There is a depressing familiarity about the revelation that the Premier League’s Chief Executive, Richard Scudamore, has been involved in exchanging sexist and offensive emails with colleagues and a lawyer friend. After all, this is the game which allows a director of football to go unpunished for suggesting that a female lineswoman should “go and pose for Playboy” and has welcomed Messrs Keys and Gray back into the punditry fold, despite their boorish attitudes towards female colleagues and women in general.  In a week in which a report by the Women's Sport and Fitness Foundation has shown a continuing lack of proper female representation in the top tiers of sports administration, it appears that male chauvinism in football is alive and kicking.

Both the Premier League and the FA have confirmed that they are not intending to take any action over the emails and, despite widespread protests from a range of public figures and bodies, the consensus appears to be that Mr Scudamore is simply too powerful to be forced out.  The Premier League has enjoyed extraordinary commercial success under Mr Scudamore’s stewardship and so the desire to preserve this seems likely to win out over moral arguments in favour of him being disciplined. Indeed parallels can be drawn to Bernie Ecclestone’s tenure at the helm of Formula 1 despite his continuing legal battles regarding alleged bribery and judicial comment, which branded him an unreliable witness. Nonetheless, the Premier League’s inaction also exposes it to potentially legal liabilities, which should be factored into its decision-making.

Mr Scudamore has accepted that he sent and received the emails, which included crude slang references to women, ‘jokes’ about female irrationality and suggestive comments about a female colleague. Under UK law, “sexual harassment” occurs where one employee subjects another to “unwanted behaviour which is of a sexual nature and which has the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. On the face of it, the emails therefore fall squarely within this definition.

Mr Scudamore’s defence is that the emails were sent and received from a “private and confidential email address” and that the temporary PA who leaked them should not have accessed them. However, the PA claims that his emails were sent to her automatically so that she could organise his diary, a claim which Mr Scudamore has not denied. Unless the PA trawled through Mr Scudamore’s private emails despite clear instructions not to do so, it seems reasonable to conclude that she was exposed to these emails whilst using the Premier League’s IT systems in the proper course of her duties, and that she was subjected to sexual harassment as a result. 

It is apparent that Mr Scudamore did not intend these emails to be read by his PA. However, the law is interested in the effect of a harasser’s conduct, as well as its purpose. There is a ‘get out’ where it is not reasonable for the conduct to have the effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (for example, if a victim is overly sensitive or goes out of their way to be offended). However, given the language and attitudes expressed in the emails, it is difficult to see this being applicable in this case. In circumstances where the effect of the emails seems clear and reasonable, Mr Scudamore’s lack of intention is irrelevant in law.

If Mr Scudamore’s conduct does constitute sexual harassment, the next question to consider is the extent to which the Premier League is vicariously liable for his actions as his employer. This will depend on a variety of factors, including whether the conduct took place during the course of his employment or in a personal capacity. Mr Scudamore claims that the emails were private. However, he appears to have used the Premier League’s IT systems to send, receive, view and/or store the emails, and at least one of them made reference to one of his female colleagues. This suggests a sufficiently close connection between the emails and his employment that his employer will struggle to avoid liability for his actions.

The Premier League could also try to avoid liability by demonstrating its commitment to combating discriminatory practices in the workplace. This would include, for example, showing that it operates an up-to-date equal opportunities policy and provides anti-discrimination training to staff, including Mr Scudamore. However, as Mr Scudamore is the most senior member of the organisation and one of only two members of the ‘Board’ responsible for ensuring that its policies are upheld, there are also likely to be significant challenges with this defence.

It remains to be seen whether the individual involved in bringing these emails to light chooses to bring legal proceedings against Mr Scudamore and the Premier League. However, the legal remedies available do not make it particularly attractive for her to do so.

She would theoretically be in line for uncapped compensation but this would largely depend on what losses, if any, she suffered as a result of the conduct. In circumstances where she was only engaged on a temporary basis, these losses are likely to be limited. She might also be entitled to an injury to feelings award, but this is not likely to exceed more than a few thousand pounds. A further remedy would be to ask the Employment Tribunal considering these matters to issue a recommendation for the Premier League to take steps to eliminate or reduce the effects of discrimination on its employees. The scope and framing of such a recommendation would be very interesting (could it, for example, consider the gender breakdown of senior staff?). However, the Tribunals have tended to make scant use of their discretion in this respect and the government is, in any event, proposing to remove this power.

In the circumstances, the PA may feel that her purpose has been served by leaking the emails to the papers, which have presumably compensated her appropriately whilst also allowing her to preserve her anonymity. Given the demonisation that those who have taken on the football authorities in the past have had to endure, frankly, who could blame her? However, at a time when the NBA is demonstrating its commitment to eradicating discrimination in sport by banning LA Clippers owner, Donald Sterling, for life for making racist comments, it is unfortunate that the English football authorities have not so far seen fit to take a similarly strong stance. Whilst they may be able to ride the storm on this occasion, it seems unlikely that behaviours will change unless decisive action is taken by (and, if necessary, against) those at the very top of the sport. Until this is done, it seems only a matter of time until the next sexism scandal rears its ugly head in the beautiful game.