France Telecom: lessons for UK employers following 'institutional harassment' ruling
Out-Law Analysis | 03 Sep 2019 | 12:17 pm | 8 min. read
The focus given to posts from 'The Gay Footballer' on Twitter recently serves to highlight the ongoing challenges facing the lesbian, gay or bisexual (LGB) community in the world of professional sport, and in particular football.
Stonewall said that seven in 10 football fans who have attended a match say they have heard or witnessed homophobia on the terraces, while 60% of fans believe anti-gay abuse from fans dissuades gay professional players from coming out.
Football clubs that show leadership on addressing homophobia and broader issues around diversity and inclusion too will help deliver benefits for their clubs, players and supporters alike.
There is very little data on the number of LGBT people in society. Research conducted in 2017 by the UK's Office for National Statistics (ONS) and published in early 2019 suggests that the proportion of the UK population identifying as LGB is 2%, although the ONS has estimated that this figure rises to 4.2% for people aged 16 to 24 years and other estimates place the overall proportion significantly higher. A further 4% preferred not to say. Other sources suggest that the proportion of LGBT in the UK is somewhere between 5% and 7%.
Given the statistical picture, it seems improbable that there are no gay or bi footballers playing currently in the professional football leagues in the UK. Yet, as it stands, there are no active male Premier League footballers, or indeed top flight footballers in Scotland either, who openly identify as LGB.
Justin Fashanu came out while still playing the game in 1990. He later took his own life. Former German internationalist Thomas Hitzlsperger, who played football in the Premier League in England, is perhaps the most high-profile player to reveal he is gay, though his announcement came following his retirement from the sport. Andy Brennan recently became Australia's only openly-gay male professional footballer.
There have been openly LGBT athletes in other sports for years, for instance Welsh rugby player Gareth Thomas, Olympic diver Tom Daley as well as Beth Mead in women’s professional football. These athletes were supported and celebrated for their openness. It raises the question as to why things are so different in men's top-flight football in England.
In a career that is so driven by reputation and having the approval of fans, many players may fear that 'coming out' would have a negative or damaging impact on their career, including in respect of sponsorship and other commercial opportunities.
Other fears may concern how existing relationships with fans and team-mates could be impacted, and whether top clubs would pursue their employment, while the potential for abuse both on and off the pitch from supporters and social media trolls is a further likely factor.
You only have to look at the recent attention gained by the 'The Gay Footballer' Twitter account for an example of the intense focus that will be given to footballers 'coming out' and the potential for them to attract abuse.
The Twitter account was purportedly operated by a footballer currently playing in the English Championship, the second-tier of men's professional football in England. For a period earlier this summer, posts from the account indicated that the player was preparing to 'come out' publicly as gay and that they had held constructive talks with senior officials at their club about doing so. The posts prompted many positive responses, but also attracted criticism and outright abuse. The account operator deleted the account, after posting a message which read: 'I thought I was stronger. I was wrong.'
The BBC reported that it had had direct exchanges with the account operator through Twitter's direct message function and that they had explained their fears about 'coming out' and that there were other players in the game in a similar position to them.
Whether the 'The Gay Footballer' account should have gained as much attention as it did in 2019 is a cause for thought, but football's problem with homophobia appears to be one of inherent historical cultural making. This has something that has been formally recognised.
A parliamentary committee, in a report on homophobia in sport published in 2017, described football as having "a problematic history with homophobia", citing homophobic chanting at games and, in one case, the distribution of homophobic leaflets outside of a stadium, as evidence of the issue.
The committee suggested the change in attitudes within society towards homosexuality since the 1980s had not been reflected in the football world, and expressed its "great concern" at the fact that there were "no prominent football players in this country who are openly gay".
"We warmly support and encourage the first player, or group of players, who feel they are comfortable and confident enough to come out as we believe that they will make a valuable and significant contribution to football," the committee said.
The committee's report warned that the fear of being ostracised could lower participation in sport by LGB youth and in turn impact on their mental and physical health and well-being, as well as rob sport of emerging talent.
"It appears that young players and athletes sometimes feel that they have to make the active choice between either coming out or continuing to participate in their chosen sport," the report said. "As a result, players and athletes either drop out of sport together or, as has been the case with some professional sportspeople, they wait until after retirement to come out."
The committee's findings are supported by research conducted by the charity Stonewall.
According to Stonewall, 17% of LGBT people have experienced and 49% witnessed homophobia or transphobia in sport, and 66% of LGBT people believe that problems with homophobia and transphobia in sport act as a barrier to LGBT people taking part.
In relation to football specifically, Stonewall said that seven in 10 football fans who have attended a match say they have heard or witnessed homophobia on the terraces, while 60% of fans believe anti-gay abuse from fans dissuades gay professional players from coming out.
The committee called on sport governing bodies to "extend their work in schools explicitly to address the problem of homophobia", and said sports clubs should clamp down on the use of homophobic language. It further called on football clubs to dish out stiffer punishments in cases where there has been homophobic abuse and urged the Football Association to play a leading role in embracing training for all staff on the topic of homophobia.
The committee further revealed that its inquiry had found "a general perception that coming out would affect corporate sponsorship adversely". It said that while there was little evidence to support this, and even that Tom Daley had seen an increase in sponsorship earnings since coming out, there remain fears about how coming out could lead to a loss of income.
The committee said "corporate sponsors have a duty to assure sportspeople that they will not lose their sponsorship as a direct result of coming out" and cited action undertaken by leading sports brands to support gay athletes.
"Adidas has amended its endorsement contracts to ensure against cancellations or changes should an athlete come out as gay, lesbian, bisexual or transgender," the report said. "Nike also cancelled its endorsement contract with the Filipino boxer Manny Pacquiao, and stopped selling all Pacquiao-branded merchandise following derogatory comments he made about homosexuality in a television interview."
The fear of an overall adverse impact on commercial opportunities may be misplaced and there is a role for football agents to ensure their players will continue to thrive.
Football clubs need to create an environment where players can bring their full authentic selves to work, not least for player performance. Carrying the weight of hiding their sexual orientation takes up a lot of energy. This is energy that could be directed into performing in their role and optimising their full playing potential. Coaches often talk about marginal gains and finding an extra few percent.
Football clubs, as employers, have a duty of care to their employees and must take all reasonable steps to ensure their health, safety and wellbeing. Footballers that feel forced to suppress their true selves can take a hit to their confidence and mental health.
Young, aspiring athletes could be discouraged from pursuing a career in football irrespective of their talent out of fear that they cannot be their full selves whilst doing so.
There are benefits too for the clubs themselves. Players that are helped to be free to be their true selves will be happy in their work, contributing to a more positive workplace environment that is geared towards maximising performance on the pitch. Such an environment could also help with player recruitment and retention: areas where clubs are always looking for a competitive edge.
Clubs also stand to attract more fans to attend their matches if the atmosphere they foster is truly diverse, inclusive and family friendly, with associated commercial benefits to this.
A club culture that supports diversity and inclusion will help attract more fans from the LGBT community to attend matches, and help enhance other supporters' enjoyment of the match day experience, where it leads to eradication of homophobic language and culture.
When the FA banned homophobic chanting at games and ruled that they would fine players and fans if they were caught using homophobic language in 2007 this began to pave the way for clubs in terms of eradicating homophobic behaviour within football.
Despite this, homophobic language and culture is still prevalent in football today, and there is therefore an atmosphere at matches and in online discourse concerning the game that can be unwelcoming to those from the LGBT community and is without question part of the reason many LGBT players do not feel comfortable in being open with their sexuality whilst playing.
To revolutionise the inherent culture within the football industry, there needs to be leadership from senior members within the clubs, including coaches, and support from agents and the PFA. These individuals do not need to identify as LGBT themselves, just be committed allies. Their leadership should ensure that communication of the club’s commitment to diverse and inclusive values goes right across the board and trickles down to all levels within the club.
There also needs to be role models within the club, perhaps in the form of respected club players who stand up and openly speak about the stigma attached to the LGBT community within professional football and how it is not acceptable and needs to be changed. Sending out the right message to fans and other players is imperative. The ‘Rainbow Laces’ campaign, led by the charity Stonewall in partnership with the Premier League in 2018, is a good example of initiatives that can be player-led. The campaign has also been supported by professional clubs in Scotland. This type of action can assist in addressing the negative fan/match cultures.
Clubs should also explore the creation of internal LGBT and ally networks within their organisation that can bring players and other employees together and which encourages open dialogue around LGBT issues, facilitates education of employees and enables stigmas to be broken.
There is a further role for clubs in the sharing of best practices with one another to ensure that all clubs respect the values of diversity and inclusion, and to ensure that recruitment practices are conducive to a diverse workforce.
Clubs should seek external advice and undertake a review of their existing policies and practices to best understand how to affect real change in culture and behaviours.
Joe McMorrow and Rubymarie Rice are experts in employment law in sport at Pinsent Masons, the law firm behind Out-Law. Brook Graham is a Pinsent Masons diversity and inclusion consultancy which has a proven track record of helping organisations around the world drive meaningful change.
France Telecom: lessons for UK employers following 'institutional harassment' ruling