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September 12, 2012

Sport and Nationality: the Kalou Case

In 2005, in The Netherlands the gifted Ivory Coast footballer Salomon Kalou who then was a striker for the Rotterdam professional football club Feyenoord applied for accelerated naturalisation with a view to the upcoming Football World Championship in Germany in 2006. Amongst others, Johan Cruyff, national coach Marco van Basten and the Minister for Sports supported his application which was, however, rejected by the Minster for Aliens Policy and Integration. Kalou subsequently started proceedings against the State of the Netherlands before the administrative courts, on which occasion Van Basten promised Salomon Kalou a place in the line-up for the 2006 World Cup for which the Dutch team had meanwhile qualified. In The Netherlands the situation was such that based on the Netherlands Nationality Act (Article 10) the directions for application of this Act include special rules which also apply for top athletes. According to this so-called ‘topsporters regeling’ [elite sportspersons’ regulations] the making of an exception is justified when it turned out that accelerated naturalisation would serve ‘a Dutch cultural interest’ which also included a Dutch sporting interest which could happen in representing The Netherlands by participating in international sporting tournaments and matches. There was also a detailed Circular from the Ministry of Health, Welfare and Sports, of 9 April 1999, to the national sports organisations concerning this matter. In these guidelines the (minimum) sporting performance level for being eligible for accelerated naturalisation was determined. Preferably, the sportsperson concerned should also be a role model for young athletes or for fair play campaigns and the like. He or she must add ‘surplus (excess) value’ to a specific sport or sport in general. During the proceedings, the expert witness in nationality law Professor De Groot (Maastricht University) indicated the manifest applicability of the top athletes regulations which permit accelerated naturalisation by derogation from the standard requirements. The court ordered the Minister to re-evaluate her decision and improve the reasoning underlying it, following which the Minister appealed to the Council of State as the highest administrative law judicial instance. The outcome there was identical. The Minister did not, however, amend her position.

Comment

The Kalou case is a clear example of the application of exceptional public legislation for the purposes of ‘sporting’ naturalisation. Apart from that, it should be observed that never before had a national team coach of the Dutch Football Association (KNVB) attempted opportunistically to reinforce the national team by means of accelerated naturalisation. This author is a principled opponent of such practices, in casu, by receiving Dutch nationality. Salomon Kalou would have also acquired a direct ticket to play, as an EU national, without any impediment in the English Premier League, which obviously was his particular aim at the time – the Premier League being the most prestigious and best paying football competition in the world (cf., for example the World Series in the United States of America as the top of the world competition in professional baseball). Moreover, Kalou by opting to play for the Ivory Coast might still have performed at the 2006 World Championship in Germany, and even appear together with his older brother Bonaventure Kalou, who was an ex-Feyenoord player and at the time playing for Paris Saint-Germain in France. In addition, fate had ironically ruled that The Netherlands and the Ivory Coast were to be in the same group during the pool stage of the World Championship and would therefore have to play each other! From the perspective of the spirit of sport (fair play) as an ethical consideration, another consideration is that Salomon Kalou missed out on the entire qualiciation process for the World Championship and that his participation would be at the expense of another player who possibly did contribute to some degree to the Dutch team’s qualification for the 2006 World Cup.”