Athletes receiving coaching or training
Athletes are not considered employees, so legal protection is very limited. The lack of whistleblowing rights and the wish to not damage career prospects, often means many remain silent instead of raising concerns. This is backed up by the ‘Duty of Care in Sport Review’ led by Baroness Grey-Thompson, which in 2017 found sports persons did not know how to raise concerns about inappropriate conduct and feared being considered as troublemakers. The review recommended that sports organisations should have independent and clear whistleblowing processes in order to give a voice to all those engaged in sports.
Employment law rights?
An athlete’s employment status depends on their personal circumstances. In professional team sports, such as football and rugby, the squad members are usually treated as employees of their teams. While individual sports such as tennis and golf, professional athletes are typically treated as self-employed. The difference often depends on the level of control an athlete has over things like their training, competition schedule and commercial activities.
Athletes do have limited rights around discrimination and harassment and can bring a claim to the County Court.
Case study: Varnish v British Cycling Federation (t/a British Cycling)
Varnish was a British Track Cyclist and brought a claim in the employment tribunal arguing that funded athletes should be treated as employees or workers of either or both British Cycling and UK Sport.
Varnish entered into agreements with British Cycling where British Cycling agreed to develop a performance plan and a package of services and benefits and Varnish agreed comply with the performance plan, train as required, enter competitions and not to engage in any personal commercial work without the written consent of British Cycling.
In 2016 Varnish’s agreement plan was terminated on performance grounds and she proceeded to bring claims for unfair dismissal and sex discrimination.
The EAT decided that Varnish was not an employee because she was not personally performing work provided by British Cycling. Rather, she was personally performing a commitment to train in the hope of achieving success. This was not consistent with a contract of employment.
There have many high profile scandals across all British sports which have revealed emotional abuse, bullying, neglect and sexual harassment. Olympian Nile Wilson described gymnasts being treated like “pieces of meat” and Becky and Ellie Downie said abusive behaviour in the sport had become “completely normalised”. Cyclists, such as Jess Varnish, have alleged sexism and disability discrimination at British Cycling, and others concerns have been raised in swimming and canoeing.
Sports governing bodies are required to inform UK Sport when allegations are made but UK Sport cannot investigate as it is only an investment agency. In February 2020, UK Sport announced an independent review into UK Athletics following the numbers of scandals at the sport’s governing body.
In March 2021, a review of abuse in British gymnastics received nearly 400 submissions and an interim report by Anne Whyte QC revealed that on average 300 complaints a year were made to British Gymnastics between 2015-2020. In July 2020 British Gymnastics announced an independent inquiry led by Jane Mulcahy QC to identify how to remove barriers to speaking up.
In an industry with high-profile examples of abuse and misconduct, athletes should be able to feel comfortable in speaking up and the assurances of legal protections for whistleblowing.
Although not employees or workers, athletes are ‘controlled’ and research shows they are fearful to speak up for fear of jeopardising their careers. If a sports person or athlete is victimised for raising whistleblowing concerns they are at risk of losing their funding. Without funding, it may not be possible to compete at the very highest level, or achieve their full potential. This can be catastrophic for an athlete’s career.
Protect’s bill will provide clear legal rights for those in the sports sector to raise wrongdoing.
Whistleblowing affects us all. Protect’s campaign Let’s Fix UK Whistleblowing Law needs your support. Click the banner below to write to your local MP.