Sport and equality - the year in review 2018/19Lydia Banerjee
Looking back over 2018 and the first half of 2019 we can see a real momentum in challenging gender equality in sport; some ground-breaking moments for disabled athletes; a change of tone in relation to sexual orientation discrimination; but, sadly, a sense of stagnation in relation to racial equality.
This article provides a snap shot on equality and diversity issues in sport over the last year. There are links provided to additional sources for readers looking for more detail on the issues identified, and the author always welcome further debate.
Gender equality issues in sport
Women’s sport is gaining in recognition, sponsorship and opportunity. In February this year Australia’s leading sports organisations took a firm step towards equal pay across major sports. 17 of Australia’s sporting chief executives combined to produce and release their Pathway to Pay Equality1 a report looking to iron out pay differentials in sport and to try to ensure that opportunities for work are not unfairly skewed towards men. This holistic national approach can be a role model for other nations to tackle the pay differential still prevalent in many sports.
In September 2018 the World Surf League2 announced that it will offer equal prize money to men and women from 2019. The decision came after the League was unable to answer the social media pressure arising from a photo3 of the under 18 medal winners with their prize money. The giant presentation cheques plainly showed that Rio Waida received twice as much for his victory as Zoe Steyn did for hers.
Despite progress in this field there is still a significant disparity in pay in sport. There were no female athletes in the Forbes’ top 1004 highest paid athletes in 2018 and in sports such as football the disparity can be as high as 83%5.
Earlier this year the United States women’s soccer6 team filed a discrimination complaint against the United States Soccer Federation claiming that they play more games (and win more of them) than the men’s team and yet receive less pay. The complaint highlights that it is not just pay which is affected but also, where they play, how they train, facilities and resources available to them and even how they travel to matches. It will be interesting to see how this litigation unfurls and the impact which it has, if any, on the prize money offered by FIFA. WNBA player Diggins-Smith has made a powerful commercial7 demonstrating the disparity in pay in her sport as a female rookie player receiving $40,000 compared to a male rookie receiving $4million on arguably poorer statistics. Let us hope that the momentum to close the gender pay gap will continue.
Equality for women in sport it is not all about the money, there are wider issues around the way that women are treated. Some of these issues came to the fore during the US Open when Serena Williams8 complained that she was penalised by the match referee in circumstances where a male player would not have been penalised. Jess Varnish9 brought a legal challenge last year against UK Sport and British Cycling alleging sex discrimination. At present the discrimination claims have not been heard as the case was dismissed from the Tribunal10 on a finding that Varnish was not an employee or worker but the matter is before the EAT11. Meanwhile Dutee Chand has passed on the baton to Caster Semenya. Ms Chand’s12 challenge to the lawfulness of the IAAF regulations on levels of naturally occurring testosterone in female athletes led to a change in those regulations meaning that she is now free to compete. However, the revised regulations still impose limits on athletes competing in certain events, the most famous of whom is Caster Semenya13 who has now commenced her own legal challenge. The Court of Arbitration for Sport (CAS) have permitted the revised regulations as a necessary, reasonable and proportionate means of achieving a legitimate aim however they have raised serious concerns as to their practical application including the lack of evidence as to the long term consequences of hormonal treatments. The concerns leave the door open for future challenge based on fresh evidence as to the application of the regulations. Ms Semenya14 has appealed the decision and we wait to see whether she will manage to persuade the Swiss Federal Tribunal to overturn the decision of the CAS.
It is not just the athletes who are speaking out about discrimination within sport. A report published in mid-2018 from Women in Sport15 has found that 40% of women in the sports industry report facing discrimination because of their sex.
The University of Central Florida’s Institute for Diversity and Ethics in Sport16 recorded 137 instances of racism in sports in 2018 up from 79 in 2017. A contributing factor to those statistics was undoubtedly the FIFA World Cup hosted in Russia. Russia were charged with fan racism in the run up to the competition in connection with "monkey chants"17 directed at players from the French national team. FIFA introduced a number of new measures to enable referees to try to prevent racist chants including pausing play, suspending the match or even abandoning the match but the players themselves were prohibited from leaving the field of play with the threat of a yellow card for anyone who did so. Forcing someone to remain working in an environment where they are being subjected to racial harassment (or indeed any form of harassment) raises multiple legal and ethical issues. In the domestic context, the clubs, as "employer", have a potential liability for the actions of the fans. Chelsea FC18 took action after Raheem Sterling was the victim of racist abuse during a game. The club suspended four supporters from attending games pending investigations from them and the police.
The conclusions from Florida are supported by research from Kick It Out19 in relation to incidents of racism, homophobia and other forms of discrimination in the top four leagues of English football. Kick It Out reported a 38% increase in the number of incidents between Sept 2017 and Feb 2018 compared to the same period in the previous season. The increase is partially explained by the increased prevalence of social media which provides people with a faceless forum from which to comment. More positively the increase is also partially explained by better systems for reporting offensive comments and greater confidence from members of the public in reporting incidents.
The early part of this year has seen a number of racist incidents particularly in football. One of the most recent being the abuse faced by Danny Rose and Raheem Sterling during England’s Euro 202020 qualifier against Montenegro. UEFA have charged Montenegro with racist behaviour and sanctions will be set down in May if they are found guilty. Racism is not limited to football but there is a sense that it has reached a point in this sport where something must be done.
Early in 2018 the FA announced21 their decision to adopt a Rooney Rule in relation to recruitment. The hope is that by ensuring BAME candidates are on the short list for roles it will encourage greater participation in the coaching and management of the sport from those from BAME backgrounds and consequently create a more inclusive and representative sport. The ECB22 have also adopted a Rooney Rule following its work on the South Asian Strategy23, a plan designed to increase the participation of the South Asian community in all aspects of ECB led cricket. We watch with interest to see how this plays out.
Sexual orientation discrimination
Tackling homophobic discrimination in sport has typically lagged behind tackling sex and race discrimination. In 2018 we saw some very public statements of support for LGBT sport, a reflection of its increased profile and the general public discourse on the subject. In November 2018 Wembley’s iconic arch was lit in every colour of the rainbow as Stonewall FC24 played Wilberforce Wanderers AFC at the home of football. The game was played during the annual rainbow laces campaign25 when players and officials are encouraged to wear rainbow laces to raise awareness and show support for LGBT supporters, athletes and staff.
While there remain very few openly gay athletes in many of the leading sports, we have seen public displays of support from role models across the world. Joe Root26 challenged Shannon Gabriel over his use of homosexuality as an insult – calling him out on the pitch, Root said “Don’t use it as an insult, there’s nothing wrong with being gay”. This year Danish pro soccer player Viktor Fischer27 also challenged fans for chanting gay slurs against him. In his comments to TV2 he said, “The problem for me here is that the word "gay’"was used as an insult…It never should have been [an insult], and especially in 2019 in Denmark, it should not be anymore”. Actions of athletes, coaches and referees all help to challenge the situation and should be encouraged and supported.
Unfortunately, it appears that homophobia is not limited to the field of play. In a survey of individuals in sports media 45.2%28 reported witnessing or being personally subjected to anti-LGBT language or behaviour in the last two years.
Disability discrimination in sport
The 2018 NFL draft made history when Shaquem Griffin29 became the first one-handed player to be drafted by an NFL team. Shaquem and his twin brother Shaquill will both play for the Seattle Seahawks. Shaquem’s story will no doubt be an inspiration to disabled children and athletes and he has a unique opportunity both to educate his team mates and fans on disability and also to role model for the next generation.
Athletes with disabilities are striving to increase the profile of their sports with significant progress having been made in the last 7 years on the coverage available particularly of the para-Olympic sports. It was disappointing therefore when the UCI decided not to live stream the para-cycling track world championships in 2019. The 2015 competition was live streamed so this certainly felt like a backwards step and one which was criticised by Jody Cundy30 – Paralympic champion.
In 2018 another successful Invictus Games31 continued to boost the profile of disability sport. With new platforms for live streaming sport offering fresh opportunities for disabled athletes to have a stage and demonstrate their talents we need to see how these new opportunities can be developed and let us hope that the UCI’s approach will be consigned to the history books.
As I conclude this piece, I am enjoying watching some world class football in the Women’s World Cup. The buzz and the crowds are a huge cause of optimism for women involved in football and sport more generally. There have however been a number of sobering articles reflecting on what might have been for Women’s football but for the fifty-year FA ban that began in the 1920s. I recommend reading Ian Youngs account, The Lost Lionesses32 or Alan Tyers’33 piece on Clare Balding’s documentary on the subject. Plenty of food for thought.
There are many positives in the sporting world, stories of athlete activism and sponsors recognising new markets which help challenge stigma and tackle discrimination. There remains, however, a very real concern about equality in sport. There are legal challenges which will unfurl this year, there are challenges not yet brought and there is the personal challenge to everyone involved in sport to call out discrimination whenever and wherever we see it.
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- Tags: Athletics | Australia | Basketball | British Cycling | Cycling | Discrimination | Equality | FIFA | Football | Governance | Invictus Games | National Football League (NFL) | Surfing | The FA | UK Sport | United Kingdom (UK) | United States of America (USA) | WNBA | Women's World Cup | World Surf League
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About the Author
Lydia is an active member of the Littleton Chambers Sports law group. In line with the broader chambers specialisms Lydia’s core areas of practice are commercial law and employment law. Lydia’s commercial practice encompasses disputes including contractual interpretation, professional negligence and directors’ duties. Lydia’s employment work has a particular focus on disability discrimination but also incorporates all areas of tribunal disputes and high court action in relation to bonuses and restrictive covenants.