How can you increase diversity in English football management without a ‘Rooney Rule’? - Episode 25

Published 22 October 2014 By: Sean Cottrell

Rooney Rule podcast image

The lack of representation of ethic minorities at coaching and management levels in English football has been widely discussed in the media over recents weeks and months. The debate on how to improve representation of minorities in football has largely been framed around the adoption of something akin to the NFL’s ‘Rooney Rule’. However, whilst it is positive that this is hitting the headlines and raising awareness of the issue much of the debate has overlooked legal practicalities of applying such a rule to English football. 

In this podcast Sean Cottrell, CEO of LawInSport, interviews Elaine Banton, a barrister specialist in employment discrimination and sports law at 7 Bedford Row Chambers, and Troy Townsend, Education and Development Manager at the organisation Kick It Out, to get their views on whether a something like the ‘Rooney Rule’ could legally be adopted in English football and what steps can be take now to improve the representation of minority groups at coaching, management and board room level in football. 

 

We welcome comments, suggestions and feedback. You can reach contact us on Twitter at @LawInSport and @SeanLawInSport.

For specifics information regarding the 'Rooney Rule' see related articles below. 

A special thank you to Manali Kulkarni for transcribing the interview.

 

Transcript

SC: We’ve heard a lot in the press over the last, probably, six months to year on the Rooney Rule. BBC- Radio 5 live did a podcast about it earlier in the week, there’s been a lot of press written about it. Elaine, you’ve written on the legality, which we’ll come onto, of applying the Rooney Rule over here.

Troy, could you just give us an overview of what Kick It Out does as an organization and what your role is?

TT: So as an organization we, I suppose, we look to advocate change within various fields of the game. My role particularly is Education and Development Manager, so we look at educating young players, scholars, 16-18, on equality and diversity.  We talk about the change in environment. We try and get a good honest discussion about what goes on within their environment. And what we try and do there is, to get better of the individual player, is get them to understand the kind of topic or conversation that goes on higher. There’s a really good field of understanding for that kind of work.

The other part of my work is trying to help underrepresented groups gain employment within the game. So, throughout all walks of the games, whether it’s through media, whether it’s through admin, whether its just working in your local community club, we put on events that help them speak to mentors, professional people who already work in the game, to advise or, kind of, check that what they’re doing, or where they’re trying to get to, they’re on the right part.  

We’ve had a number of real good success stories come out of that as well. When I say underrepresentation, I don’t only speak about ethnic minorities. I speak about women. We talk about the underrepresenting of women in the game. You know those with disability, those from faith groups, your LGBT community. So right across the board, just making sure that football is fair, reflective and inclusive as well.  You know, we were 20 years old last year and people are saying that there shouldn’t be Kick It Out still around. Well, unfortunately, you know, as we can see now, there’s very much a need for Kick It Out, and very much a need for, you know, a campaigning organization to affect what goes on in football at the moment. Unfortunately there’s an increasing level of discrimination within the game - right across the board. And, I’m not just going to pick out fans here, and it is something that Kick It Out are very passionate about and want to make sure that we are a part of the process that advocates change within the game.

SC: Thanks Troy. I’m looking forward to hearing about your perspective on the Rooney Rule. I know you’ve got some interesting views. The reason why I wanted to bring you in to the interview today was because of your depth of knowledge across the sport - from grassroots to the professional game. I think it provides a very helpful perspective. So look forward to hearing from you in a bit.

Elaine, you’re a barrister. Employment law, equality, and diversity are your areas of specialism. Can you just talk about your area of practice and your expertise in other areas of the law, outside of sports law?

EB: Basically I do a whole range, in terms of employment law, discrimination law, human rights, and sports law. It’s very much with a discrimination sort of overview. So it could be dealing with individuals and their issues, or it could be dealing with larger employers, local authorities, organizations, or charities. It’s a real mixture. But generally the issues do involve a larger employment or contract context, or discrimination or human rights remit.

“it’s unclear that that [the Rooney Rule] could be lawful, as the law stands currently in the UK.”

SC: So back in June, you wrote a piece for us on the Rooney Rule and its application to English law. There’s been a lot of talk about adopting the Rooney Rule. It’s been attributed to having a lot of success in bringing minority groups to have representation with coaching staff in the NFL. What is your view? If you could just give us a brief overview of your view on the compatibility of the Rooney Rule to English law and do you see it fitting? Would it be something that can be adopted over here?

EB: Well, it’s a very interesting issue in itself. Obviously, the Rooney Rule has been successful in the NFL in the US, in terms of bringing about greater diversity, in terms of coaching staff in the NFL. Obviously though, there is a difference between the culture in the US and the culture in the UK. In America there’s been a history of segregation and the Civil Rights Movement, which also adopted affirmative action. So they are very used to having in place, in terms of employment practices, quotas, and other affirmative action initiatives, which in the UK we don’t have a similar history of. So, whereas the Rooney Rule in itself is, has been, very successful in America, what it’s done is basically said, you have to interview, for a particular post, for which the rule applies, you’ve got to interview an ethnic minority candidate. So, effectively, it is about giving equality of opportunity. It doesn’t necessarily mean you’re going to appoint an ethnic minority coach, but it does mean you have to give them an opportunity to be interviewed-at least one candidate.

But that in itself sounds like a very reasonable principle. However, it’s unclear that that could be lawful, as the law stands currently in the UK. Because what you’d be saying to an employer is that you’d have to interview an individual. Whereas what we do have which is lawful at the moment in the UK, which in my opinion is under used, is ‘lawful positive action’. So under the provision of the Equality Act you have sections 158 and 159, which allow for positive action. Now that is different from positive discrimination and different from quotas. And quite often you see people talking about all of these issues as if they’re the same thing, when in fact they’re not. Positive discrimination is unlawful, that would be more like quotas, saying we’re going to make sure we just employ a woman or an ethnic minority because we need to have two candidates, for example. That would be unlawful and that is not what we are suggesting at all.

What’s quite interesting is that as the Equality Act stands today, an employer could use initiatives to bring about more diversity when dealing with underrepresented groups- which ever that group might be. Might be a lack of women, lack of disabled people or lack of ethnic minorities.  So when they are looking at appointment, recruitment, or promotion, or even training, they can look at trying to increase diversity, where there is an underrepresentation.

“what an employer could practically do, they could for example look at training initiatives or mentorship, or even, say, an Open Day to encourage more applicants…”

SC: And how would they look to do that?

EB: Well, what they can do is, under the Act, it means that an employer has a defense to any claim of positive discrimination. So they are allowed to work within, as long as it is a reasonable stance to take, i.e. there’s a clear sign of underrepresentation and that’s judged locally to the regional area and the particular post. Usually you’ll be able to identify an underrepresentation, and then what an employer could practically do, they could for example look at training initiatives or mentorship, or even, say, an Open Day to encourage more applicants and understanding of this particular post or opportunities that are available. So that could be the first stage and that would be entirely lawful.

The second stage when you’ve perhaps increased your pool because you’ve increased training and awareness, and exposed people to particular opportunities that arise, the second stage then could be to utilize section 159 of the Equality Act which applies to recruitment and promotion. Now, that’s a particularly powerful provision.

“…the Rooney Rule would be difficult, if not unlawful, to adopt…”

SC: So basically to sum up what you’re saying, the Rooney Rule would be difficult, if not unlawful, to adopt the Rooney Rule over here, and that a better way would be to continue to encourage minority groups, to, and, host events to encourage them to take up training and education, and qualifications to enable them. And then look at processes within an organization, in this case a football club, to make sure their processes are more transparent and that encourage a better representation in the recruitment process.

EB: Yes, because what the Act envisions is what an employer, where there is underrepresentation, could in the employment process where there are two equally qualified candidates, they can, choose to appoint the minority candidate, whichever minority they’re from. So for example it could be a female or it could be someone from an ethnic minority. That is potentially a very powerful provision that could really help address the diversity and it is lawful. And, it avoids the confusion or connotation, which sometimes gets introduced into this debate about quotas and is the Rooney Rule about quotas. And this can be quite difficult because it potentially sets back the discussion we are trying to have. 

“what you need to secure, before it is going to have any effect, is first of all a recognition that the culture as it stands needs to change”

So an employer could obviously take those steps. However, my understanding of the way the recruitment process has currently undertaken is that for whatever initiative is introduced what you need to secure, before it is going to have any effect, is first of all a recognition that the culture as it stands needs to change. Now that’s very important because a lot of people need to be behind this, otherwise you can have all the policies drawn up but it’s not going to be implemented.  So you need to have that. And second of all, perhaps even more importantly, is that you need to have transparent and open recruitment practices, so that, for example, individuals actually know when positions are vacant and how they can apply so they have an opportunity to actually be interviewed. I think you need to have those things in place for any initiative to have any really difference and to work.

“when a manager gets sacked, what is the process: Is it open? Is it out there for all managers, coaches to be able to apply, or are you just keeping it in-house?”

SC: So Troy, we just heard from Elaine, saying the Rooney Rule was not applicable here. We hear a lot of people saying it should be adopted. What’s Kick It Out for you and then also, from your experience, what do you think will be effective?

TT: I think in terms of our view, our Chair, Lord Herman Ouseley, is quite strong in his views about the processes and he questions them on a regular basis. I think as an organization we realize that it would be difficult to implement the rule in the format that it stands in the NFL. I think everyone should really understand that there’s no way you would get the Rooney Rule working in football the way it works in American football. The adaptation for that is open for discussion, and that discussion itself would take a really long time. For us, it’s the effect of employers, what they truly understand, how we can change the mindsets at that level of the game, practices that they have –you know, when a manager gets sacked, what is the process: Is it open? Is it out there for all managers, coaches to be able to apply, or are you just keeping it in-house? Is there a process behind a process kind of thing. Is it, “well, we know we want A but we’re going to put it out there to B and C just so it pleases everybody?” So you know, the whole procedures that are in place at football clubs is something that we want to change. At the moment, I think it’s quite predictable, you know, if a manager gets sacked, most of the time it is quite predictable what happens.

“football has to really look at itself in the mirror and decide, how are we going to affect this change, how’re we going to implement employment law within its own game.”

SC: Can you just allude to some of the processes? You know, we were talking about this earlier, and from my experience coming into sports law and into the business of football, I was quite shocked at some of the practices. You know, because, we assume that there is big money in football, particularly at the top end of the game, and therefore you just assume that the business processes are professional, as you would expect from other sectors such as law or accountancy or finance, for example, but that doesn’t always seem to be the case.

TT: Football- I’ve mentioned this earlier- is a law onto itself. Football breaks itself away from kind of the norm. You know, it thinks that it’s in its own world. I think that in doing that football doesn’t appreciate the processes that are out there in general law. You know, in general employment law, football doesn’t appreciate those processes so, you know, sacking a manager, getting rid of him, whatever else, mutually agreeing stuff, there could’ve been a process in place quite a while ago. “We’ve had some bad results. We’ve identified somebody. How do we get rid of this one? If these results continue, what do we do? Let’s keep talking to the man we have in place and then we’ll make a decision on this one. Let’s wait for one really big result- there we go, there’s the result, let’s get rid of him. 24 hours later, somebody’s in place.” I’ve never known a recruitment process that can go at quickly. It’s not open, it’s not transparent. You’ve already identified an individual to take a role that someone is already in- that can’t be right. So, football has to really look at itself in the mirror and decide, how are we going to affect this change, how’re we going to implement employment law within its own game. I’m not quite sure football is really open to that process. I’m not sure football would want to go through that process and get in, I’m going to use this term, we all talk a good game but when it actually comes down to actioning the kind of we want to happen within the game, there is no process behind that. It’s what matches the needs and wants of a football club. So if there’s a chance that a chairman of a particular club says, “I want the best manager that I can get. I want a manager that’s going to win me titles, that’s going to make me play a certain way." You don’t go out there and go, “Well let’s just put that all out there and see who applies.” You go, “Well, I want him,” and then you try and go for him.

“There’s 2% of black managers- 2% of ethnic minority managers- in the game at the moment. There’s nearly 30% playing the game.”

SC: So, would you say then, because you know, I’ve been to discussions here at 7 Bedford Row, where there have been sort of heated discussions and the press is saying things happen and people get rather defensive in football with accusations saying that they’re racist. So it may be that some are, you don’t know, whether directly or indirectly, that are prejudice, not only racism, but also other forms of prejudice. So, really the processes at the moment are just lending themselves to that. It may be that, what may be perceived that way, it may be possible that the people doing the recruitment go, “Look, I’m not prejudice. The people who are qualified at this moment for the job are white managers”. While they may not be actively be discriminating against minority groups because the processes aren’t transparent; that’s what’s causing the problem and that’s what needs to be fixed.

TT: There’s 2% of black managers- 2% of ethnic minority managers- in the game at the moment. There’s nearly 30% playing the game. I don’t know what the figures are for “out of work”. When I say “out of work” I mean qualified but not able to find a job in the game. I don’t know what those figures are, and probably that would probably be a good piece of research to find out what percentages of black and ethnic minority coaches, managers are out of work and are not working in the game. So, they’ve got the badges, they’ve gone through the procedures they have to go through to get yourself qualified, have you got a job in the game? No. Have you applied for a job in the game? Yes.  You know, it’s never highlighted who applies for jobs. They always say 30 applied. Who are the 30? No one knows- it’s just a figure. 30 have applied. Ok. What needs to happen is, 30 have applied then list the 30.  List the 30 and let’s see who is applying for these jobs.

“what the Rooney Rule has done, successfully in America, is slowed down the recruitment process”

SC: I want to come back [to you on this] because I know you have some really interesting views on another part of that process.

Elaine, from other professions, in law for example we talked about diversity schemes; what do you think can be adopted where there’s more transparency, maybe some diversity schemes, where it makes more obvious and easier for people from minority groups to apply. Would that work in football?

EB: There’s no reason why it couldn’t work in football. There would need to be a commitment for it to have real effect. But there’s nothing stopping some sort of initiative from being adopted. You’ve got powerful organizations, such as the FA, Premier League, who bring the clubs together to draw up and agree to an action plan, for example. You could have training and mentorship, you could have a talent management program where you could identify key individuals, an organizational strategy, where you could actually be clear in what sort of training and mentorship you want across different levels, and also clear aims and objectives being defined so that there could be a real commitment to this. And, I think it is interesting that what we can actually learn from the experience of the Rooney Rule, and it really touches on what Troy was saying earlier, is that- what the Rooney Rule has done, successfully in America, is slowed down the recruitment process. Whereas you can see here, very quickly, almost overnight, a manager is appointed, without what appears to be, any form of recruitment practice. In the US they’ve had to interview that ethnic minority candidate. In that way, it has slowed down that process and has widened the pool, in terms of the talent that is being looked at and identified. And that really is key. What we want is to impart that into the system here. There’s actually no reason why, what we see happening in other industries and other practices such as, you know, in the legal field, in banking, in all sorts of different industries, there’s no reason why these practices, recruitment practices, can’t be adopted in football. What we are really talking about is open and transparent procedures with accountability.

“there are many initiatives out there that are looking to challenge the processes as they are at the moment”

SC: So, it’s interesting you mentioned this, it seems like we are going over the same things Troy was going over- transparency, its good business practices. Hopefully you’d like to think that generally, good business practices would make it better - make more money and more stability for the clubs. We’ve seen this with financial regulations; there’s a lot of debate around [the effectiveness] FFP, financial regulations across the different leagues. However, one thing that we do know is that there have been no clubs in the last year got into administration because of it - because they adopted better financial models that are allowing more stability. Troy, I know that you are on, currently going through the On Board scheme at the moment. Can you just talk about that? Because that seems to have given you a unique perspective on what’s going on at the top end of the game, particularly within clubs. Would really like to hear your view on that.

TT: Well, just before that, Sean, sorry, I was just going to say that there are many initiatives out there that are looking to challenge the processes as they are at the moment, getting better representation in terms of coaching, getting better representation in the media. Because we talked about football, in terms of just the playing side of it, the managing side of it, but, you know, how many ethnic minority people do you see on your television, presenting your sports programs? So, you know, we talk about that end of the game, but there’s this whole perspective we need to think about, this wider market we need to think about, and there’s a number of good initiatives actually in place at the moment that are trying to help develop individuals or people who want to go through those roots. They’re challenging, and there are barriers; no one should say there are not barriers for people to go on and get employed within those industries. But you know there are a number of good practices that are in place. The On Board program is one of them.

“it’s made me understand a lot of what football is doing wrong at the moment”

Last year I kind of watched from afar the program come into place, and it’s about better representation within the boardroom level which is a particular passion of mine. Because if you’re going to try and affect and make decisions, the real, important decisions, that are going to affect and ripple down to the level of the game that we want them to, you have to affect the boardroom. You know so a number of, I think it’s 12 or 15 people, from football- the background of ex-players or coaches have gone through the process for the On Board program, and are currently looking at positions where they’ll be mentored, and they’ll be able to sit on the governing bodies’ boards. For me, just sitting on them is not good enough, but sitting is a start. Then they will be able to add value to the process along the way.

I’ve been to one of the On Board meetings so far, we’ve had one meeting and it’s like I’m back at school, but it’s great because it has opened my eyes up to- it’s quite scary- it’s made me understand a lot of what football is doing wrong at the moment. And you know, it opened up my eyes. You know I come from a coaching background and a playing background, and all we ever know about is what happens on the green pitch, and you know, some years ago I thought to myself, “I want to add value to the game.” That’s one of the reasons I approached Kick It Out to come and work there. I volunteered first and foremost, and luckily I got a position there.  Because I want to affect the game now with the knowledge that I have in a different field and working at Kick It Out has given me that opportunity.

This On Board program is the next process of that. Because it’s, you know, it’s been identified that they’re not been doing everything right at the boardroom level. So, what it’s done is enabled me to look at, kind of like, the policies that are in place and it’s abled me to understanding governance, not just in football, but in other fields as well -other sectors as well, and where things have gone wrong and what the law says about that. And by the end of it, whether I pass or whether I don’t pass, and hopefully fingers-crossed I pass, it will make me a better individual, not only to challenge, but also to understand the processes at the top level, would enable me to go and sit on boards. It doesn’t have to be within football, it can be at the housing association, but just to understand how these different industries work at that level. For me, someone, who many years ago, just wanted to play football and didn’t care about anything else that happened in the game as well as I got the ball in the back of the net- for me, that’s a whole story and a change in my personal career, and if I am able to eventually, you know, to sit on one of those boards and affect change for the better of the game, then I’ll feel that I’ve come, kind of almost, you know, round in a full circle. You have the likes of Les Ferdinand and Jason Roberts, you know good people in the game who have gone from the playing side of the game, very quickly transferred into the boardroom level of the game, and they can add value so much, because, you know, sometimes people say well you don’t really know the game unless you’ve played. I’m not- I don’t advocate that- but they can come from a playing background, so it means they can understand the game more, and add value to what is being said within the boardroom, not just from the office level, but from the real ground level.

SC: I guess it gives it more creditability. 

TT: And it gives it more credibility. It’s how you see it but you know, football needs to understand that the boardroom level needs to understand what goes on on the pitch, and those on the pitch want to know what goes on on the boardroom level. And if we can get good marry of the two, then I think we are going along the way of helping football understand where it needs to be. We are trying to affect change right across the board where it needs to be- and I’ve said it earlier- but it has to be from the top.  I know a lot of things are from the bottom upwards, but in football you have to work from the top.

“There’s no point in bringing it in at middle ground level, managers, coaches, if you’ve got the same people making decisions at the top end”

SC: You mentioned some interesting statistics; I think it was on ITV that you said about the representation on boards.  Do you have those figures?

TT: In terms of the representation on boards, it is quite scary- in terms of ethnic minorities representation on these boardrooms now. 15 out of 20 clubs are all white within their boardrooms. The 5 clubs that have representation are mainly because of who their owners are. For me, that kind of shows, I mean that means that the board rooms are not inclusive, it means that there’s one kind of opinion in those boardrooms, and there’s not an understanding of certain backgrounds, particularly those that play in the game. Maybe 30 to 40 % are from an ethnic or minority background that play the game but that’s not being represented at the management level and that’s not being represented at the highest degree. If we are going to bring a Rooney Rule or type of a Rooney Rule into this game- into this industry- we have to start up there first and foremost. There’s no point in bringing it in at middle ground level, managers, coaches, if you’ve got the same people making decisions at the top end.

“there needs to be recognition - that the culture needs to change”

EB: I would totally agree with that, Troy. I think it really goes back to, what I was saying earlier, about there needs to be recognition- that the culture needs to change. And for that to really have any effect that has to start from the very top, because this is where the decisions are made. So, I think the On Board program is potentially very effective program (TT: It’s a start) if that can be adopted, and if individuals and organizations can really get behind that.

It’s a way to potentially affect change. Because with all the policies in the world, if you don’t have the commitment to see it through then you aren’t going to see change whatsoever. So I think that’s some really, really helpful and I’m pleased to hear that it is already having an effect.

SC: It sounds to me that there’s some quite, relatively simple procedures that can be adopted from our industry that are already in existence at the moment.

TT: Nothing’s simple in the game.

SC: Troy, may be not simple, but can definitely be adopted, maybe changed slightly, to accommodate football, over maybe a transitional period, both through transparency and openness of the procedures, through better representation on the board level, and I believe that from our earlier decisions, and from today, that, that is just basically good business.

SC: Well that’s all we have time for this show. I would just like to thank Elaine Banton from 7 Bedford Row, and Troy Townsend from Kick it Out for their contribution to the podcast.

If you would like to know more about the application of the Rooney Rule to English football, you can go to lawinsport.com and go to our football section, or you can see the link contained in the description below if you’re listening via SoundCloud or ITunes.

Thank you for tuning in. And remember, if you want to stay informed about the latest legal issues and developments from the world of sport, go to lawinsport.com or follow us on Twitter @LawInSport, or go to our YouTube channel- LawInSportTV, or you can follow me: @SeanLawInSport on Twitter. Have a great week. 

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Sean Cottrell

Sean Cottrell

Sean is the founder and CEO of LawInSport. Founded in 2010, LawInSport has become the "go to sports law website" for sports lawyers and sports executives across the world.

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