26 June 2019

Employee status in sport

Are athletes employees, or are they self-employed, with only ‘worker’ status? We look at why this matters and the dilemmas it creates, focusing on the case brought by cyclist Jessica Varnish against the British Cycling Federation.

 

What status does an athlete have at present?

An athlete’s employment status will be determined on a case by case basis, but in team sports such as football and rugby, squad members are often considered to be employees of their clubs. This is because clubs will have a large degree of control over their players’ day to day activities, such as training and competition schedules; degree of control is a key indicator of employee status.

Alternatively, in individual sports such as tennis or skiing, athletes are able to determine their own training and competition schedule. In turn, individual athletes are typically considered to be self-employed as most will run their own sporting affairs as a business.

 

What employment rights and protections to athletes have?

If athletes are funded but do not have ‘employee’ status, they will not have rights such as unfair dismissal protection if they are removed from a funding programme. Similarly, if athletes only have ‘worker’ status, they will be without protection in instances of whistle blowing on the unlawful practices of governing bodies.

Employment rights and protections afforded to an athlete will often hinge on the level of funding they receive. For example, if an athlete has low funding or consequently loses their funding, it can render them over-reliant on the governing body for that particular sport.

Athletes will however have protection against discrimination. They will have the option to bring a claim in the County Court for discrimination on the basis that the relevant governing body for that sport is a ‘service provider’ for the purposes of the Equality Act 2010.

 

Miss J Varnish v The British Cycling Federation case

This case considered two issues, primarily:

• Whether Jessica Varnish (as a funded athlete) was an ‘employee’ or a ‘worker’ of British Cycling or UK Sport, as defined in the Employment Rights Act 1996 (ERA 1996) and the Equality Act 2010 (EqA 2010)
• Which of Varnish’s substantive claims, if any, did the tribunal have jurisdiction to determine at final hearing.

Varnish’s claim for unfair dismissal could only proceed if the tribunal was satisfied that she was an employee of one or both of the British Cycling Federation or UK Sport. Her claims for whistleblowing, sex discrimination and victimisation would be permitted to proceed if the tribunal was satisfied that she had either worker or employee status.

 

The tribunal’s decision regarding employee status

The employment tribunal found that there was no ‘mutuality of obligation between the parties’, a minimum requirement for an employee relationship to exist. There was no obligation on the part of either British Cycling or UK Sport to offer work to Varnish, nor any corresponding obligation on Varnish to accept such work in exchange for payment.

 

The tribunal’s decision regarding worker status

The tribunal decided that Varnish had failed to persuade them that she satisfied the conditions required for worker status, the main reason for this decision being:

• There was not a minimum amount of work that Varnish was obliged to personally perform; instead her role was simply to train in the hope she would be selected for competitions.
• The ‘Athlete Agreement’ in place is a contract where services are being provided to Varnish rather than vice versa.
• No wages were paid to Varnish by British Cycling.

 

Conclusion

The employee status of sports professionals remains to be analysed on a case by case basis. Hallmarks of employee status include mutuality of obligations but also remuneration arrangements which can become complex in the case of training costs for athletes. The Varnish case demonstrates the difficulties athletes face in proving there is an employment relationship between them and their sports club.

For more information on this, please contact Daniel De Saulles on 01905 744 865 or at ddesaulles@hcrlaw.com

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About the Author
Daniel De Saulles, Solicitor
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