First written for and published by LawInSport.Click here to view the original article.
Many commentators called for the resignation/dismissal/disciplining of Richard Scudamore, Chief Executive of the Premier League. The condemnation heaped upon him following the Sunday Mirror’s revelation of allegedly discriminatory emails sent by him has been near universal, to the extent that David Cameron has suggested a cabinet minister guilty of similar conduct would have been sacked.
Yet, Scudamore avoided any formal sanction. This is causing its own controversy, with the Premier League and Football Association being accused of inertia, not least by a member of the latter’s own Inclusion Advisory Board.
Was the case against Scudamore so compelling that the only possible consequence was some form of disciplinary action, whether by the Premier League or FA, or is the position less clear cut?
One has to consider his position from three perspectives: Scudamore as an employee of the Premier League, as a director of the company behind the Premier League (The Football Association Premier League Limited (“FAPLL”)) and as part of his wider responsibilities towards the FA as the national governing body for football in England.
As an employee of the Premier League, Scudamore was subject to certain express and implied obligations. For these purposes, the most significant would be the implied obligation that he would not act in a manner which was calculated or likely to destroy or seriously damage the relationship of trust and confidence between himself and his employer. The reference to “calculatedorlikely” in this context is important. Whether a breach is made out depends upon the effect of the conduct and not necessarily the intent that lay behind it.
How does respect for equality dovetail into the implied obligation? Equality is so ingrained into the modern employment relationship that an act of discrimination or a disregard for equality generally, properly made out, would be a compelling basis for finding a breach of the implied term. It is for this reason that the majority of disciplinary procedures (in this author’s experience at least) prescribe discrimination as an example of gross misconduct for which summary dismissal will be considered.
The Premier League itself seeks to imbue equality into its ethos. The Premier League Handbook for 2013-2014 contains the Premier League Rules. Rule J4 states the following:
Each Club shall adopt and each Club, Manager, Official, Player and Academy Player shall observe, comply with and act in accordance with the Anti-Discrimination Policy set out in Appendix 2 to these Rules
Although the rule clearly applies to member Clubs, the Premier League as an organisation would no doubt endorse this statement of principle through fear of being accused of hypocrisy.
The Premier League’s position is put beyond doubt by the Anti-Discrimination Policy, which is contained within Appendix 2. Clause 1 of the policy states that the Premier League:
…shares with the Football Association a commitment to confront and eliminate discrimination, whether by reason of sex, sexual orientation, race, nationality, ethnic origin, colour, religion or disability.
Clause 4 of the policy sets out an arguably stronger statement:
The League will not tolerate sexual or racially-based harassment or other discriminatory behaviour, whether physical or verbal, and the Board will ensure that such behaviour is met with appropriate disciplinary action whenever it occurs.
Did Scudamore’s emails cross the threshold of ‘discriminatory behaviour’ such that the Premier League was obliged by its own policy to take ‘appropriate disciplinary action’?
As any discrimination lawyer will tell you, context is key, and only tentative observations can be made in the absence of the original emails and the explanations of the protagonists unvarnished by the media coverage.
Scudamore did not dispute the reported content of the offending emails. The most damaging from the perspective of the Premier League’s stated aim of being an ambassador for equality in football appears to be his comment on the female capacity for “irrationality”. The remark is especially controversial when one recalls the furore surrounding Richard Keys’ and Andy Gray’s comments aimed towards assistant referee Sian Massey in 2011.
Scudamore made an unreserved apology for the emails and the contrition he has shown has generally been regarded as genuine. It has certainly been sufficient to cause FA board member Heather Rabbatts to row back from heroriginal position that Scudamore should consider his position.
He also contended that the emails were of a private nature and were not intended for consumption beyond the sender and recipient. Should this matter? There is a possible argument that the emails amounted to unlawful discriminatory behaviour nonetheless. The majority of the reported emails contained generic sexist jokes and as such no individual person could be said to have been treated less favourably. However, in one email Scudamore urged the recipient to keep a colleague (nicknamed Edna) “off your shaft”. If ‘Edna’ was an employee of the Premier League (which is not clear), it is difficult to see how this would amount to anything other than unlawful discrimination.
Further, the mere discovery of the emails by an employee may amount to unlawful harassment for the purposes of the Equality Act 2010 if the effect of the discovery was to create an intimidating, hostile, degrading, humiliating or offensive environment for them. Although the position is less clear cut where, as here, the offending conduct is not specifically directed towards the employee complaining of harassment.
As a director of FAPLL, Scudamore owed the company a number of further duties, now largely enshrined within the Companies Act 2006. Section 172 of the Act requires a director of a company to act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole. This includes having regard to the need to foster the company’s business relationships with suppliers, customers and others. In the context of the Premier League, ‘others’ is arguably apt to include commercial sponsors and the FA.
The FAPLL is a peculiar company in the sense that its members are limited to the Clubs who occupy the top tier of English football from time to time. When a Club is relegated from the Premier League, on departure it is obliged to assign its share to a Club newly promoted from the Championship. The current members of the FAPLL showed no appetite to take action against Scudamore for any breach of his directorial duties. The remedy for such a breach is the absolute entitlement of the company’s members and of no one else.
On the contrary, it is the members of FAPLL who appear to have taken the decision not to discipline Scudamore for his conduct. Seventeen members of the Premier League met in central London on 19 May 2014 to decide that no further action should be taken.This has caused further controversy. A Chief Executive of an organisation is normally answerable to the board. Since the FAPLL’s board comprises only two members, Scudamore as Chief executive and Peter McCormick as acting Chairman, should it not have been the Chairman who decided on what action, if any, should have been taken?
The position may not be so straightforward. If the intention was to remove Scudamore from the Premier League entirely then this would have required both (a) his dismissal as an employee and (b) his removal as a director of FAPPL. The latter can only be achieved through his resignation as a director or through his removal by resolution passed by its members at a general meeting. It follows that the Chairman could not by himself remove Scudamore from the organisation. In contrast, a resolution to remove Scudamore as Chief Executive from the board would in all likelihood serve to terminate his employment at the same time, either through some express provision in the Service Agreement (which commonly feature such clauses) or because his employment was so bound up with the office of Chief Executive that it could not continue (and therefore amounted to an express termination) if the office of Chief Executive was removed from him. On this analysis, getting the Clubs to decide Scudamore’s future with the Premier League was the only available option.
What the above does not explain, however, is the Chairman’s silence on disciplinary action short of dismissal. If this was contemplated, it would not require the input of FAPPL’s members at all. It being a matter connected purely with the employment relationship, it would have been a decision for the Chairman alone.
In a statement released by FA Chairman Greg Dyke on 20 May 2014, the FA confirmed that it too willnot be taking any action against Scudamore.
This is ostensibly for two reasons. The first is that:
Mr Scudamore was not an employee of The Football Association and, as such, we had no position in terms of employment policy or taking disciplinary action.
So far, so obvious. If the FA was not Scudamore’s employer than it cannot have disciplined him as an employee. But what about action taken in the FA’s capacity as the national governing body for football in England? As to this, the statement released went on to say that:
In terms of wider FA disciplinary action, it was advised that The FA does not as a matter of policy consider private communications sent with a legitimate expectation of privacy to amount to professional misconduct. The FA has applied this policy on an ongoing basis and in relation to numerous other cases.
The statement did not say where this advice came from or what the ‘numerous other cases’ were that this policy was applied to. But was the advice correct?
The FA Handbook for 2013-2014, which contains the Rules and Regulations of the Association, also includes an Equality Policy. That policy sets out the following statements of principle:
The aim of this policy is to ensure that everyone is treated fairly and with respect and that The FA is equally accessible to all. All Participants should abide and adhere to this Policy and to the requirements of the Equality Act 2010.
The FA’s commitment is to promote inclusion and to confront and eliminate discrimination whether by reason of age, gender, gender reassignment, sexual orientation, marital status or civil partnership, race, nationality, ethnic origin, colour, religion or belief, ability or disability, pregnancy and maternity and to encourage equal opportunities.
The FA commits itself to the immediate investigation of any allegation, when it is brought to their attention, of discrimination and where such is found to be the case, The FA will require that the practice stop and impose sanctions as appropriate.
Clearly, the FA commits itself to tackling discrimination in all forms with the imposition of sanctions where appropriate following an investigation.
Section E of the Rules of the Association set out the standards of conduct that the FA requires of ‘Participants’. A Participant is defined by Rule A2 as:
…an Affiliated Association, Authorised Agent, Competition, Club, Club Official, Licensed Agent, Player, Official, Match Official, Management Committee Member, Member or Employee of an affiliated Club and all such persons who are from time to time participating in any activity sanctioned either directly or indirectly by The Association.
The Premier League is a competition sanctioned by the FA and so it must follow that Scudamore is a person participating in an activity so sanctioned. He is therefore a ‘Participant’.
Rules E3 and E4 are the main anti-discrimination provisions. Rule E3 (1) and (2) provides that:
(1) A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.
(2) A breach of Rule E3(1) is an “Aggravated Breach” where it includes a reference to any one or more of the following :- ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability.
Rule E4 provides that:
A Participant shall not carry out any act of discrimination by reason of ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation, disability, age, pregnancy, maternity, marital status or civil partnership, unless otherwise permitted both by law and The Rules or regulations of The Association.
Scudamore’s critics would argue that he has committed an aggravated breach of Rule E3 or, at the very least, a breach of Rule E4.
On their face, what the above rules do not appear to provide is any warrant for the FA not to take action on the ground that the conduct in question formed part of a private communication. In accordance with the Rules, the only determining issue is whether the communication is discriminatory. As discussed above, a private communication may, in some circumstances, be discriminatory nonetheless. One would have thought that, at the very least, an investigation would be required to ascertain whether the communication was discriminatory or not.
Although the controversy surrounding Richard Scudamore has not rumbled on to any great extent but, from a legal perspective at least, a number of unanswered questions remain.