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29th July 2020

The importance of reviewing athlete contracts, following Jess Varnish’s unsuccessful appeal

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Jess Varnish was a GB track cyclist until 2016 when, after not being selected for Team GB for the Rio Olympics, she made a number of complaints against GB Cycling. This led to an independent enquiry, in which (amongst other things) various - much-publicised but hotly disputed - comments, said to have been made to her by Shane Sutton (the Technical Director at the time) were considered.

Less well known is that she brought a claim in the Employment Tribunal arguing that her relationship with GB Cycling and/or UK Sport was that of an employee or a “worker”, and that her funding from UK Sport was a wage. If she had succeeded in that claim, in the words of Counsel for GB Cycling, the implications for publicly-funded elite athletes would have been akin to “the skies falling in”, as the additional costs would have significantly reduced the number of athletes who could benefit from such funding.

Varnish was found to have been self-employed and, as a result, unable to pursue other claims against GB Cycling for sex discrimination. That finding has now been upheld by the Employment Appeal Tribunal (EAT). Whilst it is rather depressing that, instead of enjoying the Tokyo Games, we are left raking over the coals of Rio, there are important points to note from this Judgment.

In a previous article on this, following the Employment Tribunal Judgment, I explained how it appears to swim against the tide of other recent cases on the issue of self-employment, involving Addison Lee and Uber drivers, and Pimlico Plumbing plumbers, in all of which the contention of self-employment was rejected. What is the difference?

When looking at the authorities one is inevitably struck by the numerous unsuccessful attempts to provide a universal, clear, definition of “employment”. The EAT Judgment is that the original Judge was entitled to find that Varnish was self-employed, on the facts before him. The most persuasive factor appears to have been that there was no “mutuality of obligation” and that the training did not amount to “work”. In other words, the UK Sport funding was akin to a University grant to enable the athlete to focus, full-time, on the training and support offered by GB Cycling through their “World Class Programme”.

While some of the factors in this case have led to different findings previously, including in a previous case involving a professional footballer in which training and playing football were found to be “manual labour” (a finding which highlights the semantic difficulties in this area of law!), the EAT emphasised the importance of the contractual position. In Varnish’s case, the contract made clear that British Cycling was providing services to her rather than the other way round. The EAT also emphasised, however, that these cases must determined on their own facts.

An important lesson to be taken from the Varnish case, therefore, is to ensure that athlete contracts are carefully drafted (and, of course, that they reflect the reality of the relationship) failing which there is a risk of a finding of “employment” or “worker” status and an obvious danger (in the immortal words of Chicken Licken, cited in this case) of the sky falling.

For more information on any of the items raised in this article please contact Edward Wheen by clicking here or contact a member of our Sports Team.