DEC-S2014-029

The Equality Tribunal

Equal Status Acts, 2000 to 2013

Equality Officer Decision

DEC-S2014-029

Jermaine Turner

-v-

Basketball Ireland

File Ref: ES/2012/0134

Date of Issue:30 December 2014

 Keywords: Equal Status Acts 2000-2013 – access to a service – race ground - Section 3 (1)(a) - Section 3(2)(h) - Section 5 (2)(f) - Section 6(1)

1. This complaint was referred to the Director of the Equality Tribunal on 26 September 2012 under the Equal Status Acts, 2000 – 2012 (hereinafter “the Acts”). In accordance with his powers under Section 75 of the Employment Equality Act, and under the Equal Status Acts, the Director delegated the complaint to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts. On 6 August 2014, my investigation commenced when the complaint was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 13 October 2014.

2. This dispute concerns a claim by the complainant that he is being discriminated against on the race ground in terms of section 3 (2) (h) of the Acts in relation to being prevented from having recognition as a Category 1 –­ Irish player and/or Category 1 – EU player despite the fact that he has attained Irish citizenship.

3. Summary of the Complainant’s case

3.1 The complainant is a professional basketball player and plays for Killester Basketball Club, a team which plays in the Irish Men’s Super League. He initially came to Ireland in 2003 as a professional basketball player and played for UCD Marian. The complainant who is originally from the United States of America, attained Irish citizenship on 14 June 2012 and is married to an Irish citizen and has two children. The complainant submits that the respondent is in breach of its own Code of Conduct, in that, it directly and/or indirectly discriminated against him on grounds of race in allowing a system of discriminatory categorisation of authorised players to operate within the Men’s Super League thereby preventing the complainant from being recognised as a Category 1 – Irish player and/or Category 1 – EU player. The complainant contends that as a consequence he is being prevented from playing on a weekly basis for his local basketball club.

3.2 The complainant maintains that he has been directly and/or indirectly discriminated against as an Irish and European citizen, by indirectly ascertaining the complainant’s nationality on the basis of duration of primary and/or second level schooling within Ireland and/or the European Union. The complainant submits that the respondent rejected the legal and actual nationality of the complainant without just cause or consideration. The complainant contends that he is being prevented from competing on a weekly basis as a result of regulation 4.5.2 of the Men’s Super League Competition Regulations which prevents more than one Category 2 player be on court at any one time during the game. The complainant further contends that the respondent changed its rules in 2012 with the sole purpose to allow a group of Lithuanians who play for a club named Dublin Inter, play in the Men’s Super League. The complainant maintains that in early August 2014, he wore the Irish jersey and played in Latvia on the European National Team. In that regard, the complainant states that when it suits the respondent, it will take his Irish passport into account but will not do so for the purposes of allowing him categorisation as a Category 1 player within Ireland.

3.3 The complainant submits that due to his US origin, he does not, nor can he ever meet the academic requirements imposed by the respondent to be considered a Category 1 - Irish player. The complainant states that the respondent is in violation of the complainant’s fundamental personal rights as enshrined in the Irish Constitution including Article 40.1. The complainant submits that the respondent is in breach of section 3 (c) (iii) as the respondent has imposed a condition which is directed specifically at the complainant which could only effect a miniscule section of the population. The complainant states that the respondent is in breach of section 5 of the Equal Status Acts since it is engaged in providing a service where that service can be availed of only by a section of the public. The complainant contends that the respondent is offering to the vast majority of Irish citizens and European citizens the opportunity to play basketball in its leagues and competitions as a Category 1 player but the complainant may not participate on that basis simply because he was born in the United States and was not educated in Ireland. The complainant makes the point that he is now in his early forties and that he may not have much playing time left. He states that he should be given categorisation as a Category 1 – Irish player given that he has attained Irish citizenship since June 2012. He submits that the rules for categorisation are discriminatory against him on grounds of race.

4. Submission on behalf of the respondent

4.1 The respondent submits that it is the body responsible for the promotion and administration of the sport of basketball throughout Ireland. As part of this function, the respondent regulates the Men’s Super League Competition (now known as the Premier League). One of the requirements of the Premier League is that all competing teams must be registered with Basketball Ireland through the club registration scheme. In order for a player to play in the League, he must be registered and licenced to play with a particular club. A licence is applied for by the relevant club, not the individual player and licences once issued are held by the club. The respondent makes the point that the complainant did not use the internal mechanism within the sport namely the National Appeals Committee which is an arbitration body which examines disputes in the sport nor did he accept the option of mediation. The respondent states that the complainant is factually incorrect when he states that players enter into yearly licencing arrangements with and pay a licencing fee to the respondent rather clubs apply and pay for such licenses. The respondent submits that Category 2 players are paid as professional basketball players. The complainant is licenced as a Category 2 player. Category 2 players can play every week, if selected, and the respondent is aware that the complainant did play for his then club, Killester Basketball Club, on a regular basis. Killester Basketball Club applied in advance of the 2012/2013 season for a Category 1A licence in respect of the complainant; this was refused on the basis that the complainant did not meet the criteria for such a licence, in that, he was not a locally trained player who had spent at least three years at a primary or secondary level school in Ireland. The respondent further submits that the complainant did not qualify for a Category 1B or Category 1C licence, in that, he had not spent at least three years at primary or second level school in the EU/EEA. In response to the complainant’s argument that he does not get much court time, the respondent submits that on the contrary, the complainant is the top scorer for his club and has been over the last year and in fact gets substantial court time at games.

4.2 The respondent submits that, in relation to the Dublin Inter team comprising, in the main, Lithuanian nationals living here, with the enlargement of the EU, it was required on the basis of EU directives to change its rules to reflect this in conjunction with FIBA Europe. The respondent states that in countries such as Estonia, Latvia and Lithuania, basketball is their national sport and although those persons are categorised as Category 1 players, none of the Lithuanian players are paid. The respondent vehemently denies that it either directly or indirectly discriminated against the complainant on the race ground. The respondent submits that, at all times, its aim has been to ensure the survival and promotion of the sport of basketball at local level. This aim has been furthered by a number of requirements and initiatives including that participating clubs would be encouraged to contribute to the development of sport in the region and show evidence of commitment to the League. A further measure directed at this aim was the introduction of a system of categorising players which was designed to allow all players to have game time but particularly to allow locally trained players, regardless of nationality to get an opportunity to play basketball at the highest level in Ireland with the result of ensuring a high quality of locally trained players. “Locally trained players” are those who have spent time during schooling years playing basketball, regardless of their race and/or colour and/or nationality and/or ethnic or national origins. Clubs are allowed to play up to five locally trained players but can only play one Category 2 player at any particular time. The respondent states that there are no restrictions as to the race of the Category 2 player. In addition, a Category 2 player could play every week if selected, as is the situation in the complainant’s case in his particular club, in the same way as a Category 1 player can play every week, if selected.

4.3 The respondent denies that the complainant has been either directly or indirectly discriminated against on grounds of race. The respondent accepts that the complainant is an Irish and EU citizen. However, it states that not all Irish or EU citizens qualify as Category 1 players because of the reasonable requirements as to being locally schooled as set out above at 4.2. The respondent reiterates that at all times it has accepted the complainant is an Irish and EU citizen and the respondent has at all times categorised the complainant as a “Category 2 – Irish” player. The respondent submits that Category 2 players are in a superior position to Category 1 players as (i) it is not the custom of the Men’s League to pay monies to Category 1 players and (ii) Category 1 players can only apply to transfer clubs at the beginning of the season whereas Category 2 players can apply to transfer right up to the last few weeks of the end of the season. In that regard, a player who wishes to apply half way through a season for a transfer (e.g. if he is not being selected or because he is moving away from an area) can do so if he is a Category 2 player but cannot do so if he is a Category 1 player. The respondent denies that it either directly or indirectly discriminated against the complainant and submits that any difference in treatment is objectively justified by a legitimate aim, in that, the respondent is trying to ensure the survival and promotion of basketball at the highest level in Ireland. The respondent further states that the means of achieving that aim are appropriate and necessary, in that, categorisation of players and rules relating to game time are required to ensure a high quality of locally trained players, without which the game of basketball could not survive in Ireland and at the same time also allowing non-locally trained players the opportunity to play basketball on a weekly basis. The respondent contends that the rules go no further than is necessary in the circumstances and in fact “non-locally trained” players are in many ways in a more favourable position to locally trained players in terms of financial benefits and ease of transferability.

4.4 The CEO of Basketball Ireland gave a history of the development of the sport in Ireland. In the 1980’s, it was an all amateur sport and in order to promote the game and increase its popularity, a decision was made to allow clubs to bring in some professional basketball players who would be paid and these were, in the main, professional players from the United States. Category 2 players are professional players that are paid and are mostly from the US. At one stage there were three Category 2 players within a club. However, it transpired that the rule of having three Category 2 players resulted in serious financial difficulties for certain clubs and indeed certain clubs were going out of business as they could not meet the financial demands placed on them. This rule had serious repercussions for the development of the game in Ireland. Consequently, following meetings between officials of the clubs and committees, it was decided in early 2000 that the rules be amended to only allow one Category 2 player on the court at any time. This rule was ratified by all of the individual clubs. The respondent gave an example of a player, Mr. L who plays in the Irish Men’s Super League. He was born and lived in Ireland until he was about aged 4 or 5. Subsequently, his family moved to the US and he developed in the basketball scene and came back to Ireland a number of years ago as a professional basketball player. This individual has both Irish and US citizenship but similarly, is categorised as a Category 2 – Irish player as he does not fulfil the criteria of being “locally trained” i.e. to have spent time playing competitive basketball in the schooling system in Ireland. Therefore, the respondent submits it is not about a person’s race or that they hold an Irish or EU passport; it is about the development of the game of basketball within Ireland. The respondent states that the complainant is requesting that it changes the rules just to suit him and he is not thinking of the greater good of the sport in relation to the development of individual players and of the game itself. The complainant made the argument that, in August 2014, he wore an Irish jersey and played in Latvia on the European National Team. The respondent states that this year, FIBA asked its members to enter teams in what was a European competition. A team of four players was selected from Ireland and participated in the competition in Latvia. The complainant was one of those players and was eligible to play for Ireland under the FIBA rules for this European competition. The respondent submits that this is not a full international competition and as yet is still an experimental competition. The respondent maintains that notwithstanding this fact, while a player may be eligible to play for Ireland in a FIBA European competition, he may be categorised as a Category 2 player in National competitions.

4.5 The CEO for the respondent submits that its aim is to have a viable Premier League with viable teams and to ensure the development of the game in Ireland. The organisation needs to be cognisant that any rule change may have a wider impact on the sport. The rules and regulations have organically changed through the years but always at the heart of it, was the development of the sport and ensuring balance and fairness in all of its competitions. The respondent CEO submitted that the connection with all of the main ten clubs and players is very tight and teams travel over to the US yearly and have very close links with teams in the US. He states that if it was required to change the rules in order to suit the complainant, it could result in a situation in 5 years down the line where professional basketball players who are coming to the end of their career in the US and based on their knowledge of the situation in Ireland decide to come and play here given their connections with the country. Given that these players are professional and are paid; the enforcement of a rule change as requested by the complainant could detrimentally change the dynamics of the amateur status of the sport thereby not allowing the game to flourish and not allowing for the development of locally trained players in the way it has done so up to now. The respondent also submitted that it would also have serious detrimental effects in terms of the financial viability of the clubs in question and have a disproportionate impact on the competitiveness of clubs in the Premier League.

4.6 The respondent denies that the complainant was subjected to discriminatory treatment under the Acts and submits that any difference in treatment is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary by virtue of section 5(2) and in particular section 5(2)(f) of the Act which allows for “differences in the treatment of persons, inter alia, on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event.” The respondent submits that such differences as exist in this case are reasonably necessary to ensure the survival and promotion of the sport of basketball at a local level and are relevant to the need to allow locally trained players to get an opportunity to play basketball at the highest level in Ireland thereby ensuring a high quality of locally trained players, as without such high quality locally trained players, the sport of basketball could not be provided for or organised in Ireland.

5. Conclusions of the Equality Officer

5.1 The matter referred for investigation was whether or not the complainant was discriminated against on the race ground contrary to the Equal Status Acts. In reaching my decision, I have taken into account all the written submissions and oral testimony made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:

3.- (1) For the purposes of this Act, discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

2. (h) that they are of different race, colour, nationality or ethnic or national origin (the “ground of race”)

The complainant is required to establish facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of section 2 of the Equal Status Acts.

5.2 In the instant case, the issue for decision is whether or not the complainant is being discriminated against on the race ground in relation to not being categorised as a Category 1 – Irish player given that he has attained Irish citizenship in June 2012. The complainant states that, as he is classified as a Category 2 - Irish player, he is limited as regards court time as only one Category 2 player can be on the court at any one time. The complainant submits that the requirement in relation to Category 1 players to be locally trained, i.e. to have spent time playing basketball during their school years in Ireland is discriminatory on grounds of his race, in that, his origin is US and he could not fulfil this requirement. The respondent gave an example of another player Mr. L, who was born in Ireland and lived here until age 4/5 and then moved to the US and played basketball at a high level. Subsequently, he returned to Ireland as a professional basketball player. The respondent contends that this individual has both Irish and US citizenship but similarly he is categorised as a Category 2 – Irish player as he does not fulfil the criteria of coming through the schooling system as laid down in the rules and regulations.

5.3 Based on the regulations of Basketball Ireland pertaining at the time the complainant lodged his complaint, there were two categories of players;

A. Category 1 players, including Cat 1A, Cat 1B, Cat1C.

B. Category 2 players

Category 1A players are locally trained players that have spent at least three years at a primary or second level school in Ireland. In exceptional circumstances, the tertiary educational system may be acceptable if the player has spent at least two years in the second level schools system.

Category 1B players are players that have spent at least three years at a primary or second level school in the EU/EEA and have been resident in Ireland for a minimum of 180 days prior to being licenced.

Category 1C players have spent at least three years at a primary or second level school in the EU/EEA and have been resident in Ireland for a minimum of three years prior to being licensed. A player must also have been registered, as a player, with Basketball Ireland for at least two years and permanently resident in Ireland.

5.4 The respondent CEO stated that the organisation was required to review and update its policies and procedures in line with FIBA who are the governing body for Basketball associations. In that regard, in August 2013, its regulations were updated. I note that for the purposes of the Premier League Competition, two categories of players were identified as follows;

A. Category 1 Players

B. Category 2 Players

Category 1: Any player resident in Ireland for a minimum of 3 months (i.e. 90 days) qualifies for a Category 1 licence provided they fulfil the requirements as a “FIBA Europe Developed Player” (FED-Player)

Category 2: Any player not qualifying for a Category 1 licence. (However, a player cannot be granted a Category 2 licence if they fulfil the criteria to be eligible for a Category 1 licence.)

Definitions:

“FIBA Europe Developed Player” (FED-Player) – A player who played underage basketball between ages 12 & 18 for at least two consecutive years with an official school/club registered with a National Governing Body, which is affiliated to FIBA Europe. The onus of proof of eligibility shall be on the club seeking to register the player.

Resident – A player is deemed to be resident if that player has resided on the island of Ireland for a minimum of 90 days prior to the designated official start day of the season and can produce evidence as required. The National League Management Committee – Men (NLMC-Men) will make the final decision on a player’s eligibility, or not, where a dispute arises. A licence may be issued to a Category 1 player, who is resident on the island of Ireland prior to the designated official start day, but who has not been resident for 90 days. However, this player cannot play until he is resident for 90 days. (This last provision is to facilitate full-time students who also satisfy the following:- students from the area governed by FIBA Europe, who are accepted by one of the third level institution or colleges, affiliated to Basketball Ireland, on a recognised academic course, for a minimum of at least one academic year.)

5.5 According to the Equal Status Acts, indirect discrimination occurs ‘where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. Having examined the evidence, I am satisfied that the complainant has demonstrated that he was disadvantaged by an apparently neutral provision on account of his race, in that due to his US origin, he cannot fulfil the requirement to be a Category 1 player. Therefore, the complainant has established an inference of discriminatory treatment on grounds of his race and national origin. Thus, the onus shifts to the respondent to establish that the provision was objectively justified on the basis that,

(i) it was a legitimate aim

(ii) the means of achieving that aim is appropriate

(iii) the means of achieving that aim is necessary

Having carefully examined all the evidence in this matter, I find the arguments on behalf of the respondent persuasive in relation to its contention that its rules regarding categorisation of players are considered to be a legitimate aim and the means of achieving that aim are appropriate and necessary. The respondent submits that its aim is to safeguard and foster the amateur sport of basketball in Ireland. The respondent outlined the development of the sport since the 1980’s and the manner in which the rules have organically changed throughout the years. The respondent is governed by FIBA which is the international association with responsibility for basketball associations. The respondent submits that its rules and regulations conform to acceptable standards as laid down by FIBA. The respondent contends that such differences as exist in this case are appropriate and necessary to ensure the survival and promotion of the sport of basketball at a local level and are relevant to the requirement to allow locally trained players to get an opportunity to play basketball at the highest level in Ireland. As a consequence, this ensures a high quality of locally trained players, as without such players the sport of basketball could not be provided for or organised in Ireland.

5.6 I find the arguments of the respondent persuasive in regard to the implications and repercussions of a rule change as requested by the complainant. In this regard, the respondent CEO gave an example whereby a change as requested by the complainant could result in a situation down the line where professional basketball players who are coming to the end of their career in the US and based on their knowledge of the situation in Ireland decide to come and play here given their connections/links with the country. Given that these players are professional and are paid; the enforcement of a rule change as requested by the complainant would detrimentally change the dynamics of the amateur status of the sport thereby not allowing the game to flourish and not allowing for the development of locally trained players in the way it has done so up to now. I am mindful that it could also have serious detrimental effects in terms of the financial viability of the clubs in question. In that regard, if there was to be a rule change such as requested by the complainant, a situation could result whereby clubs who are more well-off financially are in a position to have high level players and professional players/former professional players from the US therefore dominating the League with a competitive advantage. This could also result in some clubs going out of business due to lack of funds and an inability to attract the professional/former professional players. Having carefully examined all of the evidence, I am satisfied that a rule change requested by the complainant, i.e. to be given Category 1 status, if enforced, would result in a disproportionate impact overall on clubs in the Premier League and ultimately on the growth of the game of basketball in Ireland. Having taken all the evidence on the matter, while I find that the complainant has established a prima facie case of indirect discrimination on grounds of race; I am satisfied that the respondent has established objective justification for the difference in treatment.

5.7 In addition, I find that the respondent is entitled to rely on the exemption laid down in Section 5(2)(f) of the equal status legislation where it allows for “differences in the treatment of persons, inter alia, on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event.” The complaint concerns the organisation of basketball teams in order to promote and foster the sport in Ireland and the difference in treatment of the complainant is necessary having regard to that aim. I note that Category 1 players are amateurs and Category 2 are professional players who are paid. Having carefully considered all the evidence, I am satisfied that the rules and regulations of the respondent organisation have developed over the years and are designed to protect and promote the amateur status of the sport of basketball in Ireland but also to ensure that there is fairness and balance in the sport. I find in favour of the respondent in this case.

6. Decision

6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that:

(i) the respondent did indirectly discriminate against the complainant on grounds of race in terms of the manner in which it categorised him as a Category 2 - Irish player

(ii) the respondent has objectively justified its actions in terms of section 3(1)(c) of the Equal Status Acts

(iii) the respondent is entitled to rely on the exemption laid down in Section 5(2)(f) of the equal status legislation.

___________________

Valerie Murtagh

Equality Officer

30 December, 2014