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Sports Q&A - Athlete Unions: What do I need to know?

02 December 2019

Athlete Unions - What do I need to know?

In 2019, athletes’ voices have increasingly been expressed and very much listened to. The Australian women’s football team successfully campaigned for equal pay with their male counterparts. The USA’s FIFA Women's World Cup winning stars have continued their legal battle for parity. Elsewhere, high profile competitors within athletics are leading protests against how their sport is being run and members of Team GB are contesting the restrictive application of the International Olympic Committee (IOC)'s "Rule 40".

What is a trade union and how do you establish one in the UK?

The Trade Union and Labour Relations (Consolidation) Act 1992 governs trade unions in the UK. It defines a trade union in broad terms as an organisation of workers whose principal purposes include the regulation of relations between workers and employers.

Any group of workers may form an organisation that falls within this definition. However, in order to maximise the rights afforded to a trade union then the organisation should also register with the Certification Officer, the UK’s statutory regulator of trade unions.

Can any athlete form or join a UK trade union?

UK law protects individuals who wish to form or join a trade union. It also protects athletes to wish not to join a trade union. This reflects the UK giving effect to Article 11 of the European Convention on Human Rights, which guarantees individuals “the right to form and to join trade unions for the protection of his interests”, as interpreted by the European Court of Human Rights.

Must a UK employer recognise a trade union?

An employer may choose voluntarily to recognise a trade union. If it does so then the purposes for which the union will be recognised will be determined by the parties’ agreement. These could include negotiating terms and conditions, collectively raising grievances and being informed and consulted. Any recognised union also automatically enjoys a limited number of statutory rights, such as to be consulted during collective redundancies on certain health and safety matters.

If an employer refuses to recognise a union then the union may nevertheless still be able to obtain limited recognition by way of an application to the Central Arbitration Committee, the UK’s specialist judicial body for industrial relations. This is a lengthy and complicated process. The factors that the CAC would take into account include the level of union membership in the proposed bargaining unit, the level of support for the union and the presence of any other unions. The CAC will also only grant recognition for the union to bargain workers’ pay, hours and holiday.

What barriers can athletes face securing recognition for their union in the UK?

Any athlete can join a union and derive membership benefits from that independent of whether the union is recognised. However, an employer can only recognise a union in respect of a “worker” (a term which includes employees). As we have noted in the context of Deliveroo riders, this means that a union cannot be recognised in respect of persons that are not in an “employment relationship”.

The recent decision of an Employment Tribunal that the cyclist Jess Varnish could not bring claims against British Cycling as she was not a “worker” highlights the significance of this. Her claims failed as she was an athlete in receipt of a financial ‘award’ from UK Sport that involved a commitment to train as part of British Cycling’s World Class Programme as opposed to any obligation to work. This helps explain why UK unions are most prevalent in sports with unambiguous employment relationships, such as football and rugby.

Are there high profile examples of athletes exerting influence through their unions?

Athletes’ union activism has had most influence outside of the UK. For example, in Australia, the Professional Footballers’ Association has recently negotiated a CBA with the Football Federation Australia to substantially reduce the earnings gap between with the men’s and women’s teams. In the United States, powerful unions have been behind collective agreements affecting NFL and NBA teams. For example, the start of the 2011 NBA season was delayed by 2 months as the National Basketball Players Association and team owners resolved disputes over the division of revenue, the structure of the salary cap and the so-called “luxury tax”.

What other options do athletes have?

Athletes can form pressure groups to act on their behalf at any time albeit without the legal protections enjoyed by UK trade unions, such as immunity to call on its members to go on strike.

For example, in athletics, upcoming changes to the Diamond League schedule will hit the earnings potential of some athletes. This has led to many Olympic champions to call for the creation of an athletes’ “union”. However, as these athletes are generally self-employed then such a body may legally amount to little more than a pressure group in terms of its relationship with World Athletics (the international federation governing athletics and the Diamond League).

Athletes can also often rely on athlete commissions and other bodies to advance their interests. This reflects many sports recognising the need to give athletes a voice. For example, World Athletics allows athletes to hold two voting positions on its 26 person council and many sports in the UK provide for an 'athlete representative' to sit on their boards of directors. Bodies such as the IOC’s Athletes’ Commission and Global Athlete have also led to the dilution of the impact of the IOC’s ‘Rule 40’ restricting Olympians’ ability to engage in advertising for personal sponsors during the Games.

Finally, athletes can also campaign for legislative reform. California’s ‘Fair Pay to Play Act’ (coming into effect in 2023) will allow college athletes in California to earn money from their names, images and likenesses. The rights of college athletes had earlier been promoted by stars such as LeBron James and the legislation’s passage highlights an effective alternative to unionisation.

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