Football and Anti-Gay Bigotry in the European Union

The Romanian tycoon George Becali is principal owner of Steaua Bucharest, the country’s most renowned football club, and a man with a reputation for egregious bigotry.

In 2010, Becali announced that his club would not employ a Bulgarian football player who was rumored to be gay. He explained he would rather close the whole club down and would sooner employ a more junior player, a troublemaker or a drunk. Becali, who heads a right wing Christian political party, has a history of making similar racist, sexist and homophobic statements. He once made headlines when he prohibited the playing of songs by the rock band Queen in the Steaua stadium on learning the widely-known fact that the group’s lead singer, the late Freddie Mercury, had been gay.

A Romanian LGBT rights organization decided to challenge Becali, arguing that he was violating national and European law forbidding discrimination on grounds of sexual discrimination.

The group, Asociaţia ACCEPT, complained against Becali and the football club to Romania’s National Council for Combating Discrimination, the state authority empowered to impose fines for discrimination.

Before the council, Becali did not dispute the reports of his anti-gay statements. Indeed, his lawyer argued that the statements were legitimate. The council upheld the complaint against him, but only imposed a written warning. This is common when high-profile politicians are brought before the council, which has been criticized for its lack of independence from the state. The council rejected the request to fine Becali, because of a Romanian law limiting fines to events less than six months old.

But the national council completely rejected the complaint against the club. The club did not disagree with Becali but argued—through the same lawyer who represented Becali—that Becali’s statements could not be attributed to the club since he was not their appointed representative. They also argued that shifting the burden of disproving discrimination to the club would impose an impossible burden on the club (“probatio diabolica”). They said an allegation of this kind could only be disproved by showing the club employs gay people. Ironically, the club protested that this would require disclosure of the private matter of sexuality.

The council accepted the club’s case—a decision which should be viewed as shocking in an EU country. There was clear evidence that the club was opposed to recruitment of gay staff—this was shown by Becali’s statements to this effect. The club had the opportunity to show that Becali’s views did not reflect the way the club actually worked. But the club did not even acknowledge that he was wrong. It did not claim that it had instructed its recruiting staff and agents not to discriminate. Its argument that the only defence would be proof of gay staff is ludicrous.

Becali’s statements may well have imposed an impossible burden on the club, but only because they were such convincing evidence of its discriminatory position.

The national council’s decision that a fine was time-barred is surprising. Article 17 of the European Union’s Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation requires Romania, as a member state, to have a system of “effective, proportionate, and dissuasive” sanctions to combat employment discrimination. Romanian law allows individual victims of discrimination to seek compensation: there is no six-month time limit for this. The law also allows for civil society groups to complain where no victim has done so. This is an important means of challenging anti-gay discrimination where a victim’s complaint may turn their sexuality into the subject of public discussion.

Limiting fines to the cases which the Commission can complete within six months of the event undermines the effectiveness of the complaint procedure. The complainant needs time to prepare the complaint and fairness to the parties may require that they be allowed time to respond. This may reasonably take longer than six months. This time limit makes sense in Romanian procedures where the fine is imposed by a state body like a police officer or municipal authority. It seems contradictory to apply it where the fine-making body has a quasi-judicial procedure.

ACCEPT appealed from the council to the Bucharest Court of Appeal. The Court referred questions to the Court of Justice of the EU in Luxembourg in Case C-81/12 Asociația ACCEPT v Consiliul Național pentru Combaterea Discriminării, which will be heard on January 23.

The issues the case raises have significant implications for how anti-gay discrimination can be proved and punished in the EU. The court’s jurisprudence on employment discrimination based on sexual orientation has so far addressed only same-sex couples’ pension benefits (Römer and Tadao Maruko).

In its Feryn judgment, the Court of Justice made clear that EU law prohibits employers from stating that they will not employ certain racial groups. The court can use its judgment in this case to make clear that discriminatory statements by a person in Becali’s position are enough to condemn the employer concerned for discrimination. Anti-gay statements are evidence of anti-gay practices. Employers associated with such statements must disown them and prove that when considering recruitment they treat people equally. Significant financial punishment is an important means of dissuading discrimination. Becali had received several warnings from the council—but to no dissuasive effect. Employers should not benefit from strict time limits to evade punishment.

This case gives the court the opportunity to affirm the demands placed upon member states by the EU’s commitment to equal rights for gay men and lesbians—while also sending a strong signal to the world of European soccer that remains deeply tarnished by endemic homophobia. This promise requires member states to publicly condemn and effectively punish individuals and bodies—no matter how powerful—who would bar access to employment on grounds of sexuality.

This case is a part of the strategic litigation program of ACCEPT Romania, supported by the Human Rights Initiative of the Open Society Foundations. Open Society Justice Initiative are legal advisors to ACCEPT before the Court of Justice of the European Union. We do not represent ACCEPT and the views in this blog should not be taken to be the views of ACCEPT.

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