Sport And Employment Law – The Year In Review 2022/23

This article was first published by LawInSport and can be accessed here.

Welcome to the employment law chapter of LawInSport’s Yearbook 2022.  This year’s chapter will:

1. in light of the ongoing hearing concerning Azeem Rafiq and alleged institutional racism at Yorkshire County Cricket Club, consider whether disciplinary hearings in sport should be held in public or in private; and
2. provide updates in respect of:
   • maternity rights;
   • equal pay rights; and
   • head injuries.

Disciplinary Hearings (Azeem Rafiq hearing)

The principle of open justice requires that justice must be seen to be done as well as done.

“The needs for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of “judging the judges”: by sitting in public, the judges are themselves accountable and on trial.”[1]

Article 6(1) of the European Convention on Human Rights (ECHR) provides, amongst other things, the right to have civil rights and obligations or criminal charges determined in public. Although it is doubtful that sporting disciplinary matters would amount to criminal proceedings, where an individual’s right to play their sport at a professional level is potentially or actually interfered with article 6 will be applicable. This is because in such instance the line between a disciplinary process and a process which determines civil rights is crossed[2]. A decision to reprimand a person (or impose a fine) however does not amount to a determination of civil rights and article 6 would not be engaged.[3]

However, section 6 of the Human Rights Act, 1998 (HRA) only makes it unlawful for a public authority to act in a way that is incompatible with the rights laid down in the ECHR. Therefore, it is not directly unlawful for a private employer to act in a manner incompatible with the ECHR.[4]

Historically, disciplinary proceedings of private organisations have been kept private. The reasoning being that these were private matters that did not concern the public at large. However, this position has slowly been developing and there is a movement towards more openness.

• Substantive proceedings of some professional bodies (for example the General Medical Council, Solicitors Disciplinary Tribunal, and Bar Standards Board) are open to the public.
• Further, although (as referred to above) the HRA only requires public authorities to offer defendants the right to public disciplinary hearings, it has strengthened the trend towards greater openness when it comes to disciplinary hearings of non-public authorities.[5]

Although sporting bodies are ordinarily private bodies and disputes between it and the athletes are regulated by contractual disciplinary proceedings (stemming from the sports’ regulations), there is often a wider public interest in the outcome of those proceedings.[6]

It is against this background that the disciplinary hearing in respect of the allegations of institutionalised racism at Yorkshire County Cricket Club (YCCC) is considered.

Briefly, in 2020 Azeem Rafiq alleged that he faced “institutional racism”, racial harassment, and bullying at the club. He made 43 allegations against YCCC, seven of which were upheld after a lengthy investigation.[7]

This prompted YCCC to dismiss 16 individuals in December 2021, including former captain and coach Andrew Gale. YCCC however later conceded that Gale’s dismissal was procedurally unfair and reached a settlement. Gale has always strongly denied making the alleged racist comments and has described YCCC’s treatment of him as abhorrent.[8]

The England and Wales Cricket Board (ECB) has brought charges against YCCC and seven individuals (including Gale). In November 2022, for the first time, the ECB’s Independent Cricket Disciplinary Commission (CDC) decided to hold a disciplinary hearing in public. Azeem Rafiq, one of the main witnesses, brought the application to have the hearing in public because of the nature of the allegations[9]. The CDC usually holds hearings in private before publishing its decisions, but because of the public interest in this case it made an exception. This was despite protests from many of those involved (including the ECB), many of whom gave evidence on condition that the sources would not be publicly named.[10]

Because the hearing will be in public, Tim Bresnan, Matthew Hoggard and John Blain have withdrawn from the proceedings citing that they do not believe they will receive a fair hearing. Gale had prior to this, in June 2022, already announced his decision to not engage with the ECB’s disciplinary process or acknowledge any sanction imposed on him.[11]

Gale has said that “I refuse to have my life defined by unsubstantiated allegations by an embittered former colleague and by a YCCC/ECB witch-hunt” [12]. He has also stated that “I have no faith that a fair and just outcome will be the result if I engage in the process … I believe that we are being put forward as scapegoats and I simply will not cooperate in that process”[13].

Arguable benefits of having such proceedings in public:

• Judges are subject to public scrutiny.
• Transparency lends confidence to the proceedings.
• The public can understand the results and why they are reached.
• Publicly accessible decisions mean that individuals in future cases would know the likely sanctions they would be facing.
• It would be clear that similar cases were being treated in a similar way.

Arguable detriments of having such proceedings in public:

• Because of the fame of individuals involved in some instances, these types of matters can easily be turned into a public spectacle which can harm not only the individuals accused but also their families.
• Individuals may be tried in the court of public opinion, with sporting bodies not wishing to contradict such opinion in fear of running foul of ‘cancel culture’.

It seems at odds that Gale, and others, can merely chose to not take part in the proceedings. However, this is because of the parameters of the applicable rules.

• The CDC Regulations apply to registered cricketers and coaches. Wide ranging sanctions can be imposed, including: reprimand, suspension from playing domestic and/or international cricket matches, and up to an unlimited fine.
• The CDC can require the attendance of the individuals at the hearing. Should individuals decided not to take part, then such reasonable inferences as the CDC deems proper can be made.
• When it comes to enforcing sanctions – specifically fines, the CDC Regulations have a bit of a gap. For players that are actively participating in professional cricket, the consequence of failing to pay a fine imposed is suspension from participating in any match until the fine and / or costs order is paid in full. However, for players (like Gale) who are no longer actively participating in professional cricket there is no method of enforcement, unless the individual returns to professional cricket.[14]

One way to solve the gap on sanctions in future is to have a provision that fines and costs imposed following a disciplinary investigation are recoverable by the board as a civil debt. In such instance, if an individual fails to pay a fine or costs, there is a mechanism through which a financial sanction can be enforced by the courts in England and Wales. The Premier League Handbook makes provision for such a mechanism. [15]

Of the individuals charged by the CDC, only Gary Ballance remains active in the game. However, he has transferred his international allegiance to Zimbabwe and the CDC’s jurisdiction is limited to domestic cricket[16]. It would therefore seem as if the CDC will be left largely toothless and the sole consequence would be potential reputational damage.

Comment

In the author’s view, it is concerning that this hearing will be in public where evidence has been obtained on condition that the sources would not be publicly named. Whether to have a public or a private hearing is something that should be decided as soon as possible, and individuals should be told that there is a possibility of a public hearing. As the CDC usually operates in private one can see why the assurance were given. However, this begs the question – why should this matter be public when the standard practice is for disciplinaries to be held in private?

Ironically, as the CDC’s written reasons for its decision remain in private, the public can only speculate on the reasoning behind the decision. As this is a scandal that has rocked English cricket and threatened to tear it apart, one does wonder if Gale is correct and they are being put forward as scape goats.

Although the CDC’s decision in this matter leaves the author with some concerns, that does not detract from the fact that, in general, it may be advisable for sporting bodies to re-evaluate matters and assess whether it is truly in the best interest to have disciplinary hearings in private.

In conclusion, although the principle of open justice has developed in relation to and properly applies to court proceedings, it is not incongruous for it to also have application to most sports disciplinary and regulatory proceedings. This is something sporting bodies will have to grapple with as either athletes or witnesses may seek to have such hearings held in public. (For a detailed discussion on open justice in sports disputes, see this article on LawInSport[17]).

Maternity Rights

In both the 2019/20 and the 2020/21[18] section the developments surrounding maternity rights was reviewed. Although, historically, maternity rights for athletes had been virtually non-existent, many sporting associations have begun taking steps in the right direction.

Gunnarsdóttir v Olympique Lyonnais

The big development in this area in 2021 were the FIFA maternity policy for women’s football[19] (for further detail see the 2020/21 section). These rules were the basis for Sara Björk Gunnarsdóttir (captain of the Icelandic national football team and Juventus player) being able to bring a successful claim against Olympique Lyonnais (Lyon) for underpayment during her maternity leave.

The decision can be viewed in full here. Further, a detailed analysis of the case can be found on LawInSport[20], however briefly: during her maternity leave, Gunnarsdóttir realised that Lyon were not paying her salary in line with FIFA’s maternity policy. In fact, she only received a fraction of her normal salary.

After Gunnarsdóttir contacted the club, Lyon promised to pay the entire salary for the first two months, however its position was that it did not owe Gunnarsdóttir any further monies under French law. Lyon was of the view that French law rather than FIFA’s maternity policy were applicable.

Consequently, Gunnarsdóttir lodged a complaint against Lyon with FIFA on 10 September 2021. The FIFA Dispute Resolution Chamber panel ruled in favour of Gunnarsdóttir and ordered that Lyon pay €82,094.82 within 45 days or face a transfer ban.

This was the first ruling to enforce FIFA’s new maternity policy and it should be seen as a ‘wake-up call’ for football clubs.

Women’s Super League and Championship

2022 introduced further[21] positive steps in this area. The Women’s Super League and Championship have recently agreed to pay full wages for the first 14 weeks of maternity leave, followed by statutory pay. Updated terms for injury and illness and termination of contract for long-term injury were also agreed.

Toni Duggan will become the first England player in the Women’s Super League to take advantage of this updated policy with baby Duggan due in early 2023.[22]

Rugby Football Union (RFU) maternity policy

In February 2023, RFU introduced[23] a ground breaking new maternity policy for contracted England Women’s players.

The policy ensures that the safety of the player and the unborn child are protected if they continue to be in the team, with a full risk assessment undertaken when a player first advises of pregnancy. Players due to go on maternity leave will have the opportunity to move into other safe employment – for example community coaching – until they go on leave.

The policy also provides for 26 weeks full pay.

Equal pay rights

United States Soccer Federation (USSF)

In previous years (2019/20 and 2020/21) we have considered the US women’s national football team’s wage discrimination lawsuit against USSF.

• On 1 May 2020, Judge Klausner ruled in favour of the USSF’s motion for summary judgment with regard to the Equal Pay Act claim, finding that the players had not demonstrated a triable issue that the women’s national team players are paid less than the men’s national team players.
• The players appeal this decision and a settlement[24] was reached while the case was on appeal before the US Court of Appeals for the Ninth Circuit.
• The settlement includes a $24 million payment and a pledge to equalize pay between the men’s and women’s national teams in all competitions, including the World Cup, in the teams’ next collective bargaining agreements.
• (Regarding the issue of unequal working conditions, a settlement was reached in December 2020.)

As required by the settlement, in May 2022, a new collective bargaining agreement was agreed between the players’ union and USSF which will equalize the women’s future pay with that received by the men’s team. A detailed analysis of the new collective bargaining agreement can be found on LawInSport[25].

Spanish Football Association

In 2019, after Spain’s top women’s division (the Primera División) went on strike, the Association of Women’s Football Clubs and various players’ union concluded the league’s first ever collective bargaining agreement.[26]

Fast forward to 2022, and in a step forward towards equality in football in Spain, the Spanish Women’s National Football Team signed two historic agreements with the Spanish Football Federation regarding their economic conditions and image rights. (Further information on the agreements can be found on LawInSport).[27]

Although there remain differences between the men’s and the women’s teams agreements, the equalizing of amounts for friendly matches, as well as the distribution percentages of the money prize, are steps in the right direction.

Football Association of Wales

Historically, Wales’ men’s and women’s senior players[28] have not been paid the same for representing their country. This inequality has been addressed in countries like the USA, England, Brazil, Australia, Norway and New Zealand; where players are paid the same international match fee.

As of 2023 however, Wales joins these countries as men’s and women’s senior players will be paid the same for representing Wales. In order to achieve pay parity, the Wales men’s senior team have agreed to a 25% pay cut to enable a 25% rise for the women’s team.

This demonstrates what can be achieved by all parties working together to make equality a reality.

Looking Forward

As the pervious paragraphs highlight, progress is being made – however there is still a long way to go.

A 2021 BBC Sports study[29] has found that the majority of sports do now offer equal winning prize money at the top level. However, the biggest gaps between male and female athletes are in football, golf and basketball. The disparity is evident from the graph[30] below.

This disparity is further born out in the prize money for the Fifa World Cup in Qatar ($440 million) versus the prize money available in the woman’s tournament in mid-2023 ($60 million).

This is in stark contrast to the fact that, per a PWC survey[31], “More than 70 per cent of sports executives believe women’s sports revenue will grow by more than 15 per cent over the next three to five years”. Further, the amount of women’s sport watched by the UK public (on average) is seven times higher than in 2012 and, in 2022, sponsorships were up 20 % year-over-year. Notably, European women’s soccer is set to hit €686 million in annual commercial returns over the next 10 years.

Reyes Bellver[32], a lawyer for the captains of the Spanish Women’s National Football Team, noted that “The historic agreement by the United States Women’s National Team has also given impetus to the equal pay movement in women’s football across the world”.

All these factors together will hopefully mean that equality in sport is not just some castle in the sky.

Head Injuries

The 2020/21 section dealt with the increased awareness around head injuries and the fact that various sports were making changes to protect players.

In December 2020, nine players diagnosed with long-term brain injuries sent pre-action letters of claim to World Rugby, the Rugby Football Union and the Welsh Rugby Union, with several former rugby players since joining the claim[33].

Since then[34], proceedings were issued in July 2021 and the lawsuit has grown to include more than 200 ex-professional players. In addition,[35] to this, a group of more than 55 former amateur players have also begun legal action against the Rugby Football Union, the Welsh Rugby Union and World Rugby. There is further a potential claim[36] by 75 rugby league players against the Rugby Football League.

Although these legal proceedings will take years to resolve, the silver lining is that steps are being taken now to make the sport safer for future generations.

Conclusion

With the CDC disciplinary hearing set to start in March 2023 it will be interesting to see how the matter proceeds, especially as the majority of the accused individuals are not taking part in the proceedings. However, leaving CDC disciplinary hearing to one side, the genie has been let out the bottle and it is likely that the CDC’s decision will be used as a basis for more disciplinary matters to be heard in public in future.

Positive steps are being made in the area of equality; the question is whether these are happening as fast as they should be considering the ever-increasing interest in women’ sport. What is needed now is greater media coverage and institutional investment in women’ sport.

The rugby lawsuits surrounding head injuries are snowballing. Although it is unlikely that these will be resolved any time soon, it will be interesting to see how they develop further and what happens in other sports.

[1] Sir Jack Jacob’s Hamlyn Lecture “The Fabric of English Civil Justice”, quoted by Lord Woolf MR in Hodgson v Imperial Tobacco Limited (No. 1) [1998] 1 WLR 1056, available at: https://www.bailii.org/ew/cases/EWCA/Civ/1998/224.html.

[2] “Jackson & Powell on Professional Liability”, 9^th Edition, Chapter 7, Section 8(a) paragraph 7-115. Albert and Le Compte v Belgium (1983) 5 EHRR 533, available at: https://www.bailii.org/eu/cases/ECHR/1983/1.html.

[3] R (Thompson) v Law Society [2004] EWCA Civ 167, available at: https://www.bailii.org/ew/cases/EWCA/Civ/2002/1744.html.

[4] “IDS Employment Law Handbooks”, Vol 13 Chapter 2, paragraph 3.69.

[5] Kenneth Hamer “Public v Private Hearing and Publicity”, Henderson Chambers, 29 May 2009, available at: https://www.hendersonchambers.co.uk/2013/12/12/public-private-hearings/.

[6] Nick De Marco KC “ECB Racism Disciplinary Proceedings To Be Held In Public: Open Justice In Sports Disputes”, LawInSport, 07 November 2022, available at: https://www.lawinsport.com/topics/item/ecb-racism-disciplinary-proceedings-to-be-held-in-public-open-justice-in-sports-disputes.

[7] Seth Roe, Ellie Sergeant “The Azeem Rafiq Case: How Sports Can Better Tackle Player Discrimination”, LawInSport, 25 November 2021, available at: https://www.lawinsport.com/topics/item/the-azeem-rafiq-case-how-sports-can-better-tackle-player-discrimination#_Toc88642533.

[8] Matt Hughes “EXCLUSIVE: Yorkshire agree six-figure compensation deal with Andrew Gale over unfair dismissal case amid fallout from Azeem Rafiq racism scandal… as the club concede their former captain and coach’s claim during mediation”, Mail Online, 15 September 2022, available at: https://www.dailymail.co.uk/sport/sportsnews/article-11213309/Yorkshire-agree-six-figure-compensation-deal-Andrew-Gale-unfair-dismissal-case.html.

[9] “Why should sports disciplinary hearings be made public? Nick De Marco QC answers”, LawInSport, available at: https://www.youtube.com/watch?v=62rqDkUQ0P4.

[10] Simon Burnton “ECB hearing on alleged racism at Yorkshire descends into chaos as trio pull out”, the Guardian, 03 February 2022, available at: https://www.theguardian.com/sport/2023/feb/03/ecb-hearing-on-alleged-racism-at-yorkshire-cricket-descending-into-chaos-as-trio-pull-out.

[11] Simon Burnton “ECB hearing on alleged racism at Yorkshire descends into chaos as trio pull out”, the Guardian, 03 February 2022, available at: https://www.theguardian.com/sport/2023/feb/03/ecb-hearing-on-alleged-racism-at-yorkshire-cricket-descending-into-chaos-as-trio-pull-out.

[12] “Yorkshire agree compensation settlement with Andrew Gale and Richard Pyrah”, Sky Sports, 15 September 2022, available at: https://www.skysports.com/cricket/news/12123/12698018/yorkshire-agree-compensation-settlement-with-andrew-gale-and-richard-pyrah.

[13] Simon Burnton “ECB hearing on alleged racism at Yorkshire descends into chaos as trio pull out”, the Guardian, 03 February 2022, available at: https://www.theguardian.com/sport/2023/feb/03/ecb-hearing-on-alleged-racism-at-yorkshire-cricket-descending-into-chaos-as-trio-pull-out.

[14] Ali Amerjee, Charlie Spink “Caught out: investigations and sanctions in cricket”, Linklaters LLP, 07 February 2023, available at: https://www.linklaters.com/en/insights/blogs/sportinglinks/2023/february/investigations-and-sanctions-in-cricket.

[15] Ali Amerjee, Charlie Spink “Caught out: investigations and sanctions in cricket”, Linklaters LLP, 07 February 2023, available at: https://www.linklaters.com/en/insights/blogs/sportinglinks/2023/february/investigations-and-sanctions-in-cricket.

[16] Simon Burnton “ECB hearing on alleged racism at Yorkshire descends into chaos as trio pull out”, the Guardian, 03 February 2022, available at: https://www.theguardian.com/sport/2023/feb/03/ecb-hearing-on-alleged-racism-at-yorkshire-cricket-descending-into-chaos-as-trio-pull-out.

[17] Nick De Marco KC “ECB Racism Disciplinary Proceedings To Be Held In Public: Open Justice In Sports Disputes”, LawInSport, 07 November 2022, available at: https://www.lawinsport.com/topics/item/ecb-racism-disciplinary-proceedings-to-be-held-in-public-open-justice-in-sports-disputes.

[18] Bianca Balmelli “Sport and Employment Law – the year in review 2019/20”, LawInSport, 14 July 2020, available at: https://www.lawinsport.com/topics/item/sport-and-employment-law-the-year-in-review-2019-20. Bianca Balmelli “Sport and Employment Law – the year in review 2020/21”, LawInSport, 14 July 2020, available at: https://www.lawinsport.com/topics/item/sport-and-employment-law-the-year-in-review-2020-21 .

[19] “Women’s Football: Minimum Labour Conditions For Players”, FIFA, available at: https://resources.fifa.com/image/upload/women-s-football-minimum-labour-conditions-for-players.pdf?cloudid=f9cc8eex7qligvxfznbf

[20] David Winnie, Manan Agrawal, Sean Cottrell “FIFA’s Maternity Benefits For Female Players Enforced By Football Tribunal (Sara Björk Gunnarsdóttir V Lyon)”, LawInSport, 03 February 2023, available at: https://www.lawinsport.com/topics/item/fifa-s-maternity-benefits-for-female-players-enforced-by-football-tribunal-sara-bjoerk-gunnarsdottir-v-lyon.

[21] “Maternity pay: Professional female players in England to receive improved terms”, BBC Sport, 1 February 2022, available at: https://www.bbc.co.uk/sport/football/60214733.

[22] “Toni Duggan becomes first England footballer in Women’s Super League to take maternity leave”, Independent, 14 November 2022, available at: https://www.independent.co.uk/life-style/women/toni-duggan-pregnant-maternity-leave-b2224526.html.

[23] “New Maternity, Pregnant Parent & Adoption Leave Policy For England Women Players”, England Rugby, 16 February 2023, available at: https://www.englandrugby.com/news/article/new-maternity-pregnant-parent-adoption-leave-policy-for-england-women-players.

[24] “US Women’s Soccer Pay Bias Pact Gets Nod, Lawyer Fees Unresolved”, Bloomberg Law, 13 December 2022, available at: https://news.bloomberglaw.com/litigation/us-womens-soccer-pay-bias-pact-gets-nod-lawyer-fees-unresolved.

[25] Sarah Hartley “How The US Women’s Soccer Team’s New Equal Pay Deal Works”, LawInSport, 06 June 2022, available at: https://www.lawinsport.com/topics/item/how-the-us-women-s-national-soccer-team-s-new-equal-pay-agreement-works.

[26] Bianca Balmelli “Sport and Employment Law – the year in review 2019/20”, LawInSport, 14 July 2020, available at: https://www.lawinsport.com/topics/item/sport-and-employment-law-the-year-in-review-2019-20.

[27] Reyes Bellver “Spanish Women’s New National Agreement: A Major Step Towards Equal Pay In Football”, LawInSport, 15 September 2020, available at: https://www.lawinsport.com/topics/item/spanish-women-s-new-national-agreement-a-major-step-towards-equal-pay-in-football.

[28] Michael Perlman “Equal pay: Football Association of Wales agree landmark deal”, BBC Sport, 18 January 2023, available at: https://www.bbc.co.uk/sport/football/64299007.

[29] Ed Dixon “Study: Soccer has biggest athlete gender prize money gap”, SportsPro, 8 March 2021, available at: https://www.sportspromedia.com/news/soccer-athlete-gender-prize-money-gap-2021-study.

[30] Sam Carp “‘The onus is on everyone to do more’: Where does sport stand on equal pay?”, SportsPro, 18 July 2022, available at: https://www.sportspromedia.com/features/equal-pay-womens-sport-uswnt-cindy-parlow-cone-sophie-goldschmidt-triathlon/?zephr_sso_ott=GDN0XL.

[31] Ed Dixon “Study: Women’s sports revenue set to grow more than 15% over next three to five years”, SportsPro, 7 February 2023, available at: https://www.sportspromedia.com/news/womens-sport-growth-investment-private-equity-pwc-survey/.

[32] Reyes Bellver “Spanish Women’s New National Agreement: A Major Step Towards Equal Pay In Football”, LawInSport, 15 September 2020, available at: https://www.lawinsport.com/topics/item/spanish-women-s-new-national-agreement-a-major-step-towards-equal-pay-in-football.

[33] “Six more former players join concussion lawsuit against RFU, Welsh Rugby Union and World Rugby”, Sky Sports, 17 December 2020, available at: https://www.skysports.com/rugby-union/news/12321/12165318/six-more-former-players-join-concussion-lawsuit-against-rfu-welsh-rugby-union-and-world-rugby. See also “Ex-England international joins concussion lawsuit”, Planet Rugby, 23 March 2021, available at: https://www.planetrugby.com/ex-england-international-dan-scarbrough-joins-concussion-lawsuit-against-rugbys-governing-bodies/.

[34] “Ex-British & Irish Lions stars join brain injury legal action”, BBC News, 29 December 2022, available at: https://www.bbc.co.uk/news/uk-wales-64111598.

[35] “Amateur players launch lawsuit against rugby authorities over brain injuries”, the Guardian, 19 January 2023, available at: https://www.theguardian.com/sport/2023/jan/19/amateur-players-launch-lawsuit-against-rugby-authorities-over-brain-injuries.

[36] “Dementia and sport: Rugby players launch legal action against governing bodies”, BBC Sport, 25 July 2022, available at: https://www.bbc.co.uk/sport/rugby-union/62290045.