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Fighting racism in football

Racism is disproportionately present on the football pitch with fans, players and officials alike under the spotlight. Andrew Priest and Edwin Moore-Gillon of Davenport Lyons have been part of an initiative to stop it.

Fifpro was set up in 1965 for purpose of challenging what was then a highly restrictive transfer system Mitch Gunn

Kick It Out is football’s equality and inclusion campaign. It is a charitable organisation in the UK which has been tackling discrimination in the game over the last 20 years when it was initially established under the brand name ‘Let’s Kick Racism Out of Football’. As part of its commitment to combat discrimination and racism in football, Kick It Out has developed a mobile app which is free to download on Apple and Android devices. The app is backed by The Football Association (FA), the Premier League, the Football League and the Professional Footballers’ Association.
Reporting tool
The app contains a reporting tool which allows members of the public to report acts of discrimination which they see or hear at football matches, both on and off the pitch. These incident reports can be made at all levels throughout the game, from matches in the Premier League to games at the grassroots level of the sport. It is also possible to report incidents via the Kick It Out website.
How it works
Each incident report submitted using the app will contain details of the football match where the incident took place, and allow an individual to provide brief details of the type of discrimination which was seen or heard. There is no registration process for the app and there are no age restrictions on its use. The intention is that details of any incident can be reported confidentially and anonymously (although the app does contain a section which allows individuals to submit their personal information if they choose to do so). An incident report will also contain geo-locational data relating to the location of the incident to assist in identifying the alleged offender(s). Even if an incident report is submitted anonymously, the unique identifier (IMEI number) of the phone from which the report was sent can be traced and retrieved.
Taking action
Each incident report will be sent to Kick It Out, and then to (1) the stadium where the match is taking place (2) the FA, and (3) the applicable football league. Each football ground which receives an incident report may pass the information to its stewards. If they have grounds to believe that discriminatory activity has taken place, they may choose to eject an individual or a group of individuals from the match. If requested, Kick It Out will provide the incident report details to the police, who can trace an individual through the IMEI number of the phone. The extent to which the police might become involved in hoax complaints is currently unclear.
Apps and the law
As a law firm specialising in IP and technology matters, we regularly advise individuals, customer businesses and developers on the development and exploitation of mobile apps. In assisting Kick It Out, we considered the legal and commercial aspects surrounding the launch and roll-out of the reporting tool, both via the web and on the app, and drafted appropriate Terms and Conditions of Use and a Privacy Policy for the app. These set out the terms on which the app can be used (with restrictions on such use), how the app works (in relation to each operating system), who owns any intellectual property rights in relation to the app, the information which may be collected and how that information might be used.
Data collected
Kick It Out, like many businesses and charities, uses mobile apps to interact with, and collect data from, the public. Such data can include (a) information from a report or any survey data provided by the public, (b) geo-locational data or an IP address, (c) personal contact details and (d) details of how the app or website is used by each individual and any transactions which they make.
In collecting such data, entities often become data controllers under the UK’s Data Protection Act 1998. Their websites and apps will accordingly need a Privacy Policy to set out what data is collected, how it is collected and stored, what it is used for, who may access it and any third parties to whom the information may be provided. It is also necessary to set out details of any cookies which may be used, and the purposes for which they might be used. If the parameters of the tool or its applications change, it may become necessary to update the privacy policy to reflect this. It is also important to remember that the app will have to comply with the rules and approval processes for each app store.
Racism and the law
While the Kick It Out app is certainly very innovative, we need to be clear that it has not been developed because there have been recent changes in the law regarding discrimination in football. The law remains very much the same and it has done for the last few years or so. It is, however, worth re-visiting some of the relevant legislation and highlighting how that is being used in the UK to combat racism in football. We focus in particular on racism, not because other forms of discrimination are not just as important, but because racism in football remains the most high profile form of discrimination in the modern game.
Disorderly conduct
The Football (Offences) Act 1991 was introduced to deal with disorderly conduct by persons attending football matches and, in particular, racist chanting at any match in the Premier League, the Football League or the Conference. An offence is committed when a group of people, or even one person acting alone, engages or takes part in chanting which is threatening, abusive or insulting to another person because of that person’s colour, race, nationality or ethnic origin. The chanting does not have to have been directed at a particular individual or group, although it will often be directed at an individual player or players. If convicted, the person or persons concerned are likely to be fined and may also be banned from attending matches in the UK and abroad.
Outside the football ground
In practice, racist chanting often takes place outside of the football ground, either on the way to the game or after the final whistle. The racial abuse may also have taken place at an amateur game (in which case the Football (Offences) Act 1991 will not apply). In these circumstances the person or persons concerned may be guilty of one or more racially aggravated public order offences under the Crime and Disorder Act 1998 (as amended). That Act created a number of specific offences of racially aggravated crime based on ‘basic offences’ involving assaults, criminal damage, harassment and threatening or abusive behaviour. Conviction for a racially aggravated crime increases the seriousness of the ‘basic offence’ and is likely to result in heavier sentencing. The behaviour in question may also give rise to an offence under the Public Order Act 1986 (as amended) if it was threatening, abusive or insulting and was intended to, or likely to, stir up racial hatred. Whether or not a person is charged with an offence under this Act will very much depend on the context in which the behaviour in question took place.
Malicious communications
An offence can also be committed under the Malicious Communications Act 1988 (as amended) where race-related harassment involves the sending of offensive or threatening letters, emails, texts or other electronic communications. Likewise, sending “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” will be an offence under the Communications Act 2003 (as amended). A fine of up to £5,000 and/or up to six months in prison awaits anyone found guilty under this ‘communications legislation’.
Football clubs called to account
The UK now has a wide range of offences to deal with crimes where the offender is motivated by hostility or hatred towards a person because of their skin colour, nationality, religion or ethnicity. It is not just individuals or groups of individuals who are caught up in these race-related offences. Football clubs are now being increasingly held to account for the behaviour of their so-called supporters. Last year FIFA, world football’s governing body, introduced tougher anti-racism measures which could see teams suffer points deductions, relegation or expulsion from competitions where there are serious or repeat offences committed by these so-called supporters. Whilst the introduction of those measures is to be applauded, it is going to take more than the imposition of financial penalties on clubs or football authorities before these new measures result in a significant reduction in racist behaviour at certain clubs or in certain countries.
We also need to bear in mind that it is not only football supporters who may be prosecuted for racist behaviour. Players, managers and other club officials are also responsible for their actions on the pitch and for any comments they may make in the media (which includes social media). The anti-racism charity, Show Racism the Red Card, believes that there is a tendency for those involved in football to make excuses for players involved in racist incidents on the football pitch. Recent high profile cases have shown that it is no longer acceptable for players to be able to say what they like on a football pitch and then later argue that being angry or under pressure is a legitimate excuse for racial abuse.
Final thoughts
Even though discrimination based on race is illegal in the UK, it is clear that in our society as a whole racial discrimination still exists in many people’s thoughts, attitudes and actions. It is unfortunate that football, perhaps more so than any other sport, has seen a disproportionate amount of those thoughts, attitudes and actions being expressed in and around football matches. Understanding the laws relating to racism is one thing, but doing something to tackle racism is quite another. Let us just hope that the Kick It Out app becomes an important tool in helping to eradicate incidents of racial discrimination from our beautiful game. 
Andrew Priest  is a Partner and Edwin  Moore-Gillon is a solicitor in London law firm Davenport Lyons's IP & Technology Group

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16 August 2013

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