Age discrimination

An article in Planet Rugby (http://www.planetrugby.com/story/0,25883,3820_9121712,00.html) with Nick Easter focuses on the fact that his form has been good enough to deserve a recall to the England set up and that the decision not to has to be on age alone.  Comparing his form to Ben Morgan's does give this argument more weight.  So the question is to any budding employment lawyers, is that in the normal work place this would be deemed age discrimination and the employer would be open to tribunal claims.  As EPS players receive payment this can be deemed employment, therefore, how can Easter not be selected and the RFU not be subject to an age discrimination claim?

He has a good point. Still the best England 8.

Maybe but it depends if England are focusing on building a squad aiming towards the WC.

Employment Tribunal:  Mr Lancaster, are you not selecting Mr Easter because of his age?
 
Bomber: No m'lud, I'm not selecting him because he lacks pace and I am trying to build a mobile pacy pack.  I also have question marks around his attitude after comments made by him in the dressing room at the last World Cup and therefore I do not want him as part of the squad.
 
Case closed, no case to answer.

correct Ozzy.

Very well put Ozzy!

Sometimes you just get one post that knocks a thread on the head and makes further discussion rather redundant. Chapeau, Ozzy.

So a judge, over the course of 15, 16 or 17 tribunals, should decide who plays on the English team?

Novel idea...could be a goer though.

It's all change at Rugby Union.inc!!!! You blink and you've missed a dozen new developments on player rights and money printing planetary possibilities.

This is why employment law doesn't always trump sport. You can't force a national coach to pick a player. The player isn't employed by England either so there is no contract there!

Griff even in the case of the IRFU, who do centrally contract players, you don't have any recourse to an employment tribunal surely? After all, they'll still get paid whether they are picked or not. There may be performance-related bonuses regarding achieving international caps- I honestly do not know and am not in a position to know. Right now, thats the only thing I can think of you could claim you suffered from financially if you were not selected but your basic salary is secure.

I've never heard in the history of pro rugby union of a player who was willing to take a Union to court over something like this anyway, it's a very shaky hypothetical situation. Its times like this I wish posters like red_stag hadn't sublimed to 606v3. Having studied law and sports law in particular he'd have a more informed contribution to make than I.

The practical complications when I get a little serious about it.

A worker has rights - and blatant age discrimination can be an infringment of a worker's right by an employer and they can be hauled before a tribunal to answer the charge.

But - there must be evidence that 'age' was the factor.

How could a tribunal prove that Easter plays to the standards - all aspects/ in conjunction with specific team dynamics and gameplans - required of Lancaster's England?

And - given that Lancaster too has rights as a professional coach, and has I'm sure a written contract specifying his role and authority - how could a tribunal impede his coaching powers to decide on the team he wants to pick, to go with the gameplans he wants to adopt, to go with the plans he has for development of the squad overall?

So let's say Lancaster loses the age discrimination case - he then take a case himself to claim his rights as a coach are being infringed by the tribunal judgement.

Griff wrote:This is why employment law doesn't always trump sport.  You can't force a national coach to pick a player.  The player isn't employed by England either so there is no contract there!  

The players are employed by England. This is in addition to their employment with their clubs.

Ozzy3213 wrote:Employment Tribunal:  Mr Lancaster, are you not selecting Mr Easter because of his age?
 
Bomber: No m'lud, I'm not selecting him because he lacks pace and I am trying to build a mobile pacy pack.  I also have question marks around his attitude after comments made by him in the dressing room at the last World Cup and therefore I do not want him as part of the squad.
 
Case closed, no case to answer.

Thats a nice payday 'down the toilet' for some Lawyer!   

Employment Tribunal: Remind me what those comments were in the dressing room, Mr Lancaster.

Oh I've just looked it up and yeah, now I remember.

Well thats 35k down the Toilet!

Ozzy3213 wrote:Employment Tribunal:  Mr Lancaster, are you not selecting Mr Easter because of his age?
 
Bomber: No m'lud, I'm not selecting him because he lacks pace and I am trying to build a mobile pacy pack.  I also have question marks around his attitude after comments made by him in the dressing room at the last World Cup and therefore I do not want him as part of the squad.
 
Case closed, no case to answer.

That wouldn't hold up in an employment tribunal. Pace and attitude doesn't stop him delivering the role of a no.8.

I appreciate this is all conjecture, but from an employment perspective people who are less capable than him are being selected ahead of him.

Exiledinborders wrote:

Griff wrote:This is why employment law doesn't always trump sport.  You can't force a national coach to pick a player.  The player isn't employed by England either so there is no contract there!  

The players are employed by England. This is in addition to their employment with their clubs.

Do they have an England contract? Or are they employed more like on a consultancy basis?

I haven't heard of any England players either renewing or not having England contracts renewed. It's just selection based on a subjective assessment of the best person to get the job done (according to the selectors/coach).

HongKongCherry wrote:

Ozzy3213 wrote:Employment Tribunal:  Mr Lancaster, are you not selecting Mr Easter because of his age?
 
Bomber: No m'lud, I'm not selecting him because he lacks pace and I am trying to build a mobile pacy pack.  I also have question marks around his attitude after comments made by him in the dressing room at the last World Cup and therefore I do not want him as part of the squad.
 
Case closed, no case to answer.

That wouldn't hold up in an employment tribunal.  Pace and attitude doesn't stop him delivering the role of a no.8.

I appreciate this is all conjecture, but from an employment perspective people who are less capable than him are being selected ahead of him.

Less capable, according to you. Selection is subjective, as is form, and the coach/selectors are given that responsibility and freedom to choose who they want. Someone else can't choose the team for them. In fact , if someone else did then that might be a whole new employment tribunal right there brought to court by the coach for not being allowed to fulfil the responsibilities of his role/contract.

Griff wrote:

HongKongCherry wrote:

Ozzy3213 wrote:Employment Tribunal:  Mr Lancaster, are you not selecting Mr Easter because of his age?
 
Bomber: No m'lud, I'm not selecting him because he lacks pace and I am trying to build a mobile pacy pack.  I also have question marks around his attitude after comments made by him in the dressing room at the last World Cup and therefore I do not want him as part of the squad.
 
Case closed, no case to answer.

That wouldn't hold up in an employment tribunal.  Pace and attitude doesn't stop him delivering the role of a no.8.

I appreciate this is all conjecture, but from an employment perspective people who are less capable than him are being selected ahead of him.

Less capable, according to you. Selection is subjective, as is form, and the coach/selectors are given that responsibility and freedom to choose who they want. Someone else can't choose the team for them. In fact , if someone else did then that might be a whole new employment tribunal right there brought to court by the coach for not being allowed to fulfil the responsibilities of his role/contract.

moreover, selection can be for developmental reasons, which is precisely discriminatory on the basis of age. but is legally completely acceptable in sports selection.

and that is primarily why Easter is not in it. in 18 months he is not going to be fitter, faster or less prone to injury.

Quins, that was the question I was asking, is sport exempt from certain employment legislation? You say it is legally acceptable, is this something you know for sure, as development reasons wouldn't be acceptable in the normal workplace.

Griff, not being able to fulfill your role is not subject to employment tribunals unless it was for discriminatory reasons.

Griff wrote:

Exiledinborders wrote:

Griff wrote:This is why employment law doesn't always trump sport.  You can't force a national coach to pick a player.  The player isn't employed by England either so there is no contract there!  

The players are employed by England. This is in addition to their employment with their clubs.

Do they have an England contract? Or are they employed more like on a consultancy basis?

I haven't heard of any England players either renewing or not having England contracts renewed. It's just selection based on a subjective assessment of the best person to get the job done (according to the selectors/coach).

The exact nature of the contract is irrelevant. It is just as illegal to discriminate on the awarding of consultancy contracts as employment contracts.

Of course all of this irrelevant. There are good reasons not to choose Easter based on his dressing room comments after last world cup.

HongKongCherry wrote:Quins, that was the question I was asking, is sport exempt from certain employment legislation? You say it is legally acceptable, is this something you know for sure, as development reasons wouldn't be acceptable in the normal workplace.

Griff, not being able to fulfill your role is not subject to employment tribunals unless it was for discriminatory reasons.

you can't explicitly use age as a criteria in EPS inclusion, no. But you can 100% base EPS selection on anticipated ability in 2 years time when RWC takes place. no need to actually mention age.

so no sports wouldnt be specifically exempt from age discrimination, but then it wouldnt need to be, because the myriad reasons for selection are highly subjective, and in order to show age discrimination you need to prove that you were MORE capable and qualified for the job contract than the younger person. impossible to "prove".

Quins, I completely understand your point and just to clarify I agree with what Lancaster is doing. My point is purely from a legal perspective and it would be great if anyone could give a clear insight to this. But from an employment law basis in general you'd only need to show you were as capable and not more and selecting the EPS on ability 2 years hence again would, if transfered to companies, make them open to age discrimination claims.

From a legal perspective are they allowed to have an England team? I.e. Under European law are they allowed, legally, to discriminate against non-English people? Could I challenge, in a court of law, my right to be selected? Bizarre, but maybe possible?

Easter has always been too slow and never a international standard player. Thats the issue. Another player like many who is a great club player but who looks less than ordinary when playing internationals. he is just fooling himself.

HongKongCherry wrote:

Ozzy3213 wrote:Employment Tribunal:  Mr Lancaster, are you not selecting Mr Easter because of his age?
 
Bomber: No m'lud, I'm not selecting him because he lacks pace and I am trying to build a mobile pacy pack.  I also have question marks around his attitude after comments made by him in the dressing room at the last World Cup and therefore I do not want him as part of the squad.
 
Case closed, no case to answer.

That wouldn't hold up in an employment tribunal.  Pace and attitude doesn't stop him delivering the role of a no.8.

I appreciate this is all conjecture, but from an employment perspective people who are less capable than him are being selected ahead of him.

Bro, picking a national team is not about picking the best players.  It is about picking the group of players which the coaches and management believe gives them the best chance to meld together into a team and win.  The sum of the players being better than the parts.  The decision is somewhat subjective, there are no rules or procedures.  In this context it seems to me age discrimination cannot be proven.  To that end, whether it is popular or not, everyone knows Jonny is just a phone call away if Farrell et al get injured, and it's possible would have traveled with the Lions if not injured.

TJ wrote:Easter has always been too slow and never a international standard player.  Thats the issue.  Another player like many who is a great club player but who looks less than ordinary when playing internationals.  he is just fooling himself.

Laughable.

Yes he isnt the quickest, not by a long shot. He was an 'unlucky' captain as well. But he has every other required skill in abundance. Go look at some 6N stats when he was playing and see where he ranked. Quickness of brain can often be a good substitute for quickness of foot anyways.

Wasn't a great carrier at international level for me (just watching don't know if the stats back that up) which is what England are primarily looking for in their 8 i think. Bringing Easter back into the setup changes the dynamics of the backrow too much for me. One thing I heard was that Easter was slightly old school in his outlook (again don't know if thats true) and not the model professional. Personally i think someone like Garvey has more reason to be upset.

Ozzy3213 wrote:Employment Tribunal:  Mr Lancaster, are you not selecting Mr Easter because of his age?
 
Bomber: No m'lud, I'm not selecting him because he lacks pace and I am trying to build a mobile pacy pack.  I also have question marks around his attitude after comments made by him in the dressing room at the last World Cup and therefore I do not want him as part of the squad.
 
Case closed, no case to answer.

I know we have a few boys nearing retirement where I work, and they are starting the whole, they can't get rid of men thing. The truth is, even in the everyday job that we do, the employer can (in most cases) argue that there is a fitness / eyesight / hearing requirement for the job, and that it is not the employees age that is an issue, but their abilities to do the job.

Given that form in rugby is very much subjective (look at the numerous accusations/counter accusations regarding Lydiate's form at Racing) depending on what you expect from a player in a position, and what the player is actually doing. Easter would not have a leg to stand on if Lancaster were to say that he is selecting on pace, or offloading, or ability/attitude to work with the surrounding players, or even the knowledge of the set piece calls.

Apart from the fact Lancaster openly said a few seasons ago he wouldn't be picking anyone older than 30 because he was looking towards the RWC.

Given age and lots of things I wouldnt want Easter ahead of Morgan (if he finds some form) or BV, but as has often been said he would have been a much better choice than Wood at no.8 post Morgan injury last 6N.

As for how he would fit in with the rest of the team, we dont know enough about what happens on the training pitch to know how that would work out. But he did play for England for several years and captained them too (however 'unlucky') He is a leader who plays alongside current England internationals. He is also very good at offloading.

lostinwales wrote:...as has often been said he would have been a much better choice than Wood at no.8 post Morgan injury last 6N...

Especially so in the match against Italy when Lancaster selected Care, his club scrum half, in the starting XV.

I always thought Easter's World Cup comment was just a reflection of his black sense of humour rather than any money-fixation. I would have been tempted to keep him involved with England over someone like Waldrom or Crane for his footballing brain. He also has a sweet offload which some of our younger forwards might learn from. No point looking at him now except in an emergency.

It's not impossible: England called on Nigel Redman to play the All Blacks when four or five locks ahead of him all went down sick or injured. Mind you, Lancaster seems more inclined to stick exclusively with his EPS selections so would probably make do and mend again.

There are avenues for sportsmen to contest selection decisions. Quite a few Olympic squad rejects went to arbitration and I think some won. All those cases were heard by the Court of Arbitration for Sport (CAS).

Rugby Fan wrote:

lostinwales wrote:...as has often been said he would have been a much better choice than Wood at no.8 post Morgan injury last 6N...

Especially so in the match against Italy when Lancaster selected Care, his club scrum half, in the starting XV.

I always thought Easter's World Cup comment was just a reflection of his black sense of humour rather than any money-fixation. I would have been tempted to keep him involved with England over someone like Waldrom or Crane for his footballing brain. He also has a sweet offload which some of our younger forwards might learn from. No point looking at him now except in an emergency.

It's not impossible: England called on Nigel Redman to play the All Blacks when four or five locks ahead of him all went down sick or injured. Mind you, Lancaster seems more inclined to stick exclusively with his EPS selections so would probably make do and mend again.

There are avenues for sportsmen to contest selection decisions. Quite a few Olympic squad rejects went to arbitration and I think some won. All those cases were heard by the Court of Arbitration for Sport (CAS).

The difference there is that for Olympic events there is a qualifying criteria, which those athletes had met, and were then excluded from the squad on some other grounds. They successfully argued that they had qualified on merit and therefore should be included. Selection for a place in a rugby team is not based on the same principles.