FA right to disregard Capello's nationality, says lawyer

Some commentators and footballing insiders had called for the FA to appoint an English coach, but Simon Horsfield, an employment specialist with Pinsent Masons, the law firm behind OUT-LAW.COM, said that an appointment based on nationality would have risked a legal challenge.

"Selecting an employee in preference to another purely because he is English is potentially discriminatory under the Race Relations Act 1976 and is at odds with EU legislation," said Horsfield. "Whilst the candidate's ability to perform the role may well relate back to his nationality at some point, this must not be the determining factor."

Horsfield said that nationality can be considered in some cases. "For example, the FA may be able to terminate Fabio Capello's contract in the event that he is unable to communicate properly with his players. However, any condition that indirectly relates to an employee's race or nationality must be capable of being justified in the eyes of the law before it can be used as a reason to terminate."

Capello has faced some opposition in the press, and even from footballing figures, based on the fact that he is not English.

"We have no complaints with Capello getting the job in one respect. His CV stands up against any coach in the world, so from that point of view you can't argue with it," said Frank Clark, chairman of the League Managers' Association. "But it is the FA's development programme that all our young coaches go through, and there are a lot of young lads out there who have spent a lot of time and money going through that system and coming out with all the qualifications, which the FA claim are as good as any qualifications in the world."

"Clark's quote suggests that the LMA are happy with Capello's ability to do the job but that they may have an issue with the fact that he is Italian or, more specifically, not English," said Horsfield. "This is potentially discriminatory and it would create severe difficulties for the FA if they adopted this as a recruitment policy, as seems to be advocated by the LMA."

Capello is not the first non-English manager of the team. Sven Goran Erikksson managed the team between 2001 and 2006. He is not fondly remembered by England fans.

Horsfield said that employers must make sure that they hire employees on the appropriate grounds. "Recruiters need to focus on the competencies required to carry out the role rather than the nationality, sex, disability, sexual orientation, religion or age of their desired candidate," he said. "This appears to be the approach adopted by the FA in appointing Fabio Capello and they would be well advised to continue this in the future."