Welcome to the second article in our new series of articles: “Sports in the news – what do the employment lawyers think?” Many of us here at GQ|Littler are big sport fans. We thought we might share our collective thoughts from time to time on recent sporting news stories and give you our perspective, through an employment law lens. We appreciate it’s a little niche – and no, nobody asked us to do this – but we hope you find it interesting nonetheless.
This month, we’re looking at recent sporting issues concerning black sports men and women, as part of GQ|Littler’s Black History Month newsletter. We look at two issues disproportionately affecting black employees in football and in other workplace environments – online harassment and representation in management.
There is, of course, a long and documented history of sportsmen and women being at the vanguard of social and political changes in society. The cultural importance of sport can provide its stars with a platform to leverage change, perhaps more effectively and quickly than in other industries. But that power also means that the challenges and struggles faced by black sportspeople can be even more acute.
Most sports fans will sadly be aware of the social media abuse that is routinely sent to black players on Twitter and elsewhere online. The problem has become pervasive, with technology companies seemingly unable or (worse) unwilling to adequately address the situation. The issue reached its nadir this summer, when three of England’s youngest black players were hideously abused on social media following England’s loss in the final of the Euros.
Football clubs seem keen to protect their players to the extent that they can, and regularly denounce racist abuse when given the opportunity to do so, but to what extent do their duties require them to protect their employees?
In 2013, the UK repealed the provisions of the Equality Act that imposed an obligation on employers to prevent some forms of third party harassment, and the Employment Appeal Tribunal confirmed in 2019 that no such duty exists under UK law. Now, an employer would only be liable for third party harassment if their own action or inaction were related to the employee’s protected characteristic. Even before 2013, employers were only under a positive duty to their employees under the Act in circumstances where they knew that an employee had been harassed by a third party on at least two previous occasions, and still did not take "reasonably practicable steps" to prevent the harassment. The old legislation would not impose liability on the employer following a one-off Twitter message, no matter how vile.
Employers are of course obliged to ensure the health and safety of their employees, whilst at work, to the extent reasonably practicable. This is relevant to employees who are abused whilst on the field of play, particularly if their safety is threatened, but would likely not extend to a player using social media in their own time after a game.
All of which leaves players exposed to the goodwill and engagement of their clubs. Thankfully, there are of course commercial and moral imperatives which drive clubs to speak out on behalf of their players to some extent, but a question remains as to whether they (and other employers) would be forced into doing more to protect their black employees if third party harassment obligations were updated for the social media age, and reintroduced into the statutory framework.
Since 2003, clubs in the NFL (American Football’s premier competition) have been required to interview at least one or more diverse candidates for any head coaching role. In 2009, the rule was expanded to include general manager jobs and equivalent front office positions. The initiative is named the Rooney Rule, after the late former Pittsburgh Steelers owner and Chairman of the league's diversity committee, Dan Rooney.
For years, there were calls for a similar scheme to be implemented for football clubs in the UK, where the proportion of BAME players in the game is completely at odds with the proportion of BAME senior coaches and managers. Sol Campbell has spoken of the challenges facing BAME candidates for management positions across football. Still (as of June this year) only 6 of the 92 clubs in the top four tiers of English football employed BAME managers.
The English Football Leage (EFL), responsible for the second, third and fourth tiers of English football, introduced a version of the Rooney Rule in 2019 under its Recruitment Code. However, it soon became clear that the Code was ineffective, only requiring clubs to interview a BAME candidate when engaged in a formal shortlisting process. If the club in question wanted to go direct to a single preferred candidate and make an offer (a common approach in the UK) then the rule did not bite. There have been calls for the Code to be expanded to apply to all management hires, whether or not a shortlist is used, but as yet nothing concrete has been forthcoming.
Former players seeking to get into management are understandably frustrated, but part of the problem for UK sport is that the Rooney Rule is a challenging fit for the UK’s Equality legislation. For positive action to be lawful, an employer must reasonably think that persons sharing a protected characteristic either (i) suffer a disadvantage, (ii) have different needs, or (iii) have low levels of participation in an activity, in each case as compared to a person without that protected characteristic. The employer can then take proportionate steps to address the disadvantage, needs or participation. ‘Proportionality’ in this area is generally interpreted conservatively, and the examples provided in the Equality and Human Rights Commission’s Code of Practice reinforce this view. In fact, some of the examples provided in the document come close to implying that the Rooney Rule is unlawful in the UK. That seems an unfortunate conclusion, given the scale of the apparent problem facing BAME managers in UK football, and clubs might do well to consider whether the legislation itself permits more action than the EHRC’s code implies.
In any event, a study from Taylor and Francis Online offers a sobering assessment of the effectiveness of the EFL’s Recruitment Code, concluding that its failings were in part due to an “absence of organizational and ideological buy-in…. a key underpinning factor here was the belief of some senior decision makers that pre-existing recruitment practices were meritocratic, objective and ‘race’-neutral.” In other words, the Code was ineffective because some clubs did not agree that there was a significant problem to be fixed. Positive action is only helpful where those who are making key decisions understand the extent of the challenges faced by BAME candidates, and are motivated to do something about those challenges. The take-away for employers might be that effective management training on issues of discrimination, recruitment and unconscious bias remain just as important to an organisation as positive action itself…