Saturday August 6th, 2016

This Saturday, the U.S. women’s volleyball team will play the Puerto Rico women’s volleyball team in the opening round of the 2016 Olympics in Rio. You might wonder why two groups of U.S. citizens would compete against one another. After all, the Olympic Games are an international competition that, through medal counts, measures how athletes from different countries perform.

The simplest answer for why Puerto Rico has an Olympic program is two-fold: The International Olympic Committee (IOC) has exclusive authority to determine which states count as countries for purposes of Olympic law, and the IOC regards Puerto Rico as a country.

Puerto Rico, however, is not considered a country by the world’s governments. So why does the IOC treat it as one? And if Puerto Rico is a country for purposes of the Olympics, could other U.S. geographic regions that are not states form their own Olympic teams?

I tackle some of these issues below.

Puerto Rico and its territorial status

Puerto Rico, a tropical island located about 1,000 miles southeast of Florida, has been a U.S. territory since 1898. It formally became a U.S. possession as part of the Treaty of Paris, which was signed by the U.S. and Spain as a means of ending the three-month Spanish-American War. That war, which was precipitated by the sinking of the U.S.S Maine and the deaths of 266 sailors on it, involved the U.S. army invading and then occupying Spanish-held Puerto Rico. The U.S. has not left the island since.

The legal relationship between the U.S. and Puerto Rico has evolved over the last 118 years. Military rule has given way to looser methods of control. A landmark change occurred in 1952, when the U.S. Congress approved the “Constitution for the Commonwealth of Puerto Rico.” This Constitution ensured that Puerto Rico would possess local governing control and some degree of self-determination.

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Puerto Rico has its own governor, legislature and court system. This framework accords Puerto Rico with substantial control over local laws and educational policies. Puerto Rico also has two official languages—Spanish and English—and Spanish is considered the primary official language.

The U.S. government nonetheless has a firm presence on the island. It generally manages military and foreign policy matters impacting the island. Puerto Rico also uses the U.S. dollar as the island’s currency and is subject to the jurisdiction of U.S. federal courts. Persons born in Puerto Rico are U.S. citizens, although Puerto Rico does not vote in Presidential and Congressional elections. In fact, Puerto Rico’s only formal representation in Washington D.C. is a non-voting “Resident Commissioner to the U.S. House of Representatives.”

While possessing control over Puerto Rico, the U.S. has maintained that Puerto Rico ought to be regarded as a self-governing entity pursuant to its compact with the U.S. For their part, Puerto Ricans appear more interested in statehood than in obtaining independence: in 2012, Puerto Ricans who voted in a nonbinding referendum overwhelmingly favored shifting to statehood or preserving its commonwealth status to declaring independence.

The IOC’s reasoning behind classifying Puerto Rico as a “country”

Even though Puerto Rico is not an independent country and even though data suggests that most Puerto Ricans do not seek independence, Puerto Rico is classified as a “country” under Article 30 of the Olympic Charter. Article 30 defines a country as “an independent State recognized by the international community.” Notice that the IOC’s definition of “country” does not demand the traditional requirements of a nation state, such as a single government or defined geographic borders. The IOC’s test is merely that the state be “independent,” which is an imprecise adjective, and that it be “recognized” by an undefined “international community.”

The IOC has deemed Puerto Rico’s Olympic Committee as representing a “country” for the last 64 years. The IOC has been convinced that Puerto Rico possesses the requisite level of autonomy. Puerto Rico is also viewed as having a national identity that is unique and different from that of the U.S. The IOC’s reasoning is consistent with the views of many legal scholars who have studied the relationship between Puerto Rico and the U.S. While Puerto Rico legally belongs to the U.S., it acts as a mostly separate and sovereign entity. The IOC’s recognition of Puerto Rico as a country is also consistent with its identical recognition of other U.S. territories, including Guam and the U.S. Virgin Islands, as countries.

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The IOC’s ability to decide what “is” a country should not be viewed as reflecting the approval of any government. The IOC is a private, non-profit entity. It makes decisions as it sees fit. In other words, the IOC’s determination of what counts as a country does not need to mimic determinations of governments or those of international groups.

Along those lines, the IOC has made controversial determinations in regards to classifying certain states as countries. This was true in 1965, when the IOC recognized Rhodesia as a country. At the time, Rhodesia was a territory wrestling for independence from Great Britain. It would be 15 years before Rhodesia became the nation of Zimbabwe. The IOC also made a controversial decision in 1993 when it recognized Palestine as a country. Some countries recognize Palestine as a country while others do not.

Could there ever be a “Washington D.C. Olympic Committee”? Probably not...

If U.S. territories are “countries” for purposes of the Olympics, then what about our most influential non-state: Washington D.C?

The very idea of the nation’s capitol competing against the nation in the Olympics might seem preposterous, even treasonous. And while the IOC has not shied away from controversy, for it to recognize D.C. as a “country” would be its most provocative recognition yet.

But some residents of D.C., where car license plates say “Taxation Without Representation” and where the lack of statehood remains a divisive issue, could welcome a discussion about having their own Olympic teams.

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The District of Columbia has been around since passage of the Residence Act in 1790. The Act called for Maryland and Virginia to cede territory where the federal government would be located. A decade later, Congress would hold its first session in the Capitol City. The existence of a federal district is constitutionally authorized. Article I, Section 8 of the U.S. Constitution calls for Congress to have exclusive jurisdiction over a federal district that is not part of any state. That district is Washington D.C.

D.C. has withstood many challenges over the years, including substantial damage during the War of 1812 and the Civil War’s Battle of Fort Stevens. The rights of D.C. residents have also experienced challenges. Congress has mostly dictated D.C.’s government for the last two centuries, leading local officials to sometimes be viewed as figureheads or puppets.

But recent times have offered some improvements for D.C.’s power.

In 1961, the Twenty-third Amendment to the U.S. Constitution was ratified and it extended the right to D.C. citizens to vote in the presidential election. 12 years later, Congress passed the District of Columbia Self-Government and Governmental Reorganization Act, better known as the Home Rule Act. The Act empowered D.C. citizens by authorizing an elected legislature. On the other hand, the Act stipulates that Congress enjoys veto power over D.C.’s municipal affairs and budgetary matters. In addition, the U.S. President appoints judges to the two local courts (the District of Columbia Court of Appeals and the Superior Court of the District of Columbia). Further, the proposed “Washington D.C. Voting Rights Amendment” to the U.S. Constitution—which would have given D.C. citizens representation in the House of Representatives and Senate—expired in 1985.  Like Puerto Rican residents, D.C. residents only have a non-voting Delegate in the House of Representatives represent their interests in Congress.

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So residents of D.C. and Puerto Rico are similar in that they enjoy some autonomy while being denied full access to the powers of the federal government. But there are important differences. As mentioned above, D.C. citizens can vote in presidential elections whereas Puerto Rican citizens cannot. D.C. residents must also pay federal income taxes, unlike most residents of Puerto Rico. D.C. is also a conceptually different entity from a U.S. territory. It is a federal district that exists to serve as a location for the federal government. A U.S. territory, in contrast, is a geographic area that is controlled by the U.S. but is neither admitted as a state nor serves a formal function for the government.

The legal argument for D.C. to have an Olympic team is therefore weaker than it is for territories.

D.C. might also not be as well positioned as Puerto Rico to field Olympic teams. While Puerto Rico has a population of 3.7 million people, D.C. only has a population of 660,000 people.

Still, it’s fun to think about the possibilities of D.C. teams in the Olympics. Let’s say eligibility to play on a D.C. Olympic team required birth in D.C. or a significant numbers of years spent there, such as by working in D.C. or attending a D.C. college like Georgetown or Howard.

Would Kevin Durant suit up for his hometown D.C. team instead of the U.S. team? How about swimmer Katie Ledecky or ice skater Lorraine McNamara? The U.S. and D.C. teams would compete over them. And with baseball a sport in the 2020 Summer Olympics in Tokyo, a team led by Bryce Harper might be a medal contender. Then consider D.C. athletes who are not quite good enough for the U.S. team. Would John Wall star for the D.C. team? Perhaps Allen Iverson could come out of retirement and be the Answer.

Nah. A better use of our time would be to watch the U.S. play Puerto Rico on Saturday. We’ll see which country advances.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. McCann also created and teaches the Deflategate undergraduate course at UNH. He serves on the Board of Advisors to the Harvard Law School Systemic Justice Project and is the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is also on the faculty of the Oregon Law Summer Sports Institute.

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