Wednesday, November 19, 2014

Can ‘Rooney’ Tackle Discrimination In UK Football Management?

In October, the Football League commissioned a study into why there are so few black managers in English football. Andrew Peters, an Associate with Squire Patton Boggs, examines the US’ ‘Rooney’ rule and whether such an approach could work in the UK.

 

The issue of discrimination in professional football has again come to the fore through public statements by Fifa Vice President Jeffrey Webb in The Guardian newspaper that such discrimination is “overt”. This time attention turns to the under-representation of ethnic minority managers in the English football leagues. In particular, the talk has focussed on the “Rooney Rule”, an American initiative established in 2003 which requires NFL clubs there to interview at least one minority candidate for any head coach or senior football operations vacancy. Though the Rule does not require any active preference to be given to that candidate, minority representation in NFL team management has reportedly jumped over that period from 6 to 22%. If we assume, as we must, that the fortunes involved in doing well in the NFL mean that no team will consciously appoint anyone other than the person it sees as the best candidate, it becomes apparent that the compulsory minority interview has brought candidates into view who might otherwise have been missed.

On this basis Webb, Keith Curle (one of only two non-white football managers currently plying his trade in the top 4 flights of English football, 92 Clubs all told) and Kick it Out believe that the introduction of such a rule would address the under-representation issue here, while others have either denied that racism exists in the sport or argued that if it does, the Rooney Rule is not the answer.

While those statistics are striking, the obvious first question, however, is whether the Rooney Rule would even be lawful in this country. The Equality Act 2010 prohibits discrimination in relation to race (that covers positive discrimination too, for the most part) in both employment and recruitment, including in the ‘arrangements’ made for deciding to whom to offer employment. ‘Arrangements’ is construed broadly and would include any selection process, including for example the questions on an application form or the compiling of any short-list. On the face of it therefore, the Rooney Rule is likely to be held to be discriminatory if, in giving effect to it, the inclusion of the non-white candidate was at the expense of a better-qualified white candidate, rather than his simply being an additional candidate. Even in the latter case, there is still a risk, however – if you have to have an ethnic minority candidate, that excludes considerations of ultimate fit for that person, while a similarly (un-) qualified white applicant might not get that same chance to be interviewed. The Club might argue that the minority candidate would not have got the job anyway and therefore that the white claimant suffered no loss as he would not have got it either, but the Rooney Rule experience in the US seems to militate against this. Where premiership manager salaries run into millions, the compensation for discriminatory exclusion even from a chance of appointment could be very sizeable.

Since April 2011 the Equality Act has allowed positive discrimination in certain very limited circumstances. An employer may hire a candidate based on his race provided that (a) members of that race are disadvantaged or that their participation in an activity is disproportionately low (as would clearly be the case in respect of minority football managers) and (b) this individual is “as qualified as” the other best candidate, i.e. his race was in effect the tie-breaker. In the relatively subjective world of football management, however, it would be very difficult for a Club seeking to rely on this positive action provision to prove that the two candidates were indeed “equally qualified”. These are not all formal or quantifiable qualifications such as coaching badges, length of experience and number of wins. Clubs would quickly find themselves debating the respective but intangible merits of varying levels of success, domestic and international history, reputation, transfer market dealings, links to player targets, etc.

As a result, if a Club sought to exercise the positive action provisions to hire an ethnic minority manager and later faced a Tribunal claim from an unsuccessful white candidate, it may be safer not to base its defence on positive action, but to instead explain why it felt that the ethnic minority candidate was a better match for the role. This avoids the need for the Club to tread the dangerous and difficult line of having to prove that the two candidates were ‘equally qualified’. In reality, since the histories and circumstances of serious candidates for top-flight football management roles will never be identical, the practical likelihood of two such candidates being genuinely “equally qualified” is in any case minimal.

So, if the Rooney Rule would be unlawful discrimination and if the positive action tie-breaker provisions in the Equality Act are potentially dangerous, what is the answer to addressing the blatant under-representation of non-white football managers in the UK?

So what is the answer? It is a difficult problem to solve. There is a Catch-22 in that football clubs, and certainly the elite clubs, inevitably base their hiring policy on experience and a proven track record which are justified and legitimate recruitment criteria.  That in itself will disadvantage non-white candidates trying to break into management as they are less likely to have those attributes, given the exceptionally low number of minority managers currently plying their trade, scarcely 2% of the UK’s top 92 Clubs.  We are unlikely to get any help from the Employment Tribunals for two reasons – first, that Clubs will almost inevitably be found to have appointed on grounds of genuinely perceived merit rather than race, and second, that unless and until the ethnic minority candidates are at least “equally qualified” on the measures referred to in my earlier post, race claims will generally fail anyway.  So overall, the law would seem to offer little direct help in this matter.

The answer may lie in a deeper analysis of the point at which the minority candidates drop out of the running to be football managers. For example, are there proportionate numbers of non-white coaches earning their coaching licence/managing at grass roots level and, if not, why?  Does the problem lie at this early stage? If so, the Equality Act’s positive action provision allows for bodies to overcome a perceived disadvantage by encouraging such under-represented groups to undergo training courses and gain relevant qualifications.  A Club may, for example, choose to hold sessions for its ethnic minority playing or coaching staff to meet leading figures in coaching to discuss how to break into elite football management.   This is not giving minority candidates preference over better- qualified white candidates, but giving them a helping hand to become as (or better) qualified and so to compete on the proverbial level playing field for a managerial appointment on merit.

No one can magic up from thin air a cohort of ethnic minority candidates with equivalent experience and qualifications if they do not exist, but the game and its Clubs and governing bodies can certainly help ensure that there will be such candidates in the future.  In my view, the answer lies, as ever, in ensuring that minority candidates are given (and take) opportunities at gross-roots level.  This is of course not just a race issue – the same could equally be said of women seeking to enter football management.  When Karren Brady became a director of Birmingham City FC aged 23, it is reported that the Club Chairman told her that to succeed she would have to be twice as good as the men there.  “Luckily”, Brady is said to have replied, “that’s not difficult”.   Hopefully a solid pipeline of minority candidates will avoid the same pressure being placed upon them.

 

Andrew Peters
Associate
Squire Patton Boggs (UK) LLP, London
andrew.peters@squirepb.com

 

This article was originally published on the Squire Patton Boggs ‘Employment Law Worldview’ internet site in two parts, which you can access here and here. A search on World Sports Law Report’s internet site for ‘employment’ turned up 161 articles. To sign up for a free trial to World Sports Law Report, click here.

 


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