This week, the Professional Footballers' Association (“PFA”) issued a six point action plan to tackle racism in English football, including a version of American football’s so-called "Rooney Rule".
This rule has nothing to do with Wayne and Coleen, but instead relates to a measure established for the NFL in the United States to combat the under-representation of black and ethnic minority candidates employed in coaching roles. The Rooney Rule essentially requires NFL teams to consider at least one black or ethnic minority candidate for certain positions.
The proposed introduction of a similar rule in English football is not surprising given the lack of diversity when it comes to coaches and managers in the English football leagues. However, the PFA’s proposal has raised an inevitable question: is the rule lawful from a UK perspective?
The short answer is “quite possibly not”. It will depend on the specific terms of the rule to be implemented and the manner in which it is enforced. At the very least, it is easy to imagine that the introduction of the Rooney Rule here may give rise to an increase in discrimination claims.
Existing UK law gives employers limited scope to take “positive action” to support disadvantaged or underrepresented candidates. For example, if two equally qualified individuals are going for the same role, a prospective employer can treat a person with a specified protected characteristic (such as race) more favourably than another.
But it is unclear how this could work in the context of English football. How can you effectively determine whether two candidates are equally qualified? Can you determine the question with reference to the number of coaching badges held? Or is it a more subtle question of experience and track-record?
If a well-qualified white candidate is overlooked for a role, but a less experienced black candidate is interviewed or recruited, there is an increased risk that the white coach will argue that they have been unlawfully discriminated against.