CJEU case shows potential to establish retirement age for professional footballers, says expert

Out-Law Analysis | 14 Dec 2016 | 2:33 pm | 1 min. read

FOCUS: A recent judgment by the Court of Justice of the European Union (CJEU) may assist sports clubs attempting to specify a low contractual retirement age - but employers must remain alert to the potential for challenge to upper age limits on age discrimination grounds.

While the case, which related to the appointment of police officers, has obvious relevance for those preparing contracts for sports professionals, clearly the objectives of a sports club are different to those of a police authority.

Employment contracts in the sports sector often require athletes to retire by a certain age. For instance, it is not uncommon to see a retirement age of 35 years old in contracts for professional footballers. In the recent case, the Basque Police and Emergency Services were able to rely on a genuine occupational requirement for an upper age limit of 35 for new recruits.

Before relying on a similar genuine occupational requirement, sports clubs must give thought to establishing the essential objective of the employer, and whether this is legitimate and proportionate. In the absence of such a requirement, indirect discrimination claims are a possibility so an analysis of the potential defences to that claim - including whether the treatment can be objectively justified – would also be beneficial.

The case

The Basque Police and Emergency Services sought applications from potential officers but set an upper age limit of 35 years old. This was challenged on the grounds of age discrimination.

The relevant EU directive provides that a difference in treatment will not amount to discrimination where it is because of a "genuine and determining occupational requirement", provided that the objective is legitimate and the requirement is proportionate.

Among other reasons, the maximum age was based on the role being physically demanding and one where physical force might be required.

The police authority was able to successfully establish that the age restriction was there to ensure the operational capacity and proper functioning of the police service. Additionally, the age restriction did not go further than was necessary. Where a genuine occupational requirement is established, there is no discrimination, and no need to establish that the treatment is justified. 

Had the employer been unable to establish a genuine occupational requirement, the court would have gone on to determine whether there was an objective justification for the age restriction in order to decide whether or not it was discriminatory. Age discrimination is unique in that direct discrimination can be objectively justified.    

Joe McMorrow is an employment law expert at Pinsent Masons, the law firm behind Out-Law.com.