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Employment Law Worldview

Premier League email scandal misses out on penalties

Posted in Discrimination, Sex Discrimination

The recent revelations as to the content of some of Premier League CEO Richard Scudamore’s emails have generated a feeding frenzy for the English media.  He has admitted and sort of apologised for engaging in email correspondence with a lawyer who advises the Premier League which, at best, was inappropriate and leadenly sexist in its content.  

It was confirmed last month that the Premier League had decided not to take any disciplinary action against him. That decision was apparently taken by representatives of 17 current Premier League Clubs.  A cynic might say that they may well have had their own commercial priorities, based on the largest-ever TV rights deal brokered by Mr Scudamore in their favour, firmly in mind. Whether or not that is correct, the Clubs were possibly more appropriate investigators than the Premier League’s Audit & Remuneration Committee, made up of 4 individuals who were apparently appointed to that committee by Mr Scudamore himself (perhaps they did consult the ACAS Code just in time). In any event, the outcome has divided the public and the media into three camps: those who say that (i) it is no big deal; (ii) he should swing for it; and (iii) whatever the merits of the position, nothing is going to happen anyway due to Mr Scudamore’s very effective negotiations with the television companies.  But who is right?  

I found myself engaged in a Twitter discussion with Philippe Auclair, a well-respected French football journalist based in England, on this subject. We disagreed on the very notion that Mr Scudamore should be facing any investigation at all. Mr Auclair’s argument was that the emails were ‘private’ and as such should not be accessed at all. I tend to believe that is an opinion borne out of French law (which is very strict on privacy and access to employee emails), and so not something that (at least in the court of public opinion) holds much sway in the UK.    

Many people are surprised that no action has been taken against Mr Scudamore given that equality and diversity issues are far more in the public eye now than ever before, especially when it comes to professional sport.  Is it too much to expect those whom we entrust to be the custodians of our sport, expressly including women’s sport, to refrain from such behaviour?  Any woman involved in football as a player, coach or Premier League employee can be justifiably dismayed by the attitudes espoused by arguably the most important man in football in England.  

It is not suggested in this post that the inappropriate emails warranted his dismissal. His admission, apology, the fact that he clearly did not intend anyone else to see the messages, and his unblemished disciplinary record could all count in his favour. Yet there is a feeling that (even when set alongside commercial considerations) he has brought his employer into disrepute, and that there was an opportunity here for the Premier League to acknowledge its role in supporting and encouraging women’s participation in football (which it does), and the fact that this episode appears to run contrary to that aim (which it has failed to acknowledge).   After all, had Mr Scudamore used racist language as overt as his email about women, he would certainly have been heading for the early bath.  A really serious warning would not seem inappropriate “for the record”, particularly since the chances of his using such terminology again (and hence of its being triggered) would seem close to zero.   

We then have to decide what we would (hypothetically) be penalising Mr Scudamore for, both as a matter of law and to avoid mixed messages.  Starting at one end of the question, there had been no suggestion before this blew up that he had been in any way in default of his duties to women’s sport, so this becomes an issue of what he thinks rather than what he does about it, already quite dangerous ground on the civil liberties front.  So does he genuinely think of women in such adolescent and priapic terms or merely that it is funny to give the impression of doing so?  Although neither is really acceptable, does that not take us to the nub of the problem, that it is not what someone thinks which is the problem, but his being caught doing so.  If Mr Scudamore wants to use crude language in a private exchange with a close contact whom he knows will not be offended, who else’s business is that?  The real focus of disquiet in this case should therefore be not that a grown man might in private conversation use words better suited to a hormonal teenager but that he was foolish enough to do so on an email account to which a third party could gain access.  Mr Scudamore might say that in using a non-work account he had taken sufficient precaution against his exchanges being unearthed,  but as we have said before on this blog, nothing put online is lost forever except your privacy, dignity and re-employment prospects, so that is not really good enough.