Football Clubs in Scotland hoping to attract Islamic players need to think carefully about the arrangements they put in place – or face potential disputes and discrimination proceedings.
Employment lawyer Fraser Auld, of leading law firm Lindsays, said today that the situation at Newcastle United – where highly-rated striker Papiss Cisse is in dispute with club after refusing to wear the logo of club sponsors Wonga on religious grounds – could become more common due to the growing numbers of Islamic players in British football.
From just one solitary Muslim player 20 years ago to around 40 today in the Premier League in England, Scotland too has seen a growing number of players who follow the Islamic faith.
Cisse’s high profile case has attracted significant comment – but as yet little has been made of the fact that Cisse is an employee of Newcastle United and as such is covered by discrimination law. That means he can make a claim against them while still in employment.
He has refused to wear the Club strip as it bears the logo of payday loan company Wonga – which also sponsors Hearts in Scotland. To Muslims, usury – or money-lending for profit – is a sin. As a result of his stance, he was not taken on the Club’s pre-season tour to Portugal and is training alone. Discussions are continuing between Club and Player.
Fraser Auld said: “I’m sure this will happen again and maybe not just in football, it is applicable to all sports where sportsmen and women are required to wear sponsored kit.
“The Cisse situation is really one of indirect discrimination - that is where an employer applies a provision, criteria or practice to all employees that has the effect of putting a certain protected group at a disadvantage. “
To ensure they do not run into difficulties, he added, Clubs (and other employers) must be able to show that in asking individuals to wear or do something that might offend their religious beliefs they are pursuing a legitimate aim or business need, and that their actions in doing so are proportionate.
Indirect religious or belief discrimination occurs where:
- Employer applies to employee a provision, criterion or practice - in this case Newcastle say that players must wear the club strip with sponsor.
- The Employee has a particular religion or belief (or lack of religion or belief) - Cisse is Muslim and believes money lending with interest is a sin.
- The Employer applies (or would apply) that provision, criteria or practice to persons not of the same religion or belief as the Employee - All the players at Newcastle must wear the club strip with sponsor, regardless of religion.
- This action puts or would put persons of the employee’s religion or belief (or lack of religion or belief) at a particular disadvantage when compared to other persons – Being made to wear the strip with this sponsor’s logo potentially puts Muslim’s at a disadvantage compared to other persons who are not Muslim i.e. non muslims have no religion or belief that would stop them wearing the strip that is sponsored by Wonga whereas a Muslim does.
- The action puts or would put the employee at that disadvantage - Papiss Cisse is put to the above disadvantage because he says he can’t wear the shirt on grounds of his religious belief.
- The Employer cannot justify the provision, criteria or practice by showing it to be a proportionate means of achieving a legitimate aim - This is the key point here, Newcastle could escape liability (even if their action is found to be discriminatory) provided they can establish it is a proportionate means of achieving a legitimate
Fraser added: “ The question focuses in reality around this last point – can Newcastle justify what they are asking as a proportionate means of achieving a legitimate aim.
“Establishing a legitimate aim is usually the easier half of the test although it must correspond to a real business need. In Newcastle’s case, there is clearly a legitimate aim in requiring all players to wear the club strip with sponsor - to run a commercially viable football club and sponsorship is a key part of that aim. Newcastle have a sponsorship contract with Wonga, said to be worth some £8 million per annum. The contract will be negotiated on the basis that all players wear branded training kit and match day strips. If we get into a situation where some players will and some players won’t wear the branded kit then Newcastle and football clubs in general become less attractive to sponsors.
“Newcastle, in my opinion will be able to demonstrate that they have a legitimate aim in requiring all players to wear the branded kit, the more difficult part of the test is whether Newcastle can show that the requirement is proportionate means of achieving their aim of commercial viability.”
To demonstrate that it is proportionate Newcastle must demonstrate that the measures taken were "reasonably necessary" in order to achieve the legitimate aim. The actions will not be considered reasonably necessary if they could have used less discriminatory means to achieve the same objective. Essentially - the balance between the discriminatory effects of the employer's actions, and the reasonable needs of the employer.
Fraser added: “This is the most difficult part to take a view on as neither the club nor player have made any statement in the media about discussions they have had to try and resolve the dispute or whether there are any less discriminatory means of achieving their aim of commercial viability. There has been some suggestion in the media that Papiss Cisse could wear an unbranded strip or a strip with a charity logo on it – there has been no comment from the club or Wonga on this.”
He said that in two well-publicised recent cases which went all the way through the legal system to the European Court of Justice earlier this year, employees had claimed against employers on the grounds that dress codes or restrictions which prohibited the wearing of jewellery (in both cases a crucifix) were discriminatory on religious grounds. The two women were a British Airways flight stewardess and a nurse for Royal Devon & Exeter NHS Foundation Trust.
Both cases came down to the legitimate aim and proportionality (as in Papiss Cisse’s case). Interestingly, the ECJ held that BA’s justification (protecting the corporate image) whilst a legitimate aim was not proportionate when weighed with the disadvantage to the stewardess and her right to her religious view. On the other hand, the hospital’s justification (to protect the health and safety of nurses and patients) was found to be proportionate.
He added: “Applying this reasoning to the Cisse case, Newcastle’s argument is essentially one of corporate image and the fact they can get greater sponsorship revenue if all employees wear the branded kit. That does not mean that Newcastle’s position will be disproportionate but it is clear following the earlier cases that courts/tribunals will give greater weight to the detrimental effect of a provision, criteria or practice on an employee where the employers justification is purely financially driven.
“Separately, there has been comment in the media about Cisse being photographed in a Newcastle casino – pointing out that gambling is also a sin in Islam and he doesn’t seem to have a problem with that so why the big issue with money lending at interest?
While this makes Cisse‘s position look inconsistent and may undermine his assertion of religion, I’m not so sure that it has any bearing on the current dispute or the legal test of indirect discrimination. Belief is subjective, so may vary from person to person within the same religion. This is quite important I think in relation to the gambling point – I don’t know what Cisse’s views on gambling and usury are but it is quite possible that he feels strongly about usury and has a more moderate view on gambling. Whether or not he goes to the casino occasionally or every week is irrelevant – we’re not dealing with gambling here.
“Where Cisse is on more difficult ground is in relation to the strips he has worn previously i.e. Newcastle were sponsored by Virgin Money. He may argue his faith has grown stronger in recent months, or Cisse may consider Virgin Money and Wonga differently due to the huge difference in the interest rates charged – if that is the case however then his is really a moral objection as opposed to a religious objection.”
