Unfortunately, acts of discrimination and issues involving discrimination still arise in the world of sport, and when they do the consequences can be far reaching in terms of the damage at the time of the act and after the event.
Under the Equality Act 2010, it is unlawful to discriminate based on any of the nine “protected characteristics” – being age, disability, gender reassignment, marriage, pregnancy/maternity, race, religion, sex and sexual orientation.
An employer must not discriminate against applicants or employees. There have been severalhigh profile discrimination claims made by employees of football clubs including – (1) the case of former Newcastle United Football Club player Jonas Gutierrez, who in 2016 successfully argued before an employment tribunal that the club had discriminated against him due to his cancer diagnosis at the time and (2) the case involving the former doctor of Chelsea Football Club, Eva Carneiro, in 2016 against the club and the former manager Jose Mourinho and
There are typically four types of prohibited conduct under the Equality act – being:
- Direct discrimination – when one person treats another less favourably on the grounds of a protected characteristic;
- Indirect discrimination – where there is a measure, requirement or treatment applied to everyone, however its impact is felt by way of disadvantage to a group with a specific protected characteristic;
- Harassment – occurs when a person engages in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating another person’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment; and
- Victimisation – where a person responds to another and subjects them to a detriment because the other person did a protected act, or the other person believes they have done such an act, for example raising a complaint concerning some form of discrimination.
Sporting governing bodies consider discriminatory acts taken by one participant against another or others to constitute “misconduct”. Most sporting governing bodies provide for powers to deal with such misconduct and often in the form of the commencement of a disciplinary investigation, proceedings and ultimately by way of sanction, as set out within the set of rules and regulations applicable to the sport.
Depending on the sport and the rules in force, some sports associations and governing bodies require disclosure and reporting of suspected acts of misconduct. For example, under the FA’s Rule E14, participants must report suspected acts of misconduct to the FA or affiliated bodies. However, pursuant to Rule E15 this requirement is qualified by the condition that reports must not be made if they are of a frivolous or vexatious nature.
The FA has the power to act against any “Participant” defined in its rules to be inclusive of clubs, players, agents, managers amongst other examples and the wider category of “all persons who are from time to time participant in any activity sanctioned either direction or indirectly” by the FA.
Some recent examples of alleged misconduct include the cases involving athletes and content (historic and present) appearing in the form of social media posts and references/comments held to be of a discriminatory nature, through to acts of dishonesty, doping and betting offences. For example, in respect of the latter and the subject of betting, “Participants” in football are not allowed to bet directly or indirectly on the result or conduct of a football match or competition under FA Rule E8.
The decisions of sporting governing bodies are open to challenge and this can be for various reasons including following a detailed review of evidence, and in circumstances if / where they have not been made within a procedurally fair process, if irrelevant considerations have been taken into account, or where the sanction is disproportionate and unreasonable.
How can Moore Barlow help
The Moore Barlow Sports Group has extensive experience acting for clients involved in disciplinary processes and proceedings brought by sports associations and governing bodiesinvolving allegations of discrimination and misconduct. We have acted for clients across multiple different sports in this regard including football, gymnastics and polo. We have a strong understanding of various governing body rules, powers and processes relating to action which might be taken in respect of such matters such that we are able to add considerable value and reassurance in guiding clients through such processes.
