Proving and punishing discriminatory practices at Sports Clubs

As noted by Nick De Marco in a recent post, many sports – in particular football – are currently wrestling with issues of racism, and discrimination by supporters, players or the clubs themselves. Allegations of discriminatory practices at Sport Clubs often rely upon inference or circumstantial evidence. On 25 April 2013, the Court of Justice of the European Union (“CJEU”) gave judgment in a case in which the inferences were sought to be drawn from conduct not of the Club but of a third party associated with the Club. Its decision in Case C-81/12 Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminării is a cautionary tale to Clubs to ensure that their stance is clear in relation to these issues. Ravi Mehta considers the decision.

The case concerned statements by Gigi Becali, a former shareholder and leading figure at SC Fotbal Club Steaua București SA (”FC Steaua”). Mr Becali has been the subject of press reports concerning his personal views prior to this case and FC Steaua has been accused of racism before, including having been fined by the Romanian football authorities for the conduct of its supporters in 2005. On 8 February 2010, Mr Becali had sold his shares in the Club although he was (according to the facts which the national court had set out for the CJEU) holding himself out as the Club’s “banker” and in the public’s mind was still influential at the Club. On 13 February 2010, Mr Becali had given an interview related to the possible transfer to the Club of a professional footballer, X, and the player’s alleged sexual orientation, stating critical views. These included stating that “[n]ot even if [he] had to close [FC Steaua] down would [he] accept a homosexual on the team” and that “[r]ather than having a homosexual on the side it would be better to have a junior player”. The Club was alleged not to have distanced itself from these statements, and its lawyer was said to have stated that the presence of a homosexual on the team “would create tensions in the team and among spectators”. ACCEPT, a non-governmental organisation which promotes lesbian, gay, bi-sexual and transsexual rights, lodged a complaint against Mr Becali and the Club on the basis of a breach of the principle of equal treatment in recruitment matters. A number of questions were asked by the Romanian court, namely: (i) could statements of a person who had no legal relationship to the Club be relied upon to infer discriminatory conduct on its behalf? (ii) what was the burden of proof and (iii) what sanctions did the national court need to have at its disposal?

The CJEU held:

     (i).            The fact that a person who is not legally capable of binding an employer in recruitment, but who claims and appears in public to play an important role in its management, had made statements suggesting the existence of a homophobic recruitment policy by the employer is a relevant factor from which to infer discrimination (at paras. [49] & [53]);

   (ii).            However, the club would not need to prove that persons of a particular sexual orientation have been recruited in the past in order to satisfy the burden of proof, “since such a requirement is indeed apt, in certain circumstances, to interfere with the right to privacy” (para. [57]); and

 (iii).            The Directive’s requirement of an “effective, proportionate and dissuasive” remedy demanded “a real and effective legal protection of the rights deriving from [the Directive]”. To satisfy this test, “the severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely dissuasive effect […] while respecting the general principle of proportionality” (at [63]). A purely symbolic sanction would not be enough (at [64]) and a national court “may also take account, where appropriate, of any repeat offences of the defendant concerned” (at [67]). The Court suggested that a rule such as the Romanian law in question, which provided only for the imposition of non-pecuniary sanctions such as a warning, appeared to breach the Directive’s requirement.

The first and third of these conclusions are particularly important for Clubs going forward. In light of the series of incidents where groups of supporters have been accused of discriminatory conduct (such as following the petition from Zenit St Petersburg fans against signing black or homosexual players late last year), the CJEU’s reasoning would appear to suggest that such conduct could also be relied upon in cases alleging discriminatory practices against a Club. Indeed it took a broad view of the relevant facts for assessing a Club’s conduct, noting that “the perception of the public or social groups concerned may be relevant for the overall assessment of the statements at issue” (at [51]). The Court stressed that “the fact that []an employer might not have clearly distanced itself from [discriminatory conduct] is a factor which the court hearing the case may take into account in the context of an overall appraisal of the facts” (at [50]). Clubs must be vigilant, as was the case of Zenit St Petersburg, to distance themselves from the conduct of those with whom they are associated – be they supporters or investors/shareholders.

Moreover, in the context of employment relationships the CJEU has added some support to the calls (noted by Nick De Marco) for more stringent penalties to be imposed where allegations of discriminatory practices are proven.