Written by Martin Pratt
It is hard to ignore the issue of racism in football. The issue has, over the last two years, rarely been off the back pages of our newspapers. The now infamous game between QPR and Chelsea in October 2011 led to the prosecution of the national team captain on charges of racial abuse, which were dismissed in a magistrates’ court but indirectly caused the resignation of the England national coach.
Since then, we have had managers, referees and players publically accused of racial abuse. The sad litany of accusation and incident continued into the recent Champions League game between CSKA Moscow and Chelsea where alleged racial abuse led Chelsea midfielder Yaya Toure to suggest black players boycott the 2018 World Cup in Russia.
The Professional Footballers’ Association (“PFA”) campaign ‘Kick it Out’ works within the game and seeks to “encourage inclusive practices and work for positive change.” However, some have suggested that this “let’s be nice to each other” approach favoured by the FA and ‘Kick it Out’ isn’t working and stronger measures are needed to give black and ethnic minority players and coaches the respect they deserve in the game.
Across the Atlantic in American Football’s NFL, there is a ruling known as ‘the Rooney Rule’. Named after Dan Rooney, the owner of the Pittsburgh Steelers, this was passed to make sure that African-American coaches (and, since 2009, those of other ethnic minority backgrounds) are interviewed and considered for NFL head coaching positions.
In 2002, 70 per cent of the NFL’s players were black but only 28 per cent of the assistant coaches, and a dismal 6 per cent of the head coaches, were African- Americans. To combat this, the rule requires all NFL teams to interview at least one African-American or ethnic minority coach for every vacant head coach position, and it has widely been regarded as a success. Since 2002, the number of African-American coaches in the NFL has risen from 6 to 22 per cent.
Last year, the PFA issued a six-point action plan to tackle racism in English football, part of which was to implement a version of the Rooney Rule. But would it work?
There are a number of problems. The Rooney Rule was aimed at dealing with the specific problem of the under-representation of African-American coaches at American Football’s highest level. While the number of black coaches in English football is equally dismal, it doesn’t tackle the specific problem of racial abuse that is hitting the headlines at the moment. Furthermore, who at Chelsea would interview candidates for the Stamford Bridge revolving door? Was the Chelsea job advertised before José Mourinho returned?
The Rooney Rule is a type of affirmative action (known as positive discrimination in the UK) which means “positive steps taken to increase the representation of women and minorities in areas of employment, education and business from which they have been historically excluded” and is (with some limitations) lawful in the US. However, positive discrimination is not lawful in the UK. We have the much weaker concept of positive action which provides that if two equally qualified individuals are applying for a single job, recruiting employers can treat a person with a protected characteristic more favourably, but only if the candidates are equally qualified. ‘Protected characteristics’ are defined in the Equality Act 2010 and include characteristics such as race or ethnicity. It is the interpretation of ‘equally qualified’ that can be a practical problem in this situation.
The problem is this – what constitutes ‘equally qualified’? How many FA Cups equal one Premier League title? Under the law as it stands, a risk exists (one that doesn’t exist in the NFL) that a candidate who is overlooked for a post where an ethnic minority candidate was interviewed could bring a claim in race discrimination.
In the US, the Rooney Rule seems to have worked, at least in the coaching context. However, to implement it in this country, a change in the law would be needed to broaden the scope for positive discrimination. And that is a whole new ball game.
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I am a partner in the employment law team and represent both individuals and employers, but specialise in acting for professionals such as public company directors, lawyers, hedge fund managers, accountants, MDs in investments banks, private equity principals and tech entrepreneurs, both as individuals leaving old employers and setting up or joining new enterprises. I advise senior individuals on new employment contracts and joining LLPs. On the employer side my expertise covers the employment aspects of mergers, acquisitions and outsourcing. My varied employer client base includes professional services firms, hedge funds, publishers, marketing agencies, charities, fitness studios and medical practices. I represent clients in all types of employment related disputes, involving matters like whistleblowing, discrimination, bonus claims, harassment, TUPE, High Court injunctions and unfair dismissal.