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Rio Ferdinand’s exclusion from England – victimisation?

The sports lawyer clutching their copy of the Equality Act might pose this thought when reflecting on current selection decisions and the continuing absence of Rio Ferdinand from the National team. On 23 October 2011 QPR play Chelsea after which it is alleged that John Terry had racially abused Anton Ferdinand; allegations that were later rejected by a Magistrate on 13 July 2012 but, nevertheless, were upheld by an FA Disciplinary Panel on 27 September 2012.

One week after Terry was banned for using racial abuse, on 4 October 2012 Roy Hodgson informs passengers on a Jubilee Line tube train that Anton’s brother, Rio Ferdinand, had reached the end of his international career. Not quite a formal press conference and credit to Roy for being a man of the people, but those pesky smart phones get everywhere.

A classic case of race victimisation – as a result of Anton’s complaint about racial abuse, the international career of his brother (who would usually play alongside Terry for England) is ended to avoid dressing room friction? Is that detrimental treatment because of a protected characteristic in the form of race?

The answer is almost certainly not. 

First, on 23 September 2012 (before the FA’s decision) Terry retired from international football.  It makes no sense to argue that Rio was discarded from the England team to avoid a potentially embarrassing scenario of him lining up alongside his brother’s abuser when Terry had already retired from international football. In short, there is simply no credible evidence that Rio was discarded because of a protected act: Chief Constable of West Yorkshire v. Khan [2001] IRLR 830 (HL).  

Secondly, Rio has unfortunately struggled with injuries at his club, Manchester United, over recent years.  In the circumstances, it is not surprising that his opportunities at international level would suffer in consequence.

Thirdly, two years before the next World Cup in Brazil, it is unsurprising that Hodgson is looking to develop the defenders of the future rather than retain 34-year old Rio.

Those are all reasons that, in causative terms, are as a matter of common sense and common justice genuinely separable from the complaint made by Anton: Martin v. Devonshire Solicitors UKEAT/86/10 at 22 C- D (Underhill P). 

Whilst the circumstances of Hodgson’s revelation led to an apology to Rio – and commentators are still calling for Rio’s recall – this raises no legal concerns.  If, however, one reflects on the more general legal position it does prompt some interesting questions. Is selection for a national team selection of an employee or contract worker? Does the existence of a central contract in some sports raise risks of claims?

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