So there I was, happily watching one of those television shows where journalists sit around a table and talk earnestly about football when suddenly off the conversational subs’ bench leaps a real employment law issue.
The reference was made by Henry Winter (Daily Telegraph Football Correspondent), who claimed that he receives emails on a regular basis from employment lawyers in the City telling him that Premier League clubs are flouting the law by discriminating against their older players. The debate relates to an apparently blanket rule at some of the top football clubs that once a player hits the magic age of 30 he will not be given anything more than 1- year-at-a-time extensions to his contract. One person on the show asked whether it would be acceptable in any other profession to have a policy whereby employees above a certain age are blatantly treated less favourably than their younger co-workers? The general consensus amongst the group was probably not, but “this is football” (i.e. not real life), and if the policy wasn’t committed to writing then the clubs would “no doubt get away with it”.
The Equality Act 2010 is pretty clear on this stuff. A ’30 and out’ policy is a clear example of direct discrimination; treating someone less favourably because of his age. However – maybe something the “employment lawyers in the City” neglected to point out to Mr Winter – direct age discrimination is unusual in that it can potentially be justified, and so lawful. The Act states that direct age discrimination can be justified if it is “a proportionate means of achieving a legitimate aim”. Whether an employer can meet the requirements for this ‘objective justification’ test generally depends on whether the policy can be considered to be appropriate and necessary, looking at the business needs.
Applying these tests, the offending clubs might fancy their chances of defending their approach. With the exception of Manchester United’s evergreen Ryan Giggs and Everton’s Sylvain Distin, it is the conventional wisdom that when a player reaches his thirties, he will not have the ‘legs’ to play as many games in a season and that he becomes more likely to pick up a career-threatening injury or at least to take longer to recover. Given vast player salaries (see Charlie Frost’s recent blog post), it is perhaps understandable that clubs are offering shorter contracts to players over a certain age, the legitimate aim being to mitigate their exposure should that player not make it through the season in one piece. What’s more, it is not a case of the clubs simply getting rid of players once they hit 30; instead there is a proportionate approach taken by treating each case on its merits. Put simply, if the player can demonstrate that he still have enough puff to play then he will be offered a new 1 year deal.
Compare this, however, with the supplying body for Premiership referees, Professional Game Match Officials Ltd. In 2010 the Sheffield Employment Tribunal ruled that PGMOL’s compulsory retirement from top-level matches at 48 was unlawful, as it could not justify that age either on medical/fitness grounds or by reference to common refereeing practice in other European countries. That was an absolute bar while the clubs merely impose a hurdle to be surmounted. Nonetheless, the fact remains that it is less favourable treatment and the likes of Giggs and Distin are the very reason why age-related assumptions and practices of this sort can never be said to be truly safe. Perhaps the reality (even in football) is that no terribly good reason is required not to renew a player contract at all and therefore that it would indeed take a brave player offered a 1-year deal to take legal action about not getting 3.
Jim Keogh Associate
Squire Sanders, Leeds
This article originally appeared on the Squire Sanders Employment Law Worldview blog. You can view the original by clicking here.