A comprehensive guide for sports bodies on tackling discrimination

Published 24 January 2019 | Authored by: Zoe Dudgeon, Elinor Boote

In the light of recent media attention in the sports sector regarding a range of alleged discriminatory events, this article examines:

  1. Why sporting bodies should maintain an equal opportunities policy and encourage a discriminatory free environment:

    1. legal consequences in the UK;

    2. media coverage;

    3. increasing diversity and recruiting the best talent.

  2. What rights sports persons have under the Equality Act 2010 (EqA)1 and implications for sporting bodies:

    1. protection for workers;

    2. liability for discrimination;

    3. possible exemptions and defences to discrimination;

    4. who is liable?

    5. remedies available.

  3. Best practice guidance for sporting bodies in relation to avoiding, and managing, discrimination issues, namely proactive approaches to:

    1. recruitment and access

    2. policies and procedures

    3. tackle issues and complaints early

WHY SPORTING BODIES SHOULD MAINTAIN AN EQUAL OPPORTUNITES POLICY AND DISCRIMINATORY FREE ENVIRONMENT

Legal consequences (in the UK)

Sporting bodies in the UK, in their capacity as employers, have strong legal obligations in respect of discrimination, equal pay and complying with gender pay reporting. As demonstrated by the recent Employment Tribunal claim pursued by former sprint cyclist Jess Varnish (see below for more details), sports organisations may be named as respondents in proceedings leading to potentially significant adverse publicity.

Sporting organisations can face serious consequences for breaching the legal requirements including civil action in the courts and the Employment Tribunal. They could also face investigation by the Equality and Human Rights Commission (EHRC) who has the power to issue unlawful act notices and action plans and impose unlimited fines for breaches of the EqA.

Court and/or Employment Tribunal hearings are usually held in public and open to the media to attend. As discussed above, press coverage can have very damaging effects on sporting bodies’ as well as players’ reputations, funding and support from fans.

Therefore, it is essential for sports bodies to recognise this behaviour and properly handle allegations of discrimination to minimise legal exposure (see our practical tips below).

Media coverage

Coverage of discrimination issues has been endemic since the #MeToo and #TimesUp movements arose in the entertainment industry.

Last year commenced in the USA with celebrity and model Chrissy Teigen’s infamous Tweet in which she offered to pay gymnast McKayla Maroney’s $100,000 fine in connection with a non-disclosure agreement seeking to silence allegations of harassment and abuse. Ms Maroney was due to give evidence in a court case against the former USA Gymnastics team doctor, Larry Nassar, who pleaded guilty to charges of sexual assault. However, Ms Maroney had signed a non-disclosure agreement as part of her settlement. Testifying in court would have amounted to a breach of the agreement and triggered an obligation on her to pay the $100,000 fine. Ms Maroney went on to bring legal actions against USA Gymnastics, the U.S. Olympic Committee and Michigan State University on the basis that the non-disclosure agreement she signed was illegal.2 Ms Maroney accused the organisations of using the non-disclosure agreement to conceal acts of sexual abuse from the public. USA Gymnastics denied that allegations were silenced to preserve its own reputation.3 Ultimately, however, USA Gymnastics supported Ms Maroney in giving her evidence.

Carlos Ramos, the umpire involved in the 2018 US Open Final incident with Serena Williams, faced backlash from the media regarding his alleged sexist comments in relation to code violations at the 2018 US Open final. As a direct consequence of the reaction and negative commentary, he did not return to the Arthur Ashe court to pick up the usual memento for chairing a US Open final.4 The nature of Ms Williams’ allegations is indicative of the current environment in which discriminatory behaviour is heavily scrutinised by the media and the public at large. The Guardian newspaper later commented that Ms Williams and Mr Ramos were likely to be kept apart at the Australian Open.5 Ms Williams noted that Mr Ramos would never do another one of [her] matches.6

A further example of the intensity of the media and public scrutiny of these issues appeared last summer, when US race car driver Conor Daly encountered what some commentators have determined as an over-cautious approach to allegations of discrimination. Lilly Diabetes pulled sponsorship for a Nascar Xfinity race due to an alleged racial slur made by Daly’s father in the 1980s during a radio interview.7 Lilly Diabetes said it did not want their association with this act to distract from their cause.8 This demonstrates the importance organisations place on reputation and brand alignment and the growing recognition that any association with discrimination (alleged or otherwise) may cause damage to their standing and business goals. In Mr Daly’s case, the remark was historic and made by his relative (not him directly), yet his sponsors were still concerned about brand damage. Organisations recognise that reputational damage could affect funding and ultimately, the delivery of their services. For sports organisations, they are also keenly aware that this kind of publicity can have severely detrimental effects on supporters of the game as well as the wider concern for breach of relevant regulatory rules which can further penalise through fines, player bans and more adverse publicity. The FIFA World Cup fine against Russia for racist chants in a warm up match against France as a case in point.9

It is clear that sponsors are alive to these issues and the sports organisations themselves are more and more concerned by the risks these incidents can pose.

Increasing diversity and recruiting the best talent

Aside from the direct consequences of legal liabilities and reputational damage, discriminatory actions may decrease the talent pool available to sports organisations. The impact of discrimination is twofold: (i) sports organisations may not attract a diverse enough range of players; and (ii) current players who encounter discriminatory treatment may leave the organisation and move to another that provides equal opportunities or leave sport altogether. This, in turn, will affect the supporters’ enjoyment of the game if the organisation cannot recruit and maintain the best talent and will ultimately impact on revenue if support for a particular team or sport diminishes due to these highly publicised cases.

In order to promote diversity in sports, Sport England announced in October 2018 that it is investing up to £400,000 to increase the diversity of board members in sporting organisations. It has reported that black, Asian and minority ethnic (BAME) individuals and those with disabilities are underrepresented and recognises that greater diversity means leadership is better equipped10 to promote the organisation and meet customer demands.

The Government is seeking support from sports organisations such as the Rugby Football Union and England Hockey to advise it on how to engage more children in sports through its School Sport Action Plan, which will be implemented this year. The Government has recognised that there are disparities in activity levels between boys and girls, as well as children of different socio-economic backgrounds and some BAME groups.11 The plan aims to engage the least active groups and ensure equality of opportunities.

Charity projects such as Show Racism the Red Card (set up in 1996 to maximise the high-profile status of football professionals to tackle racism at grass-roots level) and Kick It Out (set up to promote diversity and inclusion in sports) have received significant support across all of the sports sector. On 11 September 2018, England’s friendly match against Switzerland was partially televised in black and white to mark Kick It Out’s 25th anniversary.12 This again illustrates the interest in tackling potential discrimination issues in the sports sector.

WORKERS’ RIGHTS UNDER THE EQUALITY ACT 2010 AND IMPLICATIONS FOR SPORTING BODIES

Sports organisations will have varied workforces which may comprise of employees, workers, self-employed individuals and volunteers, and this includes their professional athletes. This article focuses on the sports people themselves and their legal rights in respect of discrimination albeit these issues are of course directly relevant across the workforce. The question as to whether sports persons have the right to protection from discrimination in an employment law context is currently under the spotlight following the recent Jess Varnish decision in cycling. However, it is important to flag that legal decisions in respect of employment status are very fact specific (see below for more detail) and so this will not be the end of the story in terms of athletes and others in elite sport seeking employment related protections.

Protection for workers (the Jess Varnish decision)

The EqA makes it unlawful to discriminate against individuals because they have a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) or for reasons related to such characteristics. The EqA protects individuals in employment from discrimination.

The meaning of “employmentin the EqA13 has been widely interpreted to include not only employees, but also workers and some individuals who are self-employed (i.e. those under a contract personally to do work). Whilst the traditional employer/employee relationship may not be relevant for all athletes, sporting organisations will want to consider whether their athletes have rights as workers and therefore have protection from discrimination under the EqA. Professional sports people are invariably contracted to perform work personally (e.g. compete in matches or races) and in reality they would not be permitted to send a substitute in their place. Therefore, albeit this is very fact specific and the degree of control over the sports person will vary a good deal from sport to sport, a number of athletes are likely to have grounds to claim they have worker status. This will mean they could still benefit from the rights and protections of the EqA.

Former sprint cyclist, Jess Varnish, attempted to pursue what would have been a landmark case against UK Sport and British Cycling for unfair dismissal, discrimination and victimisation related to sex and whistleblowing.14 Ms Varnish lost her funding when she was dropped from the national squad in 2016. The defence allege that this was due to her not reaching the required performance standard. Ms Varnish stated that she was told to move on and get on with having a baby”.15

However, the first legal hurdle Ms Varnish had to overcome in order to pursue these claims was a legal determination as to whether UK Sport-funded athletes have employee, or at least worker, status. The recent judgment in that case determined that Ms Varnish was unsuccessful in her claims. Ms Varnish, therefore, does not have standing to present her claims as she does not have the requisite legal status.

In determining her status the Employment Tribunal considered not only the contractual relationship between the parties but also how it operated in practice. The Tribunal deliberated on a number of factors, including control elements, personal service and mutuality of obligations. Ms Varnish’s case was that British Cycling had a high degree of control over her, such as: (i) a rigorous training schedule with minimal flexibility to take time out for personal reasons; (ii) sanctions being applied by coaches for minor transgressions; and (iii) being told what to wear, eat and say in public.16 Recent case law concerning the "gig-economy" and employment status (for example, Pimlico Plumbers17 and Uber18) had indicated that a high degree of control would point to employee/worker status rather than self-employment. Ms Varnish’s case did not follow this trend and was distinguished on the facts.

British Cycling and UK Sport have been successful in resisting Ms Varnish’s claims and UK Sport confirmed that the judgment is key to the industry safeguarding funding for athletes in the future.19 However, irrespective of this decision and any appeal which may transpire, all those who engage, regulate or fund athletes need to reflect on the reality of their relationship with professional sports people to ensure that it is consistent with the intended employment status, whether employed, self-employed or worker. By tackling these issues head on and by implementing clear guidelines which address the key issues such as the degree of day to day control over the athlete, it is possible to avoid the unintended legal consequences of employee or worker status and the associated costs and liabilities which could have such an adverse effect on the availability of funding for athletes. Sports bodies should appreciate that this case is very fact specific and should seek legal advice on employment status as this area of law is complex and fast moving.

Liability for discrimination

Generally, there are four main types of prohibited conduct under the EqA: (i) direct discrimination; (ii) indirect discrimination; (iii) harassment; and (iv) victimisation. Discrimination can occur at any point from the start of the recruitment to termination and beyond. Below is a high-level overview of the types of claims athletes who are found to be employees or workers could pursue against a sports organisation.

  1. Direct discrimination: occurs where an individual is treated less favourably than someone in the same circumstances and the reason for the less favourable treatment is because of a protected characteristic. This might occur where a male cyclist is given a different coaching arrangement before a race and a female cyclist in the same team is given what she sees as inferior coaching arrangements. In order to successfully claim direct sex discrimination, the individual must establish that her circumstances are not materially different to her male colleague’s and that the reason for the difference in coaching is her sex and not another factor (e.g. she is provided with the most appropriate coaching for her abilities, irrespective of gender).

  2. Indirect discrimination: occurs where an organisation has a seemingly neutral provision, criterion or practice in place which is applied to everyone but has the effect of disadvantaging people with a particular protected characteristic. For example, a sports club may have a historical practice of only recruiting mixed players who are over 5 foot 8 inches (in circumstances where height is not a significant requirement for the sport). This practice would be applied to all but may disadvantage women who are less likely to meet this requirement. A finding of indirect discrimination can be avoided where it can be shown that the organisation’s actions are a proportionate means of achieving a legitimate aim (known as “objective justification”) – see below for further details.

  3. Harassment: general harassment (not that of a sexual nature for which there are two further offences under the EqA which are not covered in this article) occurs where an individual is subjected to unwanted conduct related to a protected characteristic which has the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. An example of this would be a player making racist comments about a team member of African origin in the locker room which has the effect of a white team member feeling intimidated and offended by the environment. Note it does not matter that the white player does not share the protected characteristic; it is enough that the conduct is unwanted and in relation to a protected characteristic for this individual to pursue a claim.

  4. Victimisation: occurs where an individual is subjected to detriment because they have, or the other party believes they have, done or may do, a "protected act". "Protected acts" include bringing Employment Tribunal proceedings, giving evidence in connection with proceedings, doing any other act in connection with, or alleging that the other person has contravened, the EqA. Where a sports person brings a grievance alleging that the sports body has discriminated against them this amounts to a ‘protected act’. If the sports organisation fails to deal with the complaint properly, the individual may have a claim for victimisation on the basis that they have suffered a detriment through the grievance process which may not have been carried out fairly due to their allegations.

For completeness, in addition to the above, there are also specific types of discrimination in connection with the protected characteristic of disability: (i) discrimination arising from disability; and (ii) failure to make reasonable adjustments, which this article does not cover.

Possible exemptions and defences to discrimination

Sporting bodies may, in certain circumstances, be able to rely on exemptions or defences to allegations of discrimination. The most relevant in the sports world are likely to be where there is an occupational requirement, positive action, objective justification (the latter in relation to indirect discrimination claims) and having taken reasonable steps to prevent discrimination.

  1. Occupational requirement: is where a certain category of individual is, or is not, genuinely required to perform a role (e.g. single sex teams).

  1. Positive action: occurs when organisations take lawful action to tackle discrimination problems in circumstances where individuals with a particular protected characteristic suffer a disadvantage, have particular needs or are disproportionally under-represented. Lawful positive action prevents an organisation opening itself up to discrimination claims brought by people without the relevant protected characteristic in question. However, such action must be able to be justified by the organisation as a proportionate means of achieving a legitimate aim (this is discussed in more detail below).

  2. Objective justification: organisations can avoid liability for indirect discrimination where their actions, whilst placing certain individuals with a protected characteristic at a disadvantage, are justifiable as a proportionate means of achieving a legitimate aim. For example, a sports club may require that matches are played on Sundays due to tournament fixtures and to facilitate fan attendance. This practice may place those of a particular faith whose religious observations require them not to carry out work on a Sunday at a disadvantage. The sports club’s practice may be able to objectively justify this as a proportionate means of achieving a legitimate aim because the disadvantage suffered by the individual is balanced against the club’s need to deliver its sports services. However, a sports club would find it hard to succeed in this defence if there are other less impactful ways to achieve their aim.

  3. Reasonable steps: where an organisation can demonstrate that it took all reasonable steps to prevent an unlawful act occurring it will be able to avoid vicarious liability for discriminatory acts carried out by its staff (see below for more detail about vicarious liability). Reasonable steps are likely to include a sporting organisation implementing an equal opportunities policy and proactively training managers appropriately.

Who is liable?

Workers have the right to bring claims directly against sports organisations who engage them. They also have the right to bring claims against individual perpetrators.

Sporting organisations may be vicariously liable for acts of discrimination carried out by staff during the course of their employment or engagement. If this applies, the discriminatory act will be treated as having been done by the organisation itself. (In limited circumstances organisations may also be liable for harassment carried out by third parties or agency workers). The EqA seeks to ensure that both the person carrying out the act and any person on whose behalf the act was carried out (i.e. the sports club) can be held accountable.

A defence to a claim for vicarious liability may be available where an organisation can show it took all reasonable steps to prevent the act occurring (see above).

Workers will have to consider whom they wish to pursue a claim against in respect of any allegations of discrimination. In most instances, athletes will focus on the organisation itself as it is more likely to have the means to pay any compensation award. However, individuals should note that claimants will often pursue both the organisation and the individual perpetrator. Pursuing an individual can cause significant reputational damage to their career due to the public nature of Employment Tribunal proceedings. Needless to say, the sporting organisation will also suffer reputational damage due to association with this adverse publicity. Others engaged by the organisation and fans may take the view that there is "no smoke without fire" and withdraw their support.

Remedies available

Workers who believe they have been discriminated against are entitled to bring claims in the Employment Tribunal to recover compensation, seek a declaration of their rights, and/or seek a recommendation as to what steps an organisation should take to combat any disadvantage suffered. Sporting organisations should bear in mind that compensatory awards for discrimination claims in the Employment Tribunal are uncapped (unlike those for unfair dismissal).

The remedies available to sports persons whose discrimination claims succeed in the Employment Tribunal are summarised below:

  1. Compensation: there is no cap on compensation awarded to successful claimants in respect of losses suffered. Compensation for discrimination is, broadly, calculated in reference to financial losses (i.e. loss of earnings) and non-financial losses (i.e. injury to feelings and aggravated damages).

  2. Recommendation: a Tribunal can order an organisation to take specified steps to obviate or reduce any adverse effects on the individual relating to the acts complained of in their proceedings. However, the Tribunal does not have a specific power to enforce a recommendation once it has been made. The concern for any sports organisation that does not comply with a recommendation would therefore be focussed on reputational damage rather than financial or other penalties.

  3. Declaration: a Tribunal can make a declaration as to the rights of the parties to the claim. This will be a statement setting out how the organisation violated the individual’s rights. It does not, however, require the organisation to take any particular action. This remedy may be appropriate where the individual has suffered no, or minimal, loss.

BEST PRACTICE FOR SPORTING BODIES IN RELATION TO DISCRIMINATION ISSUES

Proactive approach: recruitment and access

Sports bodies may wish to take a proactive approach to educating their staff in order to increase diversity and inclusion. This could include: (i) unbiased recruitment; and (ii) targeted access opportunities.

The EqA provides that employers must not discriminate against a person in making arrangements […] for deciding whom to offer employment.20Arrangements” has been interpreted widely and therefore sporting bodies should ensure that the advertisement of trials, opportunities, interviews, and selection processes are fair and do not disadvantage individuals with a protected characteristic.

For example, discrimination in recruitment may occur if a role is only targeted to a specific group of people (e.g. where the role unlawfully requires a player younger than 25). This is likely to amount to age discrimination as older people would be deterred from applying and therefore face a disadvantage in access to opportunities.

Sections 158 and 159 of the EqA21 allow for positive action. Where sporting bodies reasonably believe that those with a particular protected characteristic are disadvantaged, have different needs to those without the protected characteristic, or their participation in the sport is particularly low, they may have a basis for taking action to balance these inequalities. For an organisation to lawfully take positive action the steps must be proportionate to achieving the aim of overcoming the specific disadvantage, meeting the needs of the individual, or enabling participation in the activity. As with objective justification (see above) a sports organisation must consider whether the steps taken in respect of positive action are appropriate to achieve its aim. This will involve assessing options to ensure there are no alternative means which could result in reducing the less favourable treatment impact of others who do not share the protected characteristic.

Whilst there is no duty on employers to take positive action, the ECHR Code22 notes that it is a matter of good business practice to take positive action measures to help alleviate disadvantage.23 Examples of positive action may include: (i) advertising in specific media outlets to engage BAME individuals; and (ii) setting targets to increase the participation of young women in sports where they are underrepresented. Schemes that promote access and encourage participation in sports for those from disadvantaged backgrounds are a way to attract diverse talent which may otherwise have been precluded from contributing.

Positive action can also apply to recruitment and promotion, as long as the candidate with the protected characteristic is as qualified as the candidate without the protected characteristic in a tie break decision when choosing who to recruit or promote.

Positive action is not to be confused with positive discrimination which is unlawful (see this LawInSports article for more information24). Positive discrimination is regarded as the preferential treatment of a group to correct a disadvantage. An example would be an organisation having a blanket policy of using quotas so that BAME candidates take precedence to be selected for teams even where they are not as qualified as the other candidate. Schemes of this nature, including the Rooney Rule,25 have been used in the USA to increase diversity amongst the talent pool. This would not be lawful in the UK as it would be amount to positive discrimination rather than the positive action.

Proactive approach: policies and procedures

Steps to counter discrimination in an organisation include putting appropriate policies and procedures in place (e.g. equal opportunities, anti-bullying and harassment, whistleblowing and grievance policies) and making sure they are actively implemented. Sports organisations are likely to directly employ or engage managers and coaches to run teams. Managers and coaches will want to ensure their teams are as successful as possible in their chosen sport and this would include ensuring athletes train and perform in equal opportunities environments. Staff should be familiar with the organisation’s policies and receive specified training on how to proactively spot and manage discrimination, harassment and victimisation so the organisation can minimise legal and reputational exposure.

In the wider socio-political context, the recommendations of the Women and Equalities Committee26 and the EHRC’s "Turning the table: ending sexual harassment at work"27 have made it clear that employers need to train their workforce to prevent, identify and resolve instances of harassment in the workplace. (The same applies to other forms of discrimination.) Such action would include applying disciplinary sanctions where a grievance concerning harassment (or other forms of discrimination) is upheld.

Proactive approach: tackle issues and complaints early

Sporting organisations can seek early resolution of allegations of discrimination through properly conducted grievance procedures in respect of its employees. The ACAS Code of Practice28 sets out best practice for carrying out grievance procedures in respect of employees. (It does not cover workers). Whilst not mandatory for employers to follow the ACAS Code, an Employment Tribunal can take into account a failure to comply with the Code by either party, and adjust any compensatory award by up to 25%.

Complaints should be dealt with in a fair, timely and confidential (to the extent possible) manner. Processes should be transparent and similar complaints about inappropriate or unlawful behaviour should be dealt with in a consistent manner. Having robust procedures in place provides managers (and coaches) with guidance to follow and ensures consistent and fair procedures are adopted. If complaints are managed internally, this reduces the risk of litigation and negative publicity.

Due to the public nature of Employment Tribunal proceedings a sporting organisation’s policies, procedures and communications relating to any grievances are likely to be key evidence in the proceedings and therefore available to the public (including press) to scrutinise and comment on. Jess Varnish publically voiced her concerns about lack of policies and procedures in place at British Cycling which she alleges led to a culture of covering up unlawful behaviour29. A sports organisation will therefore want to ensure its policies are effectively applied to demonstrate its commitment to an equal opportunities environment and compliance with its obligations under the EqA.

CONCLUSION

There are clear benefits to sporting organisations creating and maintaining an equal opportunities environment:

  1. ability to recruit talent from a diverse range of people;

  2. increasing loyalty and commitment from athletes and fans;

  3. protecting and enhancing reputation in a world increasingly focussed on equal opportunities; and

  4. minimising the risk of exposure to litigation.

In the current environment, sports organisations should take the opportunity to pro-actively manage issues of discrimination internally and lead change in the wider industry. Sports organisations have access to a pool of high profiles role models whose passion for sport they should harness to shape a new sports landscape in which diversity is at the forefront. Such actions should assist the success of sporting bodies, individual athletes and the sports sector as a whole. Sports bodies should continue to work towards levelling and diversifying the playing field.

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About the Author

Zoe Dudgeon

Zoe Dudgeon

Associate, Charles Russell Speechlys

Zoe advises on all aspects of employment law, acting for both employers and employees on contentious and non-contentious matters. She has contentious experience in the Employment Tribunal, County Court and High Court. Cases include unfair dismissal, unlawful deduction of wages, harassment, disability discrimination and breach of contract. She has also advised in cases involving the non-payment of bonuses and commission.

Zoe’s non-contentious experience involves advising on a wide range of employment law issues including contracts of employment and company handbooks, corporate due diligence and TUPE protection.

Elinor Boote

Elinor Boote

Trainee, Charles Russell Speechlys

Elinor is a trainee at Charles Russell Speechlys and is currently in working in the Employment, Pensions and Immigration team.

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