Giving racism the legal boot

Black footballers facing racial abuse at matches could resort to employment tribunals if strong action is not taken, writes Stephen Pinder

As a solicitor and football fan, I reacted with outrage at the treatment of black footballers during recent international and European matches.

Black players rightly now have equal status among the superstars of our national game, and recent incidents are a stark reminder of the attitude which prevails among fans across parts of Europe.

The response of the international governing bodies has been to encourage tolerance and to devise action plans to take racism out of football.

Ignorance and intolerance in a crowd are not easily cured by regulation, and only over time will behaviour change.

As a solicitor, my outrage at the treatment of black players led me to consider the legal implications of the events on the field.

In particular, the clubs are the employers for European matches, while the Football Association (FA) contracts with the players for international games.

The supervisory bodies are UEFA and FIFA for matches in Europe and between nations.

As an employer, a club could be responsible for subjecting a player to discrimination on racial grounds under the Race Relations Act 1976.

The same could be said for the FA in relation to international matches.

However, the FA would have no control over the local ground or association.

That control would rest with UEFA or FIFA.

An employer discriminates against an employee if the employee is subjected to less favourable treatment on the grounds of race, including being subjected to some other detriment.

In most cases, this will be from the employer directly or the employer's servant or agent.

An employer can be responsible for the acts of third parties, if the conduct complained of is foreseeable.

The authorities are led by the case of Burton and Rhule v De Vere Hotels [1996] IRLR 596, in which two employees subjected to racist jokes by Bernard Manning established that they were the victims of unlawful discrimination even though the alleged harasser was not the employer.

In principle, a black player could rely on the Race Relations Act and case law.

Exposing a player in a match before crowds in certain countries carries with it a likelihood of racial abuse of a level which could be said to amount to a detriment.

It is difficult to control everyone in a crowd, especially in another country.

The difficulty in legal terms for club and country is that the circumstances are now foreseeable, and by naming a black player on the team sheet, they will know that harassment will occur.

The answer is not to refuse to pick a black player, but rather for the football authorities to take a robust stance against racism.

If the top clubs and national teams refuse to play before racist crowds, then action would follow.

The television paymasters do not want coverage disrupted by boycotts by teams or disgraced by racist chanting.

If racism occurs - and despite proper efforts, is repeated - the answer is simple: clubs and national teams can be made to play behind closed doors.

If a further incident occurs, points can be deducted, and finally there should follow elimination from competitions.

Europe promises its citizens respect for private and family life, and freedom from degrading treatment through the Convention on Human Rights.

Despite these promises, our national game and the global television spectacle is blighted by racism.

Our own legislation and case history confirms that players have legal rights while clubs and the FA has legal obligations.

Black players have had to accept abuse on foreign fields for too long and if a claim to an employment tribunal is to be avoided, those responsible for running the game must start to turn the tide.

Stephen Pinder is a partner at Liverpool-based Edwards Abrams Doherty and a part-time chairman of employment tribunals