is considered qualified to play representative cricket for an ICC member country in the following circumstances:
- the player was born in the country whose domestic cricket governing body is the National Cricket Federation; or
- the player is a national of the country whose domestic cricket governing body is the National Cricket Federation; or
- the player is a ‘resident’ of the country whose domestic cricket governing body is the National Cricket Federation. To classify as a ‘resident’ for the purposes of these regulations, the player must have resided in the relevant country for more than 183 days of each year for the previous four years (two years for female cricketers); or
- if exceptional circumstances apply, as defined in the regulations.
The last of these categories may appear somewhat vague without an example. Accordingly, a recent ICC decision to resort to the exceptional circumstances category of the above criteria helps shed some light on what action the ICC may take in the event of such exceptional circumstance. Prior to the recent ICC Cricket World Cup 2011, the ICC cleared former English batsman, Ed Joyce, to play for Ireland during the tournament, despite the fact that he had not satisfied the four year residential requirement. An ICC spokesperson mentioned that in this case, the required standout period was slightly reduced to enable Mr. Joyce to compete in the tournament. The spokesperson explained that this decision was made based on the exceptional circumstances of this particular case, including the fact that Mr. Joyce had strong ties to Irish cricket from childhood up to senior national representation, as well as his Irish background.
Thus, a player need not be born in the country which he represents on the cricket pitch; the player also does not need to be a citizen of that country under ICC Regulations. While all National Cricket Federations must ensure that every member of their squad complies with these minimum requirements, as mentioned above, this does not prevent the National Governments or National Cricket Federations from imposing more stringent requirements on athletes in order for them to represent their country, as is the case in India. As different standards are imposed by different jurisdictions, each individual cricket player must essentially satisfy two types of criteria: first, the ICC regulations and second, the national regulations of the country they wish to represent.
United Kingdom
Whilst observing a test series between India and England, it is difficult not to notice that in contrast to India’s strict “Indians only” policy in national cricket, England boast a multicultural squad. Some of England’s marquee players come from South Africa and Ireland. This is, however, not just as a result of the England and Wales Cricket Board’s policies, it is largely as a consequence of EU regulations with respect to athlete contracts. In recent years, the ECB, alongside other national sporting bodies and governments, have had to take into account a number of policies as well as decisions of the EU courts (for example, the ECJ), to ensure that their national policies are consistent with their countries’ requirements as a member of the EU.
Two notable decisions by the ECJ that have had far reaching implications on the criteria for representing a country are the Kolpak and Bosman rulings. Both of these cases were heard before the European Court of Justice and concerned the rights of an athlete within the jurisdiction of the European Union and its associated nations. It was concluded in Bosman that since the establishment of the European Union involved a series of nations agreeing to grant equal rights, such as freedom of employment, to members of all other countries within the EU that these rights extended into the field of sports. That is, such rights necessarily extend to athletes who wish to be “employed” by sporting clubs and nations in another country within the EU apart from their own. Legally speaking, this decision concerned certain rights of citizens of EU members, including the freedom of movement for workers, freedom of association as applicable within article 39 of the EC Treaty (to which all members of the EU are a signatory). The effect of this case was to effectively ban any restrictions on foreign EU members within the national leagues of sporting competitions and to allow professional sporting players in the EU to move freely to other clubs within the EU at the conclusion of their term of contract.
The Kolpak ruling, which was handed down by the ECJ in 2003, has more relevance to the question of who can represent a national sporting club within the EU. In this case, the EU declared that citizens of certain countries which have signed a EUAssociation Agreement are afforded equal rights to freedom of work and movement within the EU as EU citizens. Such Associated Agreements include a Free Trade Agreement between the EU and another nation. Under such agreements, the signatory parties offer each other reciprocal rights and equal treatment of members. Accordingly it was determined in Kolpak that individuals who are citizens of countries which have Association Agreements with the EU, and who are currently and lawfully working within an EU country, have equal rights to work as EU citizens. Moreover, it is not permissible to impose restrictions such as quotas upon them, thereby limiting their opportunity to play for the team (essentially, limiting their opportunity for employment by the team). It is interesting to note that countries which fall under the ambit of such Association Agreements include South Africa, Jamaica and Zimbabwe. It follows, that any cricketers from these countries who obtain a legal right to work within the EU, are entitled to represent England at an international event, assuming of course that they satisfy the ICC requirements as mentioned above. Thus, the threshold requirements for a cricketer to represent England are much lower than that in the Indian context. This is evidenced by the fact that England boasts a very multi-cultural national team.
Unlike in India, the U.K. government has not adopted a strict policy whereby athletes must be British citizens in order to represent the United Kingdom at the international level. Accordingly, the ECB does not have to follow a strict government policy, unlike the BCCI, when selecting its national team. However, even if the government did require that only citizens represent England in international events, the UK allows dual citizenship and has a relatively simpler process to become a UK citizen if an individual has British roots. This policy would indirectly affect the ease with which an athlete can represent the UK at an international event.
India
In contrast to the permissive regulations in most other cricketing nations, India sets the bar quite high for prospective national players. Indeed, for any athlete to represent India at an international event he/she must be an Indian citizen. This means that the residential requirements provided by the ICC which allow non-citizens to represent a country are not applicable in India.
In December 2008, the Ministry of Youth Affairs and Sports formally issued a notification asserting that only players who are Indian citizens may represent the country in the national teams and at international sporting events. The justification for this strict regime was articulated by the Ministry of Youth Affairs & Sports in the Policy Denying OCIs the Right to Represent India at the International Level (issued on 26 December 2008).
The honourable Minister stated thus
“Based on this consultation, an overwhelming view has emerged that the best interest of Indian sports would be served by ensuring that players who are Indian citizens only represent the country in the National teams. This would ensure that the limited resources available are invested optimally in building world-class athletes. This would also provide the opportunity of giving international exposure and training to deserving local talent, which would further improve them to world class performance levels. Finally, it would serve the long term interests of the country to emerge as a front runner in the field of sports. In view of the above, it has been decided that, henceforth only players who are citizens of India would be entitled to receive government support for representing the country in the national teams.”
This strict regime, and in particular the 2008 notification, has been challenged by a number of athletes from other sports, most of whom wish to represent India even though they are an Overseas Citizen of India (OCI) or a Person of Indian Origin (PIO). The court has held that such athletes may only compete in national competitions, rather than representing India on the international stage.
Therefore, while NRIs may represent India at international sporting events, OCIs and PIOs are denied this right. Moreover, the Indian Constitution does not permit dual citizenship. The bundle of rights afforded to the people with either OCI or PIO status, is limited and does not extend to national representation at international sports events. While not yet tested in the context of cricket and the BCCI, there is nothing in this notification that suggests its inapplicability to cricketers and the nation’s cricket regulator.
It is also worthwhile to note that the issue of eligibility to represent India in an international sporting event has been addressed in the National Sports (Development) Bill, 2011 which is currently under review. In particular, Clause 22 of the Bill reinforces that only Indian citizens (which may include – non-resident Indians, provided that they possess Indian passports) are eligible to represent India in international sporting competitions. Indeed, the Bill also clarifies that PIOs and OCIs are to be considered as non-Indian citizens for the purpose of this clause.
Conclusion
There are strong arguments for and against allowing foreign nationals to play for a nation’s sports team. The Indian Government’s logic with respect to its stringent policies seems logical with respect to the facilitation of sporting talent within India. That being said, English cricket appears to be on the rise and the ECB is seeing the results of enabling its local talent to interact with foreign players in its ‘multi-national’ county cricket league. Moreover, the ECB has been in a position to select both foreign and local talent to constitute its national team by virtue of its more flexible policies.
In conclusion, the eligibility criteria for national cricket teams are clear cut – a player must simply satisfy both the ICC requirements, as well as those of the national government and relevant sporting body. The latter will invariably vary from country to country based on local law, management perspectives and policies of governing bodies.
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