Sporting rights

Posted Friday 22nd November 2019

There are few sports in the UK to have matched the success of British Cycling in recent years, be it at the Olympics, World Championships or the Tour de France. But the elite cycling body is also at the centre of an employment law case that could have huge ramifications for all athletes and sports bodies across the country.

The Employment Appeal Tribunal (EAT) is expected to rule shortly on a potentially landmark case brought by former World medal-winning track cyclist Jess Varnish against British Cycling, the national governing body of the sport.

Varnish was dropped from its prestigious World Class Programme prior to the 2016 Rio Olympics amid claims of bullying and discrimination at the hands of coaches.

She sought recourse in the Employment Tribunal, claiming unfair dismissal, direct sex discrimination, victimisation and unlawful detriment following whistleblowing, which are protections only afforded to employees or workers.

Varnish therefore had to prove she was an employee or worker of British Cycling before her discrimination claim could proceed.

Worker status

Currently, an athlete’s employment status – i.e. whether they are employees, workers, or self-employed, and thereby the degree of rights they have in areas such as dismissal, holidays and sick pay, for example – is determined on a case by case basis.

For athletes such as Varnish, who rely solely on the funding, training and management provided by their sporting national governing body (NGB) and government agency, UK Sport, their worker status, and thus their rights, is blurred.

In December 2018, the first-tier Employment Tribunal rejected Varnish’s argument that the high level of control that British Cycling and UK Sport had over her suggested there was an employment relationship, and ruled that her funding, provided by an Athlete Performance Award, was not remuneration but a grant akin to a university grant. In other words, she was neither an employee or a worker, and her case fell at the first bend.

Appealing decision

Perhaps spurred by a series of recent high-profile cases challenging worker status in other, less traditional industries, Varnish appealed the ruling. The matters of Uber, Addison Lee, Yodel, Pimlico Plumbers and Deliveroo have all sort clarity on worker status in the gig economy.

Should the EAT rule in Varnish’s favour, the implications for athletes and sporting governing bodies cannot be overstated. If established as employers, sports bodies will become liable for obligations such as holiday, sick pay, pension and unfair dismissal protection, in addition to significant tax implications.

UK Sport has previously claimed that, if Varnish succeeds and such athletes are deemed employees, then it will no longer be able to fund as many athletes as at present; currently, UK Sport gives tax-free awards of up to £28,000 per year to approximately 1,000 athletes.

And following a rash of recent criticisms against various sporting bodies for their ‘win-at-all-costs’ mentality, we could well see a surge in related employment claims brought by sports men and women.

Watch this space.

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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