Brussels, 26/04/2013 (Agence Europe) - The homophobic statements by the owner of a professional football club may shift the burden of proof onto the club to prove that it does not have a discriminatory recruitment policy. In this respect, the appearance of discrimination based on sexual orientation may be refuted by a body of consistent evidence.
This was the ruling reached by the EU Court of Justice on Thursday 24 April (case C-81/12), in response to questions referred to it by the Court of Appeal in Bucharest, which called upon the CJEU to interpret the directive on equal treatment with regard to employment (200/78/EC). Accept, a Romanian association for defending gay rights, lodged a complaint with the National Council for Combating Discrimination (CNCD) against the football club FC Steaua and Mr Gigi Becali, the owner of the club. The CNCD punished Becali with no more than a warning for harassment, not for recruitment discrimination. Becali had, however, said he would never hire a homosexual player. Unlike CNCD, the association Accept felt that the club had not distanced itself from those statements that could be considered discriminatory for recruitment. The Romanian court asked whether the directive was applicable in this case to the club, in its capacity as employer, and whether it is incumbent upon the club, as the defending party, to prove that it does not have a discriminatory recruitment policy (in line with the directive).
The Court answers that the directive is applicable to statements which, in the case in hand, related to conditions for access to employment. The specificities of the recruitment of professional footballers are irrelevant in that regard because sport constitutes an economic activity which is covered by EU law. As regards the position of FC Steaua, the Court maintains that the mere fact that statements such as Becali's do not come directly from a given defendant is not necessarily a bar to establishing, with respect to that defendant, the existence of facts from which it may be presumed that there has been discrimination. Finally, it specifies that the burden of proof, as set out in the directive, does not require evidence which is impossible to adduce without interfering with the right to privacy. The appearance of discrimination based on sexual orientation could be refuted with a body of consistent evidence (distancing from discriminatory declarations, express provisions of promotion and parity in the employer recruitment policy), without, however, a defending party having to prove that persons of a determined sexual orientation have been recruited in the past. (FG/transl.jl)