Part 1: The England and Wales Perspective

While sport can be a unifying force in society, illegal discrimination is a clear and present risk to sports clubs, governing bodies and their insurers who can face substantial claims for compensation from aggrieved participants, employees and spectators/visitors.

Duncan Brockway, a Partner in HF’s casualty team with extensive experience in defending discrimination claims, looks at why these claims arise and how they can be avoided, starting with the core legislation governing equality in England and Wales.

If you need advice or input on handling the sensitive issues surrounding discrimination, please contact HF via Duncan.Brockway@h-f.co.uk.

Also look out for Part 2, which looks at some of the major issues emerging in relation to discrimination in sport on a global basis.

 

The Equality Act 2010

In England and Wales, the key legislation in respect of discrimination is the Equality Act 2010 (“the Act”), which sets out 7 legally protected characteristics as follows:-

  • Age
  • Disability
  • Gender Reassignment
  • Marriage and Civil Partnership
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

All of these characteristics are protected although some forms of discrimination are better publicised and more prevalent in sport.

A person who can establish they have been discriminated against in respect of a protected characteristic can sue in the civil courts. The main remedies available are:

  • Damages – compensation, including for injuries to feelings
  • Injunction – a court order to do or not do something
  • Declaration – of breach of their rights

The Act applies to both “service providers” (Part 3) and Associations (Part 7), which catches at least some parties involved in sport although there are potentially significant gaps.

Consider a grassroots junior sports club formed as a company limited by guarantee (a common arrangement which gives the required formality to run the club without exposing those running it to excessive personal liability). Unless it can be shown to be a “service provider”, the Act may not apply directly. If the club is part of a County Football Association, the Association itself may owe the duties rather than the club. This in turn may influence the burden and cost of insurance for club and Association.

 

Types of discrimination

Direct discrimination – This happens where someone is treated less favourably because of a protected characteristic , for instance because they are a woman and / or they are deaf.

Indirect discrimination – This happens when a provision, criterion or practice (PCP) puts people with a particular relevant protected characteristic at a disadvantage, for instance a lack of level access to a changing room or a ban on headwear within a clubhouse. Where a PCP is found to be a proportionate way of achieving a legitimate aim (for example safety of participants) it will not amount to indirect discrimination.

Reasonable adjustments – There is also a specific duty to make reasonable adjustments for people with disabilities. While not an absolute duty, it is prospective. You must consider, say, the accessibility of your premises in advance of someone trying to access them, rather than waiting until they arrive and cannot get in.

 

The State of Play

Much of the discrimination complained of in sport relates to disability and / or sex. Parity of pay and prize money in men’s and women’s sport have improved in recent years although there is evidently much work to do.

While a BBC survey in 2021 found parity in most sports, it is not universal. One highly publicised example is that the prize money for the men’s football World Cup in 2022 was nearly 3 times higher than that for the women’s World Cup in 2023. FIFA has said it aims to equalise prize money across the men’s and women’s World Cups in 2026 and 2027.

Access to sport for people with disabilities remains variable, an issue tackled by (among others) Sport England, Level Playing Field and Scope. The UK Government’s National Disability Strategy, published in 2021, promises to widen participation in arts, culture and sport. Its Disability Action Plan, published in February 2024, mentions sport although largely in the context of a possible bid to host the Special Olympics World Summer Games. It remains to be seen whether the new Government will continue with these plans or implement their own strategies to improve disability access to sport.

 

What more can be done to avoid discrimination in sport?

Legislation

Whether in its current or future forms will play a significant part. Participants in sport have substantial rights under the Act and are increasingly asserting them in the civil Courts. There are, however, gaps in the legislation which need to be addressed, either by clarification in the Courts or by further legislation.

Governing Bodies / NGBs

The major NGBs have detailed policies concerning inclusion in place, which may be part of or sit alongside eligibility policies, constitutions, human rights policies and safeguarding policies. These policies will usually require those who are part of the NGB, as well as the governing body itself, to exercise their functions in such a way that does not unlawfully discriminate or infringe on human rights. The policies may also contain positive obligations, such as promoting equality and mitigating harm.

Whilst policies need to be tailored to the particular organisation and its members, the most effective tend to have the following characteristics:

  • accessible language and structure
  • accessible formats
  • easy to find
  • easy to navigate
  • include ‘off the shelf’ policies and notices which clubs and local associations can use
  • signpost other sources of information and help

The evolving landscape of discrimination protection in sports means it is necessary to regularly review existing practices and take proactive measures to ensure that policies and procedures continue to adhere to the required legal and industry standards. Training of staff will also need to be kept up to date.

Clubs / Associations

Inclusion can seem like a challenging issue, particularly in grassroots sport where resources and knowledge may be limited and authority can be difficult to assert.

Coaches and club officers should ensure they have the formality and authority provided by clear, detailed inclusion policies which they and any potential complainants can follow when issues arise. As noted above, any resources that are available from NGBs to create these policies and educate relevant staff or volunteers should be utilised. The consequences of failure to comply with a policy should be clearly set out and applied.

Everyone involved should be familiar with the policies and understand who is responsible for what. Information and training sessions, with examples of what compliance and non-compliance looks like, can be helpful to address any genuine gaps in knowledge.

Charities / Representative Groups

Charities such as Women in Sport, Kick it Out, Sporting Chance and others continue to play an important role in calling out discrimination and publicising it both directly through their own activities and via the media. While care is always needed when commenting on specific cases, particularly any which is (or could be) the subject of a Court case, any ongoing issues with discrimination, and the unfairness and harm it leaves in its wake, are only likely to be addressed if they remain firmly in the public consciousness.