Complainant

Respondent

Anonymised Parties

A juvenile football player

The Football Association of Ireland

Representatives

Dara Hayden Hayden & Co. Solicitors

Keith Rolls Football Association of Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00033548-001

08/01/2020

The complainant is a female juvenile football player who was denied the opportunity to play in the U17 Women’s League on the grounds of being too young. Different rules regarding eligibility applied to the U17 Boys league.

The Complainant is a minor and the complaint is submitted on her behalf by her mother and therefore I have decided not to name her in my decision.

The Complainant is a juvenile football player born on the 31st March 2004. She had her registration initially accepted for the Women's Under 17 National League. Her registration was subsequently purported to be "de-registered" for the Women's Under 17 National League after she had commenced playing. The Women's U17 National League Competition Regulations Rule 10.2 Provides that players born in 2002 & 2003 only are eligible to participate. The corresponding rule for the Boys Under 17 National League provides at Rule 27.1 that players must be born on or after 1st January 2002. Therefore, boys aged 17 and under can participate, unlike the girls whereby only girls born in 2002 and 2003 can play. The season ended on the 11th October 2019 and Respondent continued to discriminate against the Complainant up until that time. This impacted on her chances to be selected for national trials and potentially to be awarded scholarships.

The Respondent is the governing body of association football in Ireland and as such, is responsible for the proper administration of each and every league.

At all material times the Complainant was permitted to play football in line with the terms and conditions as set out within the Respondent’s rules. The Complainant seeks to assert that she was discriminated against (on the ground of gender), as a result of being prohibited from playing at a certain age level. However, for the purpose of the Act, this does not meet the definition of discrimination as she was never prohibited from accessing a service. The Complainant had not reached the minimum required age limit to play within the Só Hotels Women’s Under 17 National League. At no time was she refused the ability to play football under the national framework, however, she was required to play at her appropriate age group

The Competition Rules clearly define the eligibility criteria for players to play at Under 17 level, and Rule 10.2 states:

‘Players born in 2002 and 2003 only are eligible to participate in the FAI Women’s Under 17 National League’.

The Complainant was born on the 31st day of March 2004, and as such, was not eligible for the Só Hotels Women’s Under 17 National League at the relevant time

The Complainant seeks to rely on the National Under 17 SSE Airtricity League as a basis for her comparator. This is a fundamental misunderstanding of equality law and the concept of a comparator. A player of the SSE Airtricity League is simply not in a comparable position to a player in the Só Hotels National League in circumstances whereby they are wholly different competitions, with different governance and different rules. To highlight a most basic example of a fundamental difference which makes the two leagues incomparable, in the 2019 season, a game of football in the Só Hotels National League last for a duration of 80 minutes, whereas an SSE game lasted for 90 minutes.

The Complainant references the National Under 17 SSE Airtricity League rules relating to a players age and eligibility which states:

Players must be born on or after 1st January 2002 in order to be eligible by age to compete in the SSE Airtricity Under 17 National League

It is submitted that any actions of the Respondent are lawful in circumstances where the alleged discriminatory act(s) clearly meet the criterion as set by Section 5(f) of Equal Status Act, which states:

(f) differences in the treatment of persons on the gender, age or disability ground or 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,

It is a matter of fact that female sports suffer greatly when girls reach formative teenage years. If one is to compare male to female sports, and in particular football, there is a gross divergence in numbers of young female versus young male athletes. It must be noted that in 2019, 80,952 boys were registered to play schoolboys football while only 14,299 girls were registered to play schoolgirls football. As such, it is imperative that the Respondent (as a prudent and responsible organisation) takes steps to ensure that female players at all age remain active and each age group remains competitive

The initial age limit for the relevant league was set by a decision of the Women’s National League Committee. This Committee is the governing committee over the relevant league and has the power to amend (as it deems fit) the rules of the league. The Committee makes all decisions in the best interests of girls’ football and ensuring the participation and development of all players who are registered to play. For the purpose of clarity, the relevant league commenced as a pilot league in 2018 with the initial age criteria.

The Committee of the League meet on a monthly basis during the competition to assess its progress and had the power to make any relevant rule changes. As can be seen by the minutes of the Committee meeting held on the 3rd of December 2018, the committee made an express decision relating to the age criteria of the Under 17’s. It is noted that the minutes state:

The squad size will remain at 20 players and the eligibility will be 2002 and 2003. This will be reviewed mid-season and any changes announced early for the 2020 season.

The Committee reviewed the age criteria for players of the relevant league. In line with the powers of the Committee and having assessed the pilot programme and the needs of the League, they subsequently made a change to Rule 10.1 for the 2020 season.

The Complainant has not actually named a comparator and has instead opted to use a broad sweeping comparison based on the rules of two fundamentally different competitions. The Complainant has, as a matter of law, failed to name any comparator. The Complainant cannot simply cherry pick a hypothetical comparator from another (unrelated) competition.

The actions of the Respondent are protected by virtue of Section 5(f) of Act. The Adjudication Officer in Byrne v Woodenbridge Golf Club made findings which are extremely relevant to the within matter, stating:

The respondent said that section 5(1) of the Equal Status Act “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” However, that is tempered by subsection (2) where 12 different exceptions in which Section 5(1) do not apply. Most notably Section 5(2)(f), which provides for “differences in the treatment of persons on the gender, age or disability ground or 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,”

Section 5(2)(f) provides a defence to the Respondent on the grounds of objective justification. The Labour Court in its decision of the Department of Justice, Equality and Law Reform v The Civil Service Public & Services Union adopted the test for objective justification in the UK decision of Barton v Investec Henderson Crosthwaite Securities Limited which was as follows:

(1)         That there were objective reasons for the difference;

(2)         Unrelated to sex;

(3)         Corresponding to a real need on the part of the undertaking;

(4)         Appropriate to achieving the objective pursued;

(5)         It was necessary to that end;

(6)         That the difference conformed to the principle of proportionality;

(7)         That was the case throughout the period during which the differential existed.

There are clear and unambiguous reasons for the age limits as set out within the Women’s League Rules. The rule relates to a real need on the part of the Respondent and it is wholly appropriate to achieving the objective (that being to preserve the female underage game of football). Further the rule is necessary and wholly proportionate to achieve the required aim and is a decision of a Committee whose purpose is to further the relevant league.

Section 38A of the Equal Status Acts provides that the burden of proof is:

"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

It requires the complainant to establish, in the first instance, facts upon which he or she 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.

The basic facts in this case are not in dispute and are in summary;

The complainant was initially registered to play in the Women’s U17 league despite not meeting the age criteria specified in the rules and subsequently had this registration withdrawn.   Different age criteria, relating to dates of birth, applied in the U 17 Boys League, under which, if it had applied in the Women’s League, the complainant would have been able to compete. I note that the complainant provided details of two named boys as comparators at the hearing.

I am also satisfied that participating in leagues constitutes ‘service’ for the purpose of the Act.

The league was for women only, and therefore the complainant was not discriminated against on the grounds of gender compared to any other participant in that league.   When making rules in a sporting organisation regarding age the rule must be capable of being applied generally and cannot take account of individual circumstances. The fact that the complainant was unduly discommoded by the application of the rule is therefore not the issue. The issue is whether the entire league, including the complainant, was discriminated against, by virtue of having different rules compared to the Boys U17 League.

The FAI saw fit to establish different committees to manage their differing constituent groups.   The only rational explanation for this is to allow for different regulations to apply in each group. The committee charged with making the decisions bring their own expertise to bear in establishing their rules. There was no evidence given at the hearing to suggest that the offending rule relating to age was imposed on that committee. They were free to establish different rules, including the rule in question, as is evidenced by the fact that they were able to subsequently change it based on their experience. It is a regular occurrence for sporting organisations to make rule changes and, with the benefit of experience, to subsequently alter the rule. In other words, to be legal, the rule does not have to be a success. Other committees may have reached different conclusions on what was best for their participants. The rule in this instance applied equally to everyone seeking to participate in that league.

Section 5(1) of the Equal Status Act provides that;

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

However, Section 5(2)(f) in detailing an exception in which Section 5(1) does not apply provides for;

“differences in the treatment of persons on the gender, age or disability ground or 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,”

I am satisfied that Section 5(2)(f) allows the respondent to hold specific sporting events and that this would include the various underage leagues. I am also satisfied that there was no coercion on the committee to establish the rules regarding eligibility on the grounds of age, and that they did so based on the expert opinion of their committee members. The fact that they subsequently changed the rule simply illustrates their freedom to make the rules and to learn by experience. I am satisfied that the committee, based on the evidence provided regarding participation of women in football leagues, believed that the different rule was ‘reasonably necessary’.

I find that the respondent is entitled to rely upon section 5(2)(f) as a defence in this case and that accordingly, the complainant has not established a prima facie case of discrimination.

I find that the respondent did not engage in discriminatory conduct.

Equal Status. Different rules for boys and girls football competitions.