Fighting discrimination in sport: Positive Action v Rooney Rule

Published 02 June 2014 By: Elaine Banton

Chris Hughton
The recent row over Richard Scudamore’s comments relating to sexist emails sent from his work address has again highlighted equality issues in football. In this article, Elaine Banton, examines whether positive action may have a role in tackling diversity issues off the pitch in football.
Around a third of professional footballers in the UK are black or mixed race,1 yet there are currently no black managers in the top five divisions in England2 following the sackings of Chris Hughton from Norwich City and Chris Powell Charlton Athletic in the 2013-14 season.3
 
Would it be fairer to see talent from these communities reflected in diversity of appointment as managers and coaches? If so, how do we obtain an improvement in representation? Recently there has been much debate of the "Rooney Rule"4 in football, following its successful use in the NFL, in particular to the potential recruitment of coaches and managers. The Professional Footballers Association (PFA) have called for a number of initiatives to develop mentoring programmes but have also stated their desire for the "Rooney Rule" to be considered.

What is the Rooney Rule?

Established in 2003, the Rooney Rule requires the NFL to interview minority candidates for head coaching and football operation positions. Subsequently there was a jump in the appointment of African American coaches from 6% to 22% (currently 12.5%) and since 2003 to 2014 some 13 African American coaches have been appointed5. The Rooney rule now applies to all ethnic minorities. However whilst the application of the Rooney Rule has worked well in the USA (and fits their history and struggle, with emphasis on affirmative action) it is unclear whether it would be lawful in the UK and more importantly, whether it is actually required in the UK. This is because "positive action" (described below) is lawful in the UK; but not positive discrimination or affirmative action as seen in the use of the Rooney Rule in the NFL.
 
Positive discrimination in the UK or affirmative action in the USA is regarded as the preferential treatment of members of a minority group over a majority group, by a protected characteristic such as sex, race, age, marital status or sex orientation, etc. This is done in order to correct disadvantage among the minority group. Positive discrimination may include the use of quotas, so that a black candidate could take precedence and be selected even if they were not as qualified as the other candidate. Positive discrimination is currently unlawful in the UK and is generally seen as going further than lawful positive action.

Positive Action and the Law

All is far from lost as application of "positive action" could see similar results as hoped for by BACA (Black and Asian Coaches Association) and the like. Indeed "positive action" featured prominently in Kick It Out's conference in July last year on the Embracing the Business Benefits of Diversity6 and is supported by them. BACA have recently embraced the provisions of the Equality Act 20107 ('the Act') as a potential way forward. Sections 158 and 159 of 'the Act' have extended the previous provisions for positive action from the traditional field of training, into potentially more contentious areas such as recruitment and promotion. The provisions for lawful positive action now allow an employer to take action that is a proportionate means of achieving the aim to minimise disadvantage or enable those persons to participate in that activity. Positive action can apply to recruitment and promotion as long as candidate A is as qualified as candidate B.

 

Sections 158 & 159 of the Act stipulate that an employer has to go through a number of tests to show that positive action is needed. The steps an employer is allowed to take as part of positive action must be:
  • related to the level of disadvantage that exists; and
  • not be simply for the purposes of favouring one group of people over another where there is no disadvantage or under-representation in the workforce.
Take the example of an employer who identifies from its monitoring data that women are under-represented in a particular field. They could then make clear in their next recruitment exercise that applications from women are welcome and hold an open day for potential women applicants at which they can meet other female professionals. However, the organsiation will not be permitted to go as far as to guarantee that all women will get through the initial stages of the application process, regardless of their suitability.
 
The other potentially more powerful step an employer can take is to use the 'tie-break' provisions when faced with a choice between two candidates who are as qualified as each other.8 However an employer may only choose to use these provisions if it is a proportionate way of enabling or encouraging people from the disadvantaged or under-represented group to overcome or minimise the disadvantage of that group. The provisions of the Act would normally operate as a defence in these circumstances, so that if a potential candidate who was not appointed felt discriminated against, the employer could rely on lawful positive action as a defence to a discrimination claim.

Evaluating the merits of positive action in sporting recruitment

Whilst an employer must not have a general policy of treating people with the relevant protected characteristic more favourably in connection with recruitment, they are lawfully entitled to take action to address inequality in recruitment. Relatively little use is made of the positive action provisions in the Equality Act. This could largely be due to a combination of lack of awareness and a misunderstanding of how the provisions would operate in practice. It is clear that the Equality Act provisions could be used to address the under representation of black and ethnic minority coaches and managers in football, where both training and recruitment could be addressed in a comprehensive manner. The advantage over the "Rooney Rule" is profound in that positive action is lawful in the UK and would certainly make a difference.
 
Discussion of positive action minus the tagline of the "Rooney Rule" would also avoid much of the debate associated with the Rooney Rule, which is potentially misunderstood as an attempt to introduce positive discrimination or quotas (which would be unlawful) and is therefore arguably damaging to the overall aim of a more diverse representation in sport.
 
What of the detractors who might claim that positive action whilst lawful seems unfair? In answer to such criticism, employers do often need a leg up to impart fairness in some areas to reflect society at large. Positive action may not be a panacea for all, but isn't positive discrimination occurring anyway in professional football through closed recruitment policies together with a lack of openness, transparency and quite frankly an eschewing of basic best practises for recruitment? Whilst it is true that not all football clubs have the same recruitment processes and some may be better than others, where are these positions in management advertised, if at all?

Conclusion

The Act allows applicants to challenge a selection process as discriminatory. They may lawfully obtain details of the selection and appointment process. It is foreseeable that at some point in the future, unless these processes become transparent that the appointment of a professional football manager or coach will be challenged on the basis that these closed recruitment practises are inherently unfair and discriminatory. This would be deeply damaging for the game. Utilising the law we have in force now could make serious inroads into addressing the obvious disparity. If we saw the likes of the FA encouraging the adoption of a two-stage programme of training/mentoring and targeted recruitment where ethnic minority managers and coaches were encouraged to apply and in a tie break situation would be employed, we would perhaps see this long standing issue begin to be addressed.

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Author

Elaine Banton

Elaine Banton

Elaine is a barrister and specialist in employment discrimination and sports law at 7 Bedford Row. She is a member of BASL and her practice includes sports law often featuring a discrimination and/or human rights angle. Elaine writes and speaks regularly on sports law matters.
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