This article by Bianca Balmelli was written as part of LawInSport’s year in review series 2019/20 and can also be viewed on the LawInSport website.
This section reflects on:
Across the board people have been reassessing how the traditional views of what it means to be an ‘employee’ fit within our modern world.
The traditional test of when an employment relationship exists, espoused in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 1968 1 All ER 433 (QBD), has been developed over the years. In simple terms the test comes down to three irreducible minimum requirements[1]:
In addition to these requirements, when considering an individual’s employment status, the Courts will further consider whether the provisions of the contract are consistent with it being a contract of employment and will scrutinise the practical reality[2] of the parties’ relationship.
Being an employee comes with a host of legal protections and rights. Employees also have obligations towards their employers and will have to abide by reasonable restrictions placed on them by their employers.
Employment issues in sport differ according to the sport under consideration. In some sports, such as football, there is generally no question that the players are employees. In other sports, such as tennis, the players are traditionally not seen as employees. Between these two extremes lie a number of sports where the answer is not so clear. This includes, for example, the status of national athletes (like Team GB cyclists) who are funded through world class performance programmes with a national governing body (Funded Athletes).
Recently, the case of Varnish v British Cycling Federation and another [2018] 12 WLUK 591 (ET) explored the question of whether British cyclist Jess Varnish was an employee or a ‘worker’ of British Cycling or UK Sport.
Amongst other things, Varnish argued that she was an employee or a ‘worker’ because in training and competing in subsequent competitions in pursuit of medals for the British Team she was personally performing services for British Cycling and / or UK Sport (such services gave British Cycling and UK Sport the opportunity to fulfil their key performance indicators). Further, in exchange for these services she received wages in the form of benefits, for example world class coaching, bespoke training programmes and top-quality clothing & equipment, and the Athlete’s Performance Award from the British Cycling and UK Sport.
The Employment Tribunal however held that Varnish was neither an employee nor a ‘worker’ and her claims were consequently dismissed. The key finding from the Tribunal was that there was no work / wage bargain as Varnish did not perform a service for British Cycling (or UK Sport) and that she did not receive any wage from British Cycling (or UK Sport). A detailed analysis of the Varnish Employment Tribunal decision can be found in “Sport and Employment Law – the year in review 2018/19”[4].
Varnish appealed this decision in so far as it related to British Cycling only. The appeal was heard over two days in May 2020. The EAT decided to reserve its judgment and therefore judgment will be given at a later date. The appeal focussed on the legal question of what the requirement for service within the definition of worker and employee involves. Varnish specifically contended that the Tribunal’s approach to the question of mutuality of obligation was not consistent with the case law and was too narrow an interpretation of the wage / work bargain. Whether the EAT upholds or dismisses this appeal, its decision will likely have far reaching consequences for how certain categories of athletes, such as Funded Athletes, are viewed in relation to their employment status.[5]
UPDATE: The EAT handed down judgment on 14 July 2020[6] in which it dismissed Varnish’s appeals. In respect of the challenge relating to the Tribunal’s approach to the question of mutuality of obligation the EAT held that the Tribunal had asked itself the correct question, although the EAT noted that the reasoning was terse.
As such the EAT found that Varnish’s “real challenge … [was] not that there was some misapplication of the ‘mutuality of obligation’ test, but with the Tribunal’s conclusion that what the Claimant did under the Agreement did not amount to ‘work’.”
The EAT held that the Tribunal’s conclusion in that regard, was a conclusion it was entitled to reach and did not disclose an error of law. The EAT emphasised that it was the task for the Tribunal to consider all the relevant factors (including mutuality of obligation) in order to determine whether the contract should be classified or categorised as one of employment, and that this was an evaluative judgment. As such, the EAT can only interfere with such evaluative judgments if there is some clear misdirection or if the conclusion reached is one that no reasonable tribunal properly directed could have reached. The EAT held that in this case there was no such misdirection.
The EAT highlighted that the Tribunal’s conclusion does not mean that in another case, where perhaps the contractual provisions, and the balance between services provided to and performed by the athlete, are different, the training done by a cyclist could not be found to amount to work.
The Varnish decision therefore does not sound the death knell on whether certain categories of athletes, such as Funded Athletes, are employees; however, it will be relevant in future cases and athletes asserting employment status will need to bear it in mind when formulating their case.
A further point to note is that even where athletes, such as Funded Athletes, are held to be employees or ‘workers’ there is a question about whether such status would practically offer them protection.[7] One significant issue relates to the fact that legal proceedings take time, and that by the time the matter is resolved the athlete may have retired, as has happened with Varnish.
The importance of the issue of employee status is highlighted in another recent case concerning football referees. In Revenue and Customs Commissioners v Professional Game Match Officials Ltd [2020] UKUT 147 (TCC) the Upper Tribunal (Tax and Chancery) considered the question of whether certain referees (referred to in the judgment as the “National Group” referees) engaged to officiate at football matches by Professional Game Match Officials Limited (PGMOL) were, at the relevant times, employees of PGMOL.
The issue arose following certain determinations and decisions issued by HMRC in respect of PGMOL, which were based on PGMOL being the employer of the National Group referees. PGMOL appealed to the First-Tier Tribunal (FTT) against these determinations and decisions. The FTT held that the “National Group” referees were not employees due to there being insufficient mutuality of obligation and lack of control. The decision of the FTT was appealed by HMRC.
The Upper Tribunal found that the “National Group” referees were not employees. In coming to this conclusion the Upper Tribunal considered the Ready Mix test (referred to above) and found that there was insufficient mutuality of obligation. The basis for this conclusion was the fact that:
“in the absence of an obligation on PGMOL to provide at least some work (or some form of consideration in lieu of work) or in the absence of an obligation on the referee to undertake at least some work, there would be insufficient mutuality of obligation to characterise the Overarching Contract as a contract of employment.”
Further, in respect of the individual contracts, there was also insufficient mutuality of obligation in that the referee was entitled to withdraw from the contract, without breach, at any time before a match and the only restriction on this right was the requirement to notify PGMOL. Similarly, PGMOL was free to cancel a particular appointment and there was no limit on PGMOL’s rights in this respect.
Although some of the documents referred to referees being “expected” to do various things, including “be readily and regularly available for appointment to matches”, it was held that these were not legal obligations. The reasoning was that, in the present case, because the referees were highly motivated and wished to make themselves available as much as possible, there was no need for a legal obligation.
Although the Upper Tribunal upheld the FTT’s decision in respect of mutuality of obligation, it did not do so in respect of the finding that there was insufficient control for the relationship to be an employment relationship. However, in light of its finding in respect of mutuality of obligation, there was no need to remit the issue of whether or not there was sufficient control back to the FTT.
There are obvious benefits to being an employee. This section will focus on two specific points:
Female employees in the UK are entitled to the following statutory maternity pay: 90% of their average weekly earnings before tax for the first 6 weeks and £151.20 or 90% of their average weekly earnings (whichever is less) for the following 33 weeks.[8]
Historically, maternity rights for athletes have been virtually non-existent. Many female athletes therefore delayed starting a family until their careers were over. This is starting to change with more and more female athletes taking time out of their sporting career to have a child, for example: Serena Williams, Jo Pavey and Allyson Felix. There are examples of sporting associations which have taken steps in the right direction[9] and have begun to provide such rights to their athletes. Some examples are discussed below.
Headway is also being made in sponsorship agreements, although it must be noted that athletes are not employees of their sponsors and maternity benefits are therefore subject to contractual negotiation. Nike[14] suffered a backlash over its maternity policy and treatment of sponsored athletes Allyson Felix, Alysia Montaño, Kara Goucher and Phoebe Wright. Previously, Nike’s policy was that the contracts of athletes who took time away from their training to give birth and recover would be paused and the athletes would not be paid under the sponsorship during such time. As a result of the backlash Nike has made changes to its maternity policy for sponsored athletes so that female athletes would not be “adversely impacted financially for pregnancy” for 18 months after becoming pregnant.
After the controversy Nike suffered, other companies[15] have also made changes to their maternity policies. Nuun, Altra, Brooks and Burton have stated that they too will implement contractual guarantees for pregnant athletes.
From the above examples it is clear that steps are being taken in the right direction. However, the impact of the COVID-19 pandemic on sport and, in particular on women’s sport, may set matters back. Lydia Banerjee considers this point in her chapter on equality and discrimination in sport.[16]
Although the above examples have focused on maternity leave, the need and rights of employees to paternity leave[17] should not be forgotten. In terms of UK law, employees are entitled to up to two weeks statutory paternity leave at either £151.20 a week or 90% of their average weekly earnings (whichever is lower).[18] In some sports, such as football, it seems few players have exercised their paternity rights, possibly for fear that it may negatively impact on their career,. However, other sports, such as baseball and cricket, are making progress in ensuring that paternity rights are recognised. England men’s cricket captain, Joe Root, recently stated that he was prepared to miss the first test of the three-Test series against West Indies in July in order to be present for the birth of his child[19]. It is therefore clear that players’ rights around the birth of a child is an issue that cannot be ignored.
Achieving equal pay for female employees has been a struggle from the time when women first entered the workplace. Sport is no different, although progress is being made, for example, by the WNBA, the Spanish Football Association and the Football Federation Australia. Further, sports like tennis and surfing now pay equal prize money[20]. Noteworthy is the fact that, had the inaugural Hundred’s tournament gone ahead, men’s and women’s winners would have receive equal prize money[21].
Interest in women’s sport has seen a significant increase in recent years, with TV audiences and spectator numbers at matches increasing steadily. However, in general, female athletes are still paid significantly less than their male counterparts.
Two examples that have recently made headline news across the globe because of equal pay rights are set out below.
With the benefits of being an employee come certain obligations, one of which is the requirement to follow the lawful and reasonable instructions of an employer. An example of such instruction could relate to an employee’s use of social media.
Israel Folau recently caused a stir as a result of his comments on social media[28]. All players employed by Rugby Australia (RA) must abide by RA’s Player Code of Conduct (the Code). The Code requires players to “to treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability”. On 10 April 2019, Folau wrote on Instagram that hell awaits “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”. This was despite his being told the previous year that RA would not tolerate homophobic comments being made by its players.
As a result of Folau’s comments on 10 April 2019, RA decided to terminate his contract of employment. Folau challenged this decision by seeking a full Code of Conduct Committee Hearing. The panel found Folau guilty of a high-level breach of the Code and upheld the dismissal. Folau consequently launched court proceedings against RA[29] on the basis that his contract was unlawfully ended due to his Christian beliefs. Folau contends that he is the victim of religious discrimination and that his case is about free speech.
This would have been a landmark decision in Australia as there is no definitive ruling yet on the apparent conflict between an employer’s right to control employees’ social media comments and the protections of religious or political freedom found in discrimination law.
Unfortunately, this important question remains unresolved since the Folau case settled[30] in December 2019.
As public figures, athletes have the power to highlight issues such as discrimination and make much needed changes. However, athletes need to be aware that where their employer gives them a lawful and reasonable instruction, even if it is one they do not personally agree with, not complying with such an instruction could have severe consequences and may result in their dismissal. Whether such dismissal is justified would however depend on the facts of each case.[31]
Many athletes may take the view that making a stand for what they believe in warrants the risk of being disciplined for such conduct. However, although this approach is laudable, athletes should know the risks that come with taking such an approach.
Megan Rapinoe, co-captain of the US women’s national football team, is a good example of an athlete who is taking a stand for what she believes is right, but doing so in a way that is not contrary to her obligations to her employer. In 2016, Rapinoe “took a knee” during the national anthem to show support for and solidarity with Colin Kaepernick, whose decision to kneel during the national anthem[32] had started a series of demonstrations by NFL players to bring attention to social injustice and police brutality. Rapinoe explained her decision to kneel[33] in an essay she wrote for The Players’ Tribune later that year:
“I haven’t experienced over-policing, racial profiling, police brutality or the sight of a family member’s body lying dead in the street. But I cannot stand idly by while there are people in this country who have had to deal with that kind of heartache.
There is no perfect way to protest. I know that nothing I do will take away the pain of those families. But I feel in my heart it is right to continue to kneel during the national anthem, and I will do whatever I can to be part of the solution.”
In response to Rapinoe kneeling the USSF passed a rule[34] requiring that “All persons representing a Federation national team shall stand respectfully during the playing of national anthems at any event in which the Federation is represented”. Rapinoe has since opted to stand during the national anthem, but to not sing or place her hand over her heart.[35]
In this way Rapinoe is highlighting important issues but doing so in a manner that is not breaching USSF rules. This has allowed Rapinoe to continue to play the sport she loves whilst advocating for change.
Significantly, on 9 June 2020, the USSF’s board of directors voted to repeal its policy[36] requiring national team players to stand during the national anthem. The USSF admitted that the policy was “wrong and detracted from the important message of Black Lives Matter”.
On the other end of the scale, the actions of Jadon Sancho, a player for the football club Borussia Dortmund, to highlight a cause he believes in, resulted in a yellow card as his actions contravened the IFAB Laws of the Game (the Laws).
After scoring a goal, Sancho took off his jersey to reveal a T-shirt with the demand: “Justice for George Floyd” written on it. As a result of this he was given a yellow card[37]. The German Football Federation (DFB) have stood behind this decision and have stated that the yellow card had nothing to do with the message, but rather, it was issued because Sancho broke the Laws.
The specific law[38] provides that “A player who removes his jersey after scoring a goal will be cautioned for unsporting behaviour” and the consequence for such action is an automatic yellow card. A player is deemed to have removed his jersey if the jersey has been pulled over the player’s head, or if his head has been covered by the jersey.
It must be noted that Sancho’s teammate, Achraf Hakimi, also displayed the same message on a T-shirt after scoring in the same game, but was not booked[39] because he did not lift his jersey over his head.
However, the DFB also considered whether to sanction[40] Sancho and Hakimi, as well as Weston McKennie and Marcus Thuram[41], for making a political statement on-field. The DFB’s reasoning was based on the fact that having “any political, religious or personal slogans, statements or images” on equipment is contrary to the Laws and the game itself should remain free of political statements or messages of any kind.
On 3 June 2020, the DFB announced that it would not be sanctioning[42] Sancho, Hakimi, McKennie and Thuram for showing on-field support and solidarity for George Floyd and confirmed that further demonstrations and actions would be free from sanctioning. The DFB also issued a statement of support for all of the antiracism messages.
Inevitably there will be friction between the convictions of athletes and the laws that govern their behaviour, however it is heartening to see that at least in this situation the players and the DFB are in accord. For further reading on this case, please see this article by Maximilian Wegge and David Menz.[43]
Bianca Balmelli
14 July 2020
[1] Carmichael v National Power [2000] IRLR 43 (HL).
[2] Autoclenz Ltd v Belcher and others [2011] IRLR 820 (SC).
[3] Andrew Smith “Sport and Employment Law – the year in review 2018/19”, lawinsport.com, 29 May 2019. Also see: Section 230(3) of the Employment Rights Act, 1996; Section 83(2) of the Equality Act, 2010; and Bates van Winkelhof v Clyde & Co LLP and another [2014] UKSC 32 (SC).
[4] Andrew Smith “Sport and Employment Law – the year in review 2018/19”, lawinsport.com, 29 May 2019.
[5] It must be noted that because assessing whether a claimant is an employee or not is a very fact specific exercise, each case will turn on its own facts. However, where the facts of two cases are similar, a decision in one case is likely to be of significant persuasive value in the other case.
[6] Varnish v British Cycling Federation t/a British Cycling UKEAT/0022/20/LA.
[7] Libby Payne, Caroline Mathews “The employment status and rights of funded athletes in the UK”, lawinsport.com, 13 November 2018.
[8] Section 166 of the Social Security Contributions and Benefits Act, 1992; Regulation 6 of the Statutory Maternity Pay (General) Regulations 1986/1960; and https://www.gov.uk/maternity-pay-leave/pay.
[9] Jonathan Rennie, Nicky Beach “Win-win: a progressive approach to maternity & paternity rights for professional athletes”, lawinsport.com, 01 April 2020.
[10] Ariel Reck “Argentine Football Association and Player’s Union reach agreement on pregnancy rights for players”, lawinsport.com, 15 November 2019.
[11] “WNBA And WNBPA Reach Tentative Agreement On Groundbreaking Eight-Year Collective Bargaining Agreement”, wnba.com, 14 January 2020.
[12] Alice Tidey “Spain’s top women footballers go on strike over pay dispute”, euronews, 16 November 2019.
[13] Lucia Riera Bosqued & Luke Hurst “Spain’s female footballers secure historic pay deal”, euronews, 22 February 2020.
[14] Jordan Valinsky, CNN Business “Nike further expands protections for pregnant athletes after fierce backlash”, CNN Business, 19 August 2019.
[15] Jenna West “Athletes Speak Out Against Nike’s Lack of Maternity Leave Protection, Other Companies Make Change: Nike wants women to dream big—until they get pregnant”, Sports Illustrated, 24 May 2019.
[16] Lydia Banerjee “Sport, equality & discrimination – the year in review 2019/20”, lawinsport.com, 10 July 2020.
[17] Jonathan Rennie, Nicky Beach “Win-win: a progressive approach to maternity & paternity rights for professional athletes”, lawinsport.com, 01 April 2020.
[18] Section 171ZE of the Social Security Contributions and Benefits Act, 1992; Regulation 2 of the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) Regulations 2002/2818.
[19] “Joe Root would miss England Test match in order to attend birth of second child”, Sky Sports, 3 June 2020.
[20] “The Fight for Equal Pay in Women’s Sports”, Women’s Sports Foundation, 2 April 2019.
[21] “The Hundred: Men’s and women’s winners to receive equal prize money”, BBC Sport, 4 March 2020.
[22] John Didulica, Kathryn Gill “Gender equality in football – how we negotiated equal rights for the Matildas & Socceroos”, lawinsport.com, 13 December 2019.
[23] Darren Walton “Matildas on same pay scale as Socceroos”, Australian Associated Press, 6 November 2019.
[24] Mark Galli “Wondergoal: Australian women score in securing equal pay”, Lexology, 29 November 2019.
[25] John Didulica, Kathryn Gill “‘Gender equality in football – how we negotiated equal rights for the Matildas & Socceroos”, LawInSport.com, 13 December 2019.
[26] ESPN staff “USWNT lawsuit versus U.S. Soccer explained: Defining the pay gaps, what’s at stake for both sides”, ESPN, 3 June 2020.
[27] US Soccer Players “Statement about the USWNT 2017-2021 CBA” ussoccerplayers.com, 12 February 2020.
[28] Jack Anderson “Israel Folau and Rugby Australia’s Code of Conduct hearing – the likely legal arguments”, lawinsport.com, 29 April 2019.
[29] BBC “Israel Folau: Sacked player sues Rugby Australia over anti-gay row”, BBC, 1 August 2019.
[30] “Israel Folau reaches settlement with Rugby Australia”, BBC, 4 December 2019.
[31] In the UK, employees are required to comply with lawful and reasonable instruction given by their employers. Where such instructions are not complied with this may amount to misconduct and may justify the employee’s dismissal.
[32] Marissa Payne “U.S. soccer star Megan Rapinoe joins Colin Kaepernick in kneeling during national anthem”, The Washington Post, 5 September 2019.
[33] Megan Rapinoe “Why I am Kneeling”, The Players’ Tribune, 6 October 2016.
[34] Jeff Carlisle “U.S. Soccer’s policy requiring players stand for national anthem still in place”, ESPN, 26 September 2017.
[35] Henry Bushnell “Why USWNT star Megan Rapinoe doesn’t sing the national anthem”, Yahoo Sports, 13 Jun 2019.
[36] Jeff Carlisle “U.S. Soccer board votes to repeal stand-for-anthem policy”, ESPN, 11 June 2020.
[37] “Dortmund’s Jadon Sancho dedicates goal to George Floyd”, ESPN, 31 May 2020.
[38] “Clarification of Law 12: Yellow Card for removal of jersey”, FIFA.com, 22 June 2004.
[39] “Players demanding justice for George Floyd should not attract regular sanctions – FIFA”, ESPN, 2 June 2020.
[40] “Why the DFB control body is reviewing “Justice for George” messages”, DFB, 1 June 2020.
[41] Weston McKennie wore an armband with the slogan “Justice for George” and Marcus Thuram went down on his left knee and looked to the ground after his first goal.
[42] Avi Creditor “German Federation Shows Empathy, Logic in Not Sanctioning Players for George Floyd Tributes”, Sports Illustrated, 3 June 2020.
[43] Maximilian Wegge, David Menz, “Political protest in football – is it time for a (legal) debate? Analysing FIFA’s regulations and recent actions in the Bundesliga”, lawinsport.com, 26 June 2020.
