A professional football club can be liable for discriminatory comments even where they are made by someone who does not have legal capacity to bind or represent the club, if the person making the comments holds himself out and is perceived in the media and amongst the general public as playing a leading role in the club.
The European Court has today handed down a Judgment to this effect in the case of Asociatia ACCEPT v Consiliul National pentru Combaterea Discriminarri Case C-81/12.
The case arose out of the extreme comments made by George Becali, the controversial Romanian politician and businessman, in relation to recruitment at Romania’s most renowned football club Steaua Bucuresti.
On 13 February 2010, Mr Becali gave an interview in which he said that FC Steaua would not employ a Bulgarian footballer who was rumoured to be gay. He explained:
“Not even if I had to close [FC Steaua] down would I accept a homosexual on the team… There’s no room for gays in my family and [FC Steaua] is my family. It would be better to play with a junior than someone who was gay. I have rights just as they do and I have the right to work with whomever I choose.”
Mr Becali had been a high-profile shareholder in FC Steaua and was publically associated with the club, often speaking to the press on its behalf. Although at the date he made the discriminatory comments he had sold his shares, he did not change his attitude in public appearances and continued to describe himself as the club’s ‘banker’.
Rather than immediately seeking to distance itself from these comments, the club’s lawyer was said to have confirmed that FC Steaua had adopted a policy of not hiring homosexual players because ‘the team is a family’ and the presence of a homosexual on the team ‘would create tensions in the team and amongst spectators’.
ACCEPT, a Romanian LGBT rights organisation, complained to Romania’s National Council for Combating Discrimination (the state authority empowered to impose fines for discrimination). Before the council, the complaint against Becali was upheld and a written warning was imposed. However the council rejected the case against FC Steaua, holding that in the circumstances the case did not fall within the scope of a possible employment relationship as Becali was only a shareholder. Thus Becali’s statements could not be regarded as emanating from an employer, its legal representative or a person responsible for recruitment.
ACCEPT appealed against that decision seeking, amongst other things, a declaration that these facts fell within the scope of employment matters. The Romanian court then referred the case to the European Court for a preliminary ruling on this and various other points. The European Court was asked whether discrimination provisions applied where “a shareholder of a football club who presents himself as, and is considered in the mass media as, playing the leading role (or “patron”) of that football club” makes a discriminatory statement to the mass media.
European Court’s Judgment
The European Court’s answer to this question was “yes”.
It found that the “mere fact” that discriminatory statements might not come directly from a defendant employer is not necessarily a bar to shifting the burden of proof to that employer to prove it has not discriminated. Therefore, FC Steaua could not deny the existence of facts from which it may be inferred that it had a discriminatory recruitment policy merely by asserting that Becali was not legally capable of binding the club in recruitment matters.
It also commented that in a situation such as this, the fact that an employer might not have clearly distanced itself from the statements concerned is a factor which the court hearing the case may take into account in the context of an overall appraisal of facts.
What does this mean for employers?
The case gives rise to a scary prospect for employers, whether football clubs or not – the risk that they could be liable for discriminatory comments made by someone publicly associated with the company but not employed by it, such as a major shareholder (or even a former shareholder).
Such figures are much harder to control than employees, yet their actions will inevitably have much greater impact than they would if carried out by an anonymous employee.
So what can employers do to protect themselves? A number of measures were suggested in the course of the Becali/FC Steaua proceedings which most employers will already have in place, and which those who don’t would be wise to adopt:
On this last point, it is worth comparing FC Steaua’s reaction to Becali’s comments with the reaction to the recent appointment of Paolo Di Canio as Sunderland FC’s new manager.
Di Canio is renowned for making a facist salute while playing for Lazio, and it is widely reported that he used the term “I am a facist, not a racist” in an interview with an Italian news agency. Reaction to his recent appointment has been swift. Most dramatic was David Milliband’s resignation from his non-executive directorship of the club. Di Canio himself was quick to refute the reports, stating that his comments had been taken out of context. As for Sunderland FC, it reacted speedily to defend Di Canio and its decision to hire him, with its chief executive stating that to accuse him of being a racist or having facist sympathies was insulting not only to him but to the integrity of the football club.