This article first appeared on SportBusiness.com.
As businesses operating in sport become more professional, the expectations and standards of judgment for managers and directors become greater. Patricia Leonard, a specialist in sport and employment law, looks at some of the current issues senior sports executives are expected to deal with and the sanctions should they fail to meet the requisite standards.
As athletes’ online media presence (pictured) gathers importance, a savviness of social media is becoming an increasing requirement for senior sports executives. A sports manager/director within an organisation now needs to ensure a good public image is maintained, and athletes know what is expected of them when they communicate online. Courts are more willing to hold sporting organisations vicariously liable for defamatory or discriminatory comments made online by their sporting employees.
Managers and directors also need to be alive to the image being presented by their club/organisation offline. In the 2013 case of Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminării, the ECJ (European Court of Justice) held that homophobic comments made in public by a person strongly associated with the football club – a main shareholder – were capable of establishing a ‘prima facie case of discrimination’ regarding the club’s recruitment processes, even though that individual was not legally capable of binding the club in recruitment matters. Therefore, should a public figure affiliated with a club engage in discriminatory conduct, the sports manager or director will need to distance the club and ensure it is not seen to be condoning such behaviour.
Employees and applicants benefit from protection against discrimination under the Equality Act 2010, and this is no different in the sporting sphere – managers and directors must confirm that all aspects of recruitment are compliant and fair. The terms of employment can also require delicate managing; the refusal of Newcastle United’s Papiss Cisse, for instance, to wear a kit sponsored by Wonga, raised the issue of religious discrimination which might have led to a successful claim.
More recently, sponsors and their partners have also relied on morality clauses. Directors and managers will, therefore, need to consider the permissible extent of contractual protection for sponsors in the event of misbehaviour of athletes or teams, and will be tasked with managing any fallout. If an athlete or team does engage in misbehaviour, the way it is managed may prevent a sponsor engaging the morality clause. For example, after David Warner’s punch on Joe Root following the England-Australia Champions Trophy cricket match in June 2013, Cricket Australia took clear and immediate action against Warner, who then publicly apologised in the media. As a result, Cricket Australia’s sponsors stayed loyal.
Furthermore, all businesses operating in sport must be aware of and safeguard against dealing with the proceeds of crime. A case in point is the former owner of Portsmouth Football Club, Vladimir Antonov, who was forced to quit the club amidst money-laundering accusations. All organisations subject to the Money Laundering Regulations 2007 must allocate overall responsibility for anti-money laundering systems and controls to a director or senior manager; this responsibility is onerous and includes record-keeping, internal reporting and staff training. A breach of the regulations can result in prison and/or heavy fines.
Finally, in terms of general wrongdoing, the case of FIFA whistleblower Phaedra Al-Majid – who made allegations of corruption in relation to Qatar’s successful 2022 World Cup bid – highlights that there are instances where an employee within a sporting organisation may need support to report suspect wrongdoing at work.
The UK whistleblowing legislation was introduced by the Public Interest Disclosure Act 1998 – managers and directors will need to ensure they have a robust whistleblowing policy in place, which is implemented properly. Otherwise, the organisation may find itself liable if an employee is subjected to unlawful detriments as a consequence of their whistleblowing.
Patricia Leonard is a barrister at 7BR Chambers specialising in sports and employment law.