A new field of play? Athletes are turning to the employment tribunal to assert their rights

Athletes are bringing claims to assert their employment rights in the English employment tribunals. Two recent cases before the Employment Appeal Tribunal (the EAT) show a newfound willingness of sportspeople to pursue these claims. Clubs and federations also need to be alive to the issues.

Athletes have rights, too
“…[The Club’s] position was that although the Claimant was an employee he was not entitled to holiday as professional basketball players did not take holiday. Unfortunately for the Respondent this was not the legal position.”

So said the Employment Tribunal in a case brought by ex-professional basketball player Will Hall against British Basketball League club, the London Lions.

The judge’s finding neatly encapsulates what might be a common misconception amongst sports teams and federations. Sportspeople who represent clubs often have employment rights, just like any other working person. However, non-team athletes, like Jess Varnish, a decorated ex GB track cyclist, may fall outside the law’s protection.

The decisions in the Hall and Varnish cases are not necessarily remarkable because of the legal aspects of their cases, but because they show a growing willingness of athletes to assert, or attempt to assert, their statutory employment law rights before the employment tribunals.

The unvarnished reality

Jess Varnish was an elite track cyclist, who participated in the coveted Olympic Podium Programme for Team GB’s most promising athletes. She has won an array of World, European and Commonwealth medals.

When Varnish’s track cycling career faltered, her funding was withdrawn by UK Sport. She made serious allegations of sex discrimination and unfair dismissal against her governing body, British Cycling. But to succeed in those claims (and to even have them heard by the employment tribunal), Varnish first had to prove that British Cycling (or UK Sport) employed her (rather than the federation simply setting out the framework, through a series of contracts, under which she would be entitled to certain support and financial and non-financial benefits).

Varnish’s claim followed the well-trodden path of many of the recent “gig economy” cases which the English employment tribunals (and courts across the world) have grappled with over the last few years; the question was whether Varnish was a worker or employee with various employment law rights, or an independent contractor, with none.

The Employment Tribunal found that Varnish was neither an employee nor a worker of British Cycling or UK Sport under English law. It was important that Varnish was not paid for the work she had completed (e.g. her results or past performance), but was given a grant based on her future potential. The contractual framework in place simply reflected the common aim of her winning medals. Because there was no “wage/work bargain” between Varnish and British Cycling, she was not an employee or worker, and therefore the Employment Tribunal would not go on to decide any of the remaining issues (including the serious allegations that a British Cycling coach had used sexist and discriminatory language toward her). Varnish appealed, but the EAT agreed that the Employment Tribunal had not made any legal errors in its original decision.

Varnish’s case highlights the lonely and precarious reality which many professional athletes, particularly in non-team sports, face. When performance dips, or they are no longer supported by their federation or funders, the game is often up. Unlike employees in other walks of life, there is no protection from unfair dismissal, and no chance to retain the safety net of a salary or wage whilst the parties try to help the individual perform to the standard expected.

It’s Hall in the contract

Will Hall, on the other hand, was a professional basketball player, who had represented England at youth level and had played for a number of top-tier clubs in England and Spain. In contrast to Varnish, it was accepted that he was an employee of his club, the London Lions. Hall’s employment contract ran for a fixed term from September 2017 until the last game of the 2017/18 season, and could only be terminated by the club prior to that date in limited circumstances (none of which applied at the time).

In January 2018, midway through the season, the club proposed to reduce Hall’s pay by over 10%. When the player said that he was unable to accept such a reduction in pay, the club, without any warning or notice, stopped paying his wages. In response, Hall resigned and brought claims in the Employment Tribunal for constructive dismissal and other breaches of employment law (including non-payment of holiday pay).

The club’s ambivalence to its employment law obligations was telling. The club accepted in the Employment Tribunal that “[t]he area of employment rights… was not an area [the club] had great knowledge of…”; a view reflected in the club’s position that basketball players are not entitled to holiday, as other workers are. Hall went on to succeed in all of his claims against the club before both the Employment Tribunal and the EAT. Ignorance of the (employment) law is no defence, as the club found out to its detriment.

A new field of play?

The courts are no strangers to disputes involving sports stars. However, those cases are usually commercial in nature. The Varnish and Hall cases are interesting, because they are examples of athletes seeking to rely on basic employment law protections. But why did they bring these claims?

In both cases, the athletes did not have big sponsorship deals to fall back on once their careers ended. The only recourse they had to protect their financial positions was to sue their employer (in Hall’s case), or find a potential employer to sue (in Varnish’s).

Varnish said she was also motivated by a desire to rebalance power between elite athletes and federations, commenting ahead of her appeal:

I want to give athletes an opportunity to hold to account employees of governing bodies, who they interact with on a daily basis, and have significant control over their careers and opportunities.

…I hope this appeal will be the first step towards affecting change, and bring about a fairer, more modern high performance system in the UK where athlete welfare is not just a soundbite, but something that we all believe in.

It is also telling that both Varnish and Hall brought their claims at the end of their careers. Would they have done so if they were young professionals just starting out in their careers? Hall told us:

“I had seen similar things happen to players that didn't have the time and support to challenge what was happening to them. Without alternative income, resources and knowledge of the rules, players just have to move onto the next contract, the next team and the next opportunity to continue their career - they don't have the security to do otherwise. I was fortunate in the sense that it happened to me when and where that it did - I had the support and the resources to challenge it and felt like I had to.”
Clubs and federations, take note

Breaches of employment law could have particularly severe consequences in other cases – especially where an athlete blows the whistle on misconduct or illegality, or is discriminated against or harassed unlawfully because of a protected characteristic (such as their sex, age, or race). In such cases, damages (including for career loss) can be uncapped, which might prove particularly expensive in the case of well-paid sports stars. The reputational cost, and management time, in defending litigation is also high.

These cases are therefore timely reminders that, whether they are paid £150 or £150,000 per week, athletes who are employees benefit from the full spectrum of English employment law rights, and clubs and federations need to take their duties seriously (just as any other employer would).

In particular, clubs which employ athletes need to make sure that they understand their employment law obligations. Both the financial and reputational risks of not doing so can be significant.

Likewise, governing bodies will need to appreciate the finer details of the Varnish decision. The EAT made clear that, with different facts, an employment tribunal could find that an athlete such as Varnish was employed by a federation such as British Cycling. Federations should consider their contractual arrangements with elite athletes to ensure that they are clear about what employment rights athletes have (if any), and to make sure that any contractual documentation reflects the reality of the situation. With Varnish having now opened the door, it might not be too long before other elite athletes take their chances in an employment tribunal by alleging that they are employees of their governing bodies or funders.

Linklaters acted pro bono for Mr Hall before the EAT. To read more about the case, see the post on our EmploymentLinks blog.

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