While the football world debates the merits of the ten match ban imposed on Luis Suarez for his biting incident, yesterday the European Court of Justice handed down a decision which will have implications for homophobic comments made by soccer club owners, managers and possibly players.

 

Facts

The Asociatia ACCEPT decision involved consideration of the Equal Treatment Directive. Mr. Becali, the ‘patron’ of a Romanian football club (FC Steaua), had made a number of derogatory comments to a newspaper about potentially hiring a player who it was alleged was gay. The remarks included a statement that he would rather shut the club down than hire a gay player, and that there was no room for homosexuals in his family and that FC Steaua was his family. Subsequently to the remarks, the Club itself made no attempt to distance itself from these views. Asociatia AACCEPT, a LGBT organisation, took a case to the Romanian ‘National Council for Combating Discrimination’ (CNCD).

 

The CNCD decided that the relationship between Mr. Becali, who was a shareholder in the club, was not an employment relationship. Therefore, as his comments had no relationship to any decision by the club to hire/not hire an individual, for the purposes of the Equal Treatment Directive. The CNCD did find that his comments constituted harassment within the meaning of the Directive, and issued a warning against him. Asociatia ACCEPT obtained an Article 267 TFEU reference to the ECJ, claiming that the CNCD had erred in both its finding on the employment relationship and in the effectiveness of the sanction implemented.

 

Standing of Asociatia ACCEPT

As the case was taken by a representative group, rather than by an individual victim of discrimination, a procedural question was raised as to whether there needed to be an identifiable victim before the Directive could be invoked. The Court determined that so long as the national legislation allowed a case to be taken by a representative group, there was nothing in the Directive the prevented this.

 

Relationship between Mr. Becali and the Club

FC Steaua had argued that because Mr. Becali was not a person who in law could bind the club regarding employment decisions it made, comments by him could not form the basis of a presumption that the Club itself engaged in discriminatory hiring practices. This presumption is needed to prove the existence of discrimination under the Directive.

 

The Court determined that Mr. Becali’s comments could form the basis for a presumption of discrimination by the Club, as even though he had no legal role in recruitment policy, he presented himself as having a leading role within the club, he was perceived as having such a role by the media and the general public and the Club itself had made no attempt to distance itself from his comments.

 

 

Presumption of Discrimination

The Club further argued that the requirement under the Directive that if facts supporting a prima facia case of discrimination are established, the burden of proof shifts to the employer to rebut, was unfair. It stated that the only way it could rebut such an assumption was if it could actually prove that it had hired gay football players, and that this would involve a breach of the right to privacy of such players.

 

The ECJ rejected this argument, stating that in order to rebut the presumption of discrimination, it was merely necessary to establish, by any legal means necessary, that recruitment was determined by reasons unrelated to sexuality. Examples of such rebutting evidence would include express provisions in the hiring policy regarding non-discrimination. The Court also noted that a disavowal of the homophobic statements by the Club itself would have counted towards this.

 

Sanction

Finally, the ECJ made clear its dissatisfaction with the nature of the sanction imposed by the CNCD. It noted that a purely symbolic sanction would not represent a correct and effective implementation of the Directive. The ECJ accepted that just because the sanction did not involve a fine, this did not automatically make it purely symbolic. The appropriateness of the sanction was to be determined by the national court. However, the ECJ listed a whole range of factors that the national court must take into account, which leave little room for the national court to come to any conclusion other than the ‘warning’ issued to Mr. Becali was insufficient.

 

Consequences

Despite repeated efforts by national football associations, homophobia is still regarded as a major issue and the key factor in the complete absence of any ‘out’ professional football players. This case will hopefully give those closely involved in football clubs pause for thought before they make homophobic statements. Comments by the head of the Croatian Football Federation in 2010 that there was no room for homosexuals on the national team would be an even more obvious breach of the employment aspect of the Directive than that of Mr. Becali in Asociatia ACCEPT. Indeed, even fellow players could fall within the harassment category of the Directive, if they make comments which are not dealt with by their club or team, such as Italy’s Antonio Cassano in the 2012 World Cup, or even Suso’s banteresque remark about a fellow Liverpool player whitening his teeth, via Twitter. The ability of third party interest groups to take cases in similar circumstances (where permitted under national law), without the requirement of one individual having to publically declare themselves as a) gay and b) the victim of homophobic discrimination, widens the potential of the Directive. The fact that the sanctions imposed have to reflect the seriousness of the discrimination will hopefully lead to the Directive being applied in a way that it will hit the bank accounts of clubs, teams and players where they engage in bigotry.

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Written by Roderic O’Gorman

Roderic O’Gorman is a lecturer in the School of Law & Government in DCU. Prior to this, he worked as a lecturer and course director in Griffith College Dublin. A graduate of Trinity College and the London School of Economics, Roderic’s PhD was entitled, ‘Social Rights, the Marshallian Model and Union Citizenship’. His research interests lie in the area of Irish and EU public law, with a focus on social & economic rights and environmental law & policy. Roderic is also Chairperson of the Green Party.You can contact Roderic at roderic.ogorman[at]dcu.ie or (01) 700 6136