Newsletters Sports Law 22nd Jan 2020

Football and Racism

It is only relatively recently that the psychological effects of racism and homophobia, such as anger, humiliation, loss of self-confidence and depression, have become the subject of focused research and inquiry. This issue is as relevant in the sporting context as it is in any other. Certainly, in the past BAME football players were expected to put up with racism as part of the game or as harmless banter. Homophobia was not even recognised as a concept.

There was perhaps a complacent view that, with the advent of the Premier League, all-seater stadia and the perceived gentrification of football, racism in football had been, if not eradicated, then massively diminished since the days of racist songs, monkey chants and banana throwing. Even so certain clubs, supporters and players were still targeted for invective, for example, because of links to the Jewish community. Individuals who did not fit stereotypical ideas of what a footballer should look like or what newspapers a footballer should read experienced homophobic abuse. If you’re in any doubt about this, you might recall the appalling treatment dished out to Graeme Le Saux after he admitted visiting art galleries in his spare time.

Over the last decade the idea that racism in particular is a problem confined to the less-enlightened parts of Continental Europe has become impossible to sustain. There have been high profile criminal and disciplinary cases in this country, which have investigated allegations of racism.

The issue arises as to the extent to which a  failure to deal with racism, whether on the training field, the pitch or in the stands, might undermine the psychological health of BAME participants.

Football clubs are employers subject to the Equality Act 2010. The law theoretically provides protection for players against discrimination on the grounds of race and sexual orientation by their employers. However, in the closed world of football how many players would be prepared to risk being branded a troublemaker by seeking to assert their employment rights?

Individual players can be and have been prosecuted and/or subjected to disciplinary proceedings and the answer may lie in simply increasing the available penalties for such offences (FIFA’s Disciplinary Code, for example,  provides for a minimum ban of ten matches).

Currently the FA has the power to proceed against clubs for breaching FIFA’s Disciplinary Code, which makes clubs liable for the behaviour of fans even absent any fault on the part of the club. FIFA’s powers include fines, stadium closures, match forfeits and points deductions. The FA’s powers are broadly defined as the power to impose a penalty or other order to be exercised on behalf of the Council as it sees fit.

As part of a wider response to the problems of racism and homophobia, clubs should look to act proactively to minimise the chances of a racist or homophobic incident occurring as well as reacting after an incident has taken place. Football clubs now sign young players of varying standards of education and different cultural beliefs from all parts of the world. Many clubs invest something in the education of their players, including in relation to issues of diversity; however, many do not.

Clauses in contracts may already allow for immediate dismissal if racist or discriminatory behaviour is established. If not, such clauses should become standard. Another potential remedy would be for the FA to take regulatory action against clubs that do not punish players.

A far more complicated issue involves the protection players have against racist abuse from fans. It may be argued that the time has come to impose a far more stringent regime on the clubs so that it becomes very much in their own financial interest to eradicate discriminatory behaviour.

Of course the police have powers to prosecute for public order and other offences. The courts can impose banning orders against individual fans. However, whilst measures such as these work as against the individual, there is considerable doubt, as there is the field of criminal law generally, whether the punishment of one person who has been caught in reality acts as a deterrent to others. Further, as recent events have shown these offences are often difficult to prove.

Therefore, one potential solution may be to impose a specific regulatory burden on clubs to take all reasonable steps to eliminate discriminatory behaviour in their stadia subject to a qualification of reasonable practicability, which could take into account the differing resources of those at various stages of the football pyramid.

It is often said that discrimination is not just football’s problem but a wider societal problem. With that in mind might there be a role for the Health and Safety Executive? The Health and Safety at Work Act 1974 section 2 imposes a burden on all employers to ensure so far as is reasonably practicable the health, safety and welfare of their employees; section 3 imposes a similar burden in relation to non-employees.

Psychological wellbeing is just as much a part of a person’s health and welfare as their physical wellbeing. In health and safety cases there is no need to prove actual harm, it is sufficient to prove that there was at the material time a risk of harm.

This is a wider topic that will form the subject of a more detailed article in the next 2 Hare Court Health and Safety Newsletter.

It is not suggested that the above provides a template to solve the problem of discrimination. It is hoped however it might form the basis for discussion.

Christopher Gillespie and Helen Lavery

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