Internal Policing of the Enduring Issue of Racism in Professional Team Sports
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The University of Notre Dame Australia Law Review Volume 17 Article 3 31-12-2015 Internal Policing of the Enduring Issue of Racism in Professional Team Sports Chris Davies James Cook University, [email protected] Neil Dunbar James Cook University, [email protected] Follow this and additional works at: https://researchonline.nd.edu.au/undalr Part of the Law Commons Recommended Citation Davies, Chris and Dunbar, Neil (2015) "Internal Policing of the Enduring Issue of Racism in Professional Team Sports," The University of Notre Dame Australia Law Review: Vol. 17 , Article 3. DOI: 10.32613/undalr/2015.17.1.3 Available at: https://researchonline.nd.edu.au/undalr/vol17/iss1/3 This Article is brought to you by ResearchOnline@ND. It has been accepted for inclusion in The University of Notre Dame Australia Law Review by an authorized administrator of ResearchOnline@ND. For more information, please contact [email protected]. INTERNAL POLICING OF THE ENDURING ISSUE OF RACISM IN PROFESSIONAL TEAM SPORTS CHRIS DAVIES * AND NEIL DUNBAR ** Abstract The issue of racism is one that is covered by both international treaties and domestic legislation. Most major sports, however, now have internal regulations, usually reflecting the treaties and legislation. Case studies from Australian, English and European sport, in particular, football, basketball, cricket and rugby league, indicate that the internal regulations have been effective in dealing with racism issues in those sports. The issues have involved players, managers, coaches, owners, officials and spectators, with the latter representing the main problem area for sport. The reasons for this are that it can be harder to identify the culprits and there is a lack of formal contracts between the sporting leagues and the spectators, though obligations can be enforced through ticketing and the law of licence. While banning spectators who have been identified as having made racist comments is important, it is suggested that education of culprits, be it player, manager, spectator or official, is also an essential requirement. I INTRODUCTION The 2014 World Cup in Brazil brought together players and spectators from diverse cultures to a vast global television audience. It therefore provided an opportunity for the Federation Internationale de Football Associations (FIFA) to highlight its stance on racism with prominent signs urging ‘Say No to Racism’ displayed around the grounds. However, the recent incident in Paris involving Chelsea supporters allegedly singing a racist song after the Champions League match against Paris Saint-Germain illustrates that the problem of racism in sport remains an enduring one. While that involved an overseas incident, the 2014 Australian Football League (AFL) season saw its own racism incidents involving officials, players and spectators. This paper will therefore look at the ongoing problem of racism in sport. It will firstly provide a brief overview of the relevant international treaties, domestic racism laws, and sports internal regulations. It will then examine a variety of case studies from Australia,1 United Kingdom (UK), the United States (US) and Europe involving alleged racist comments by owners, officials, managers, players and spectators. A question that will be considered is whether internal regulations provide a better outcome than a reliance on the general law. Suggestions will also be made as to how the various situations could have been handled better and what lessons can be learnt from these case studies. II RACIAL DISCRIMINATION AND THE LAW A International Conventions * Associate Professor, James Cook University ** Lecturer, James Cook University 1 For further information regarding the issue of racism within Australian sport, see Paul Oliver, Human Rights and Equal Opportunity Commission, What’s the Score? A Survey of Cultural Diversity and Racism in Australian Sport (2006). 59 (2015) 17 UNDALR The United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) was held in New York in March 1966, with the Convention originally signed by 87 parties, and subsequently ratified by 177 countries. The vast majority of countries in the world have therefore accepted and acknowledged the importance of seeking to eliminate racial discrimination. Racial discrimination is defined in art 1 as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Australia signed the Convention on 13 October 1966, and it became domestic law with the enactment of the Racial Discrimination Act 1975 (Cth). The legislation reflects the wording in the Convention, and remains the basis of Australian racial discrimination law. The Racial Hatred Act 1995 (Cth) was subsequently enacted, with the purpose ‘to ‘prohibit certain conduct involving the hatred of other people on the ground of race, colour, or national or ethnic origin’. Section 3 inserted a pt IIA into the Racial Discrimination Act 1975 (Cth), which remains the principal Act, to prohibit offensive behaviour based on racial hatred. Therefore, while participating in sport, a person cannot be singled out because of his/her race or ethnic origins and he/she is entitled to be free from taunts of a racist nature.2 The UK signed the Convention on 11 October 1966 and ratified it with domestic legislation on 7 March 1969. Racial discrimination was originally prohibited by the Race Relations Act 1976 (UK), but is now covered in the all-embracing Equality Act 2010 (UK), which deals with all forms of discrimination. Section 28 (1) of the Crime and Disorder Act 1998 (UK) has also added a race element to a number of established offences, including wounding, assault and criminal damage. Thus, an offence is seen to be ‘racially or religiously aggravated if: (a) [a]t the time of the offence (or shortly before or after) the offender demonstrates to the victim hostility based on the victim’s membership (or presumed membership) of a racial or religious group, or (b) [t]he offender is motivated wholly or partly by hostility towards members of a racial or religious group based on their membership (or presumed membership) of that group.’ Besides these specific offences, under s 145 of the Criminal Justice Act 2003 (UK) courts are required during sentencing to treat more seriously any offence which can be shown to be racially or religiously aggravated. Incitement of racial hatred is also covered by the Public Order Act 1986 (UK), with s 18(1) providing that a person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if – (a) [h]e intends thereby to stir up racial hatred, or (b) [h]aving regard to all the circumstances racial hatred is likely to be stirred up thereby. 2 Note also that within the jurisdiction of the Australian states and territories, racial discrimination is covered by wider discrimination, anti-discrimination and equal opportunity Acts that contain provisions that specifically prevent registered clubs from discriminating on the basis of race. Examples of these statutes include the Anti- Discrimination Act 1991 (Qld), Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1998 (Tas) and the Equal Opportunity Act 1984 (WA). Some states also have some specific legislation, for eg, the Racial and Religious Tolerance Act 2001 (Vic) and the Racial Vilification Act 1996 (SA). In addition, Victoria has a Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Australian Capital Territory has the Human Rights Act 2004 (ACT). 60 INTERNAL POLICING OF THE ENDURING ISSUE OF RACISM IN PROFESSIONAL TEAM SPORTS Racial hatred is described in s 17 as ‘hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.’ It should be noted that the UK also has a specific sport related Act, namely the Football (Offences) Act 1991 (UK), s 3 of which makes it an offence to engage or to take part in chanting of indecent or racist nature at a designated football match, with racist nature being defined as including matter which is threatening, abusive, or insulting to a person by reason of colour, race, nationality, ethnic or national origins. The US became a signatory to the Convention on 28 September 1966, and although it was not ratified domestically until October 1994, discrimination based on race, colour, religion, sex or national origin was prohibited by the Civil Rights Act 1964. This Act ended racial segregation in schools, at the workplace and facilities open to the public, while s 901 of the later Civil Rights Act 1968 provided equal housing opportunities regardless of race, religion or national origin. The US Sentencing Commission meanwhile increased the penalties for federal crimes on the basis of actual or perceived race, colour, religion, national origin ethnicity or gender following the passing of the Violent Crime and Law Enforcement Act 1994. It should also be noted that the First Amendment to the US Constitution prohibits the restriction of freedom of speech. This restriction means that US citizens can make racial comments without the threat of legal sanction, if it fits within freedom of speech. Thus Australia, the UK and the US, as signatories to the Convention opposing racial discrimination, now have domestic legislation prohibiting racial comments that are likely to offend, insult or humiliate. While these can potentially apply to sport, what will now be examined are the internal regulations imposed by sporting organisations in regard to the issue of racism.3 B Internal Regulations of Sporting Organisations A feature of modern professional sport is the heavy reliance on contracts, often with collateral code of conduct provisions.