CAS 2010/A/2071 - Tribunal Arbitral du Sport / TAS

CAS 2010/A/2071 IFA v/ FAI, Kearns & FIFA - Page 10
can be of considerable assistance to Courts or Tribunals if produced in advance of
a hearing, their admission can only be entertained before a CAS Panel on the basis
of the agreement of both parties and with the prior consent of the Panel itself.
IV.5 Merits
41. The modern history of Ireland and its division into North and South has
engendered, as is well known, acute political controversy, and aroused strong
emotions on each side of the border and indeed elsewhere. The Panel, in its
arbitral capacity, while aware of this, wishes to emphasise that it is seized only of
the interpretation of the relevant legal instruments (which are universal in their
ambit in the football world) and in its application of those instruments, so
interpreted, to the facts of the instant case. It is concerned with the position of Mr
Kearns and not with any wider implications which others may perceive to flow
from its ruling in the context of football or otherwise.
42. FIFA as the records shows, has from time to time commendably sought to
reconcile the competing ambitions of the IFA and FAI with the rules, but it is
undisputed that the eligibility of players to play in association teams is currently
governed by Articles 15 to 18 of the 2009 Application Regulations. In such
respect, the IFA contends that Article 16 of the 2009 Application Regulations
applies to Mr Kearns’ specific situation, whereas the FAI and FIFA contend that
only Articles 15 and 18 fall to be considered. More specifically, on the one hand,
the IFA submits that Article 16 applies to cases of dual nationality cases; on the
other hand, the FAI submits that Article 16 is only applicable to players with a
“shared nationality”, i.e. to those who are eligible to represent more than one
association on account of a single nationality.
43. As an alternative ground of appeal, the IFA submits that based on the “1950 FIFA
Ruling” and the subsequent accord which arose between the two associations, the
IFA and the FAI accepted to confine themselves to selecting players with a
territorial connection to their respective areas of jurisdiction.
44. In light of the above, the main issues to be resolved by the Panel, in order to
verify whether Mr Kearns was entitled to a change of association under the 2009
Application Regulations, are the following:
I. What is the proper construction of the FIFA regulations regarding the
eligibility of players to play in association teams?
II. Are the IFA and the FAI bound by a contract, the terms of which supersede
any applicable provision of the 2009 Application Regulations?