Racism in sport, in particular football, has been a high profile concern for many years leading to campaigns such as ‘Kick It Out’ being set up to try to combat the issue.
Footballers, like all employees, have a right not be discriminated against or harassed under the Equality Act 2010 and the Protection from Harassment Act 1997. Employers, i.e. football clubs, are under a duty of care to protect their employees (the players) by putting in policies and training to encourage equal opportunities and take appropriate action where necessary.
Thomas Eggar discusses the legal responsibilities of football clubs to protect their players from discrimination and harassment, the situation as it currently stands in the UK, what more could be done to protect players and who is liable.
A number of high profile racist incidents in the past few years have forced clubs, as well as national and international associations to address the issue of racism and to make sure they protect players and act in accordance with the law.
The Equality Act 2010 was drafted to afford individuals the protection they require against discriminatory behaviour. This applies in relation to the provision of services as well as in the workplace. Football players are employees of their football club. As well as ensuring that employees are not discriminated against or harassed by other employees of the club, the club also has a responsibility to protect employees against discrimination in the workplace. A footballer’s workplace includes a football stadium, so how far does the employer’s duty extend.
Third party harassment has been repealed, however clubs still need to take active steps to prevent behaviour that violates the player’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. General match day chanting is unlikely to be enough to fall foul of this definition, unless it refers to a players protected characteristic (i.e. race or religion.)
If match day chanting does take on a discriminatory tone, then clubs will need to demonstrate that they have taken all reasonable steps to prevent such behaviour occurring. Such steps include issuing codes of conduct to fans, ejecting any fan found to be taking part in such behaviour and having a police presence in the stadium. Failure to do anything could result in the club being liable for failure to protect the player in the workplace. Liability from an employment perspective would only apply to the home club who have a degree of control over the fans, however the Premier League, FA and Uefa has the ability to punish clubs for failing to control its fans in relation to behaviour towards opposition players.
"Tougher measures still need to be taken against clubs who allow fans to abuse players. A continued failure to prevent abuse of a player could constitute harassment."
As well as protection available under the Equality Act, players, managers and even referees could potentially rely on a breach of the Protection from Harassment Act 1997. Liability for breach of this act could lie with the individual committing the act (perhaps a player, or supporter) and potentially the club hosting the event. The Act is designed to stop bullying and unwanted conduct. It needs to be more than just merely unpleasant, but does not necessarily need to involve a discriminatory element.
Racism and other forms of discrimination are still unfortunately a problem in football. Progress has certainly been made, however high profile incidents in Europe and the issues involving Luis Suarez and John Terry in 2011 and 2012 highlighted that more needs to be done to protect players from racist abuse. Clubs as employers have an obligation to protect their own employee. They also have duty to protect fans and other participants from suffering abuse on match days. The authorities have responded in part by agreeing to implement longer bans for players found guilty of racist behaviour. Tougher measures still need to be taken against clubs who allow fans to abuse players. A continued failure to prevent abuse of a player could constitute harassment and the club could therefore be liable for compensation.
Ashley Wootton, Sports Specialist Solicitor, Thomas Eggar LLP