English rugby player, Joe Marler, was surprisingly available to play in his country’s Grand Slam winning finale in Paris on Saturday after avoiding a ban from a Six Nations disciplinary hearing regarding the racist remark made towards a Welsh player during the Anglo-Welsh Six Nations clash at Twickenham.

Marler admitted to using the phrase “oi, Gypsy Boy” during an on-field altercation between both sets of players. Welsh forward, Samson Lee, has previously spoken publicly of his Traveller heritage.  The slur was picked up on the referee’s microphone and clearly audible for the commentators and millions of viewers tuning in.

The disciplinary panel noted that Marler had apologised to Lee and been reprimanded by English coach, Eddie Jones. Whilst not condoning racism, the panel also have accepted that the comment was made “in the heat of the moment”.

The utterance of such a phrase during a live sporting event has provoked a range of reactions from the rugby and travelling communities. The news that Marler will face no disciplinary repercussions has provoked further debate about how the panel and wider society views different forms of racism against various ethnic groups. The sport’s governing body, World Rugby, has subsequently intervened to request an explanation from the disciplinary panel as to why they reached their unusual decision.

Mixed Reactions

Shortly after the game, England’s Rugby Football Union issued the following statement:  “Joe spoke to Samson at half-time to apologise and he was reminded by Eddie Jones of his responsibilities as an England player after the game”. Jones has also conceded that Marler made a “mistake”.

Wales’ assistant coach, Rob Howley, has expressed his view that there is no place for racism in the sport. At a subsequent press conference, Wales’ head coach, Warren Gatland then controversially referred to the comment as “a little bit of banter”. He went on to explain that: “It's not just in sport, I think it's in every aspect of life where people get so PC and just make massive issues about things”. 

Gatland said that 15 or 20 years ago, such incidents would have traditionally been resolved “by fists and stuff” but he accepts that in the modern game, players have to be careful when antagonising opponents because microphones pick up such comments live on air.

Gatland may be correct about the historic ‘handbags’ such remarks used to spark during matches. However, the sport has evolved under a media spotlight where players are aware that on-field violence will carry repercussions and disciplinary sanctions. Similarly, rugby has supposedly adapted to the modern era and has a disciplinary code that allegedly treats incidents of racism with appropriate severity. Thus, the failure to ban Marler has bewildered many commentators, pundits and evidently, World Rugby itself.

Earlier last week, founder of the National Alliance of the Gypsy, Traveller and Roma women, Shay Clipson, wrote to the Rugby Football Union and Six Nations to complain about the incident and stated Marler “cannot make mistakes like that and expect to just say sorry and walk away". She added that the public had to imagine what the reaction would have been had a black or Asian player been subject to that sort of derogatory remark.

Ms Clipson was incensed by Gatland’s comments and the disciplinary panel’s decision. She explained that a derogatory reference to Lee’s Traveller heritage equates to any slur about the colour of another player’s skin. Obviously, the Six Nations panel did not agree.

Perhaps Gatland and the panel have considered that, in today’s media, the term ‘Gypsy’ is commonly used in a non-derogatory manner? After all, World Heavyweight boxing champion, Tyson Fury proudly entitles himself “The Gypsy King” while Channel 4 airs television series with titles such as “My Big Fat Gypsy Wedding”.

Gatland and others feel political correctness has gone too far in modern society. Yet, it is the aggressive context of the remark that Clipson has taken issue with as well as criticising Gatland’s remark as condoning the issue. She has also sought advice from the Equality and Human Rights Commission. Gatland later apologised for his description of the slur as ‘banter’, with the explanation that Lee had accepted Marler’s apology and was not offended by the remark.

Football has had its share of racial allegations like those made against John Terry and Luis Suarez. Such incidents are relatively rare in rugby but, unfortunately, the sport does have a history of racism in South Africa. Closer to home, it is documented that the infamous 1990 ‘Grand Slam’ decider between Scotland and England included the first admitted case of an international rugby player hurling a racial slur at another when Scott Hastings made a remark to a black English player, Jeremy Guscott. Guscott, now a BBC pundit, has stated that it is “inappropriate” for Marler’s half-time apology to Lee to be deemed as sufficient without a ban.

The Law

In weighing up whether or not Marler’s comments (malicious or not) do merit a ban, it helps to turn to the relevant law.

Firstly, the ‘laws’ of rugby - World Rugby Regulation 17, Law 10.4(m) deals with verbal abuse of players based on religion, race, colour or national or ethnic origin.  Players found guilty of engaging in such verbal abuse face a minimum four-week ban, with the maximum sanction running 52 weeks for more serious offences.  

Secondly, Section 4 of The Equality Act 2010, prohibits discrimination of another on the grounds of any of 9 ‘protected characteristics including one’s race. ‘Race’ is defined under section 9(1) as groups identified by colour, nationality and national origin. This definition therefore includes members of the Roma and Irish Travelling community. 

From a legal perspective, the incident also provokes consideration of a number of hypothetical issues:

Would a ban perhaps have been imposed had the remark been made against a black or asian player? Should we differentiate between different racial groups in such circumstances? What if Lee was not actually of Traveller heritage and therefore not protected by the characteristic of ‘race’ under the Equality Act? What if a witness to the incident, such as another player, or even a viewer, heard the comment and was offended?

Such incidents can have serious financial and reputational consequences, particularly when they result in legal proceedings. Employers, service providers and sporting governing bodies must be aware that individuals can raise claims for discrimination or harassment, even if they are not a member of a protected group under the Equality Act. For example, an individual could raise a claim of ‘perceptive discrimination’ where they feel discriminated against because another person thinks they are of a particular ethnicity.

Further, employees can complain about behaviour that they find offensive related to a relevant protected characteristic, even if they do not possess that characteristic themselves or if they are simply associated with others who do fall into that group.  In terms of the Equality Act, jokes or remarks about a colleague or a particular group could amount to harassment if the comment has the effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

Finally, section 29 of the Equality Act prohibits providers of public services from doing anything that constitutes discrimination, harassment or victimisation of service users. ITV, who aired the match is a public service broadcaster and watchdog, Ofcom, received one complaint from a member of the public about Marler’s comment. A spokesman for Ofcom said the matter is now under consideration before any decision is made on further action. Arguably, if the complainer is not satisfied with the regulator’s decision, they might seek to raise a discrimination or harassment claim under the Equality Act.

Mitigating The Risks

Eddie Jones’ was correct in his assertion that we live in a “new world”. Racial jibes are not acceptable in modern society, regardless of how they are intended. The laws of the sport and the United Kingdom legislate against such behaviour. Marler’s comments fall within the definition of unlawful discrimination and arguably ought to have resulted in a ban, regardless of whether Lee has accepted the apology or is personally offended.

The above scenarios demonstrate the sensitive and complex nature of racial discrimination. It is a topic organisations of all sizes and across all sectors must take measures to safeguard against. Case law has established that employers can be held vicariously liable for the discriminatory actions of their staff.

Of course, businesses can never fully prevent this risk but they can mitigate against liability by ensuring that they have taken all reasonable steps to prevent such behaviour from occurring. That might include maintaining an up-to-date equal opportunities policy and providing anti-discrimination training to staff to demonstrate a proactive commitment towards discouraging workplace discrimination. The RFU and Welsh RFU may well remind their employees of these policies in the near future.

It now looks likely that Marler will face a retrospective sanction from World Rugby but the failure to address the matter promptly and efficiently has already damaged the sport and the Six Nations’ disciplinary integrity.  

The on-field campaign for England has successfully concluded with victory. However, World Rugby’s announcement does not signal the end of the matter for the Welsh and English Rugby Unions, or Marler himself.

The two nations are set to meet again at Twickenham on 29th May. In light of recent events, one suspects the English forwards will remained rather tight-lipped during any exchanges of on-field ‘banter’ with their neighboring adversaries.