Making vaccination mandatory for players would bring ‘raft of legal issues’

Callum Robinson's vaccination stance has created a storm that neither the player nor the FAI would have anticipated going into the current round of international fixtures
Making vaccination mandatory for players would bring ‘raft of legal issues’

James Cox

Callum Robinson's vaccination stance has created a storm that neither the player nor the FAI would have anticipated going into the current round of international fixtures.

Sports stars are seen as role models so any reluctance to get vaccinated is always going to be a big talking point, but Robinson's admission has sparked a lot of controversy with fans, journalists, other players and even politicians getting involved.

The West Brom striker was the driving force behind a 3-0 victory over Azerbaijan in Baku, Stephen Kenny's first competitive win as manager, but if some people had their way he wouldn't have even been involved due to his decision not to take the Covid vaccine.

Sports lawyer Jonny Madill told BreakingNews.ie that such a scenario would leave the FAI, or any sporting organisation who attempted it, open to litigation and claims from players.

“Some people will say then why don’t the FAI make being double jabbed a condition of being selected, the problem with that is first of all the Irish or UK governments haven’t published any specific guidance on vaccinations and their implication on sport and sport participation,” he explained.

“What that means is, sports don’t really have any powers to force any individual to be vaccinated. In a sporting organisation, if a sport decided it wanted to go down the route to effectively force individuals to be vaccinated, or making vaccination a pre-condition of participation, there would be a number of legal risks with that approach.

Big legal issues

“There are three or four principle legal risks if a sporting organisation like the FAI decided to take that approach of not picking players, or if a local sports club decided to say they would not allow people to use their facilities unless they were doubled jabbed, then there would be three or four big legal issues.

“The first one is discrimination and equality law, if you were to refuse any individual access to participation you could give rise to a legal claim if that individual has a specific reason for not being vaccinated and if that individual has what’s called a protected characteristic under equality law, so religious belief would be an example, pregnancy, underlying health conditions, disability etc.

“Any of those protected characteristics are included in equality law, meaning there would potentially be a discrimination claim, that’s the first legal risk.”

The buildup to Ireland's clash with Azerbaijan was overshadowed by Callum Robinson admitting he has chosen not to be vaccinated. Picture: INPHO/Laszlo Geczo

He added: “The second one is human rights. The idea that an individual has freedom of choice and a general right to refuse any form of medical treatment, especially a vaccination, that’s a really significant one. Callum Robinson, or any player, can say ‘it’s my general right, it’s my freedom of choice, I don’t want to get a vaccine, but I still want to participate and earn a living’.

“There are a handful of other legal issues, there would be employment law issues, so this is something we’re seeing in Premier League football clubs, A player has an employment relationship with his/her club, if a club turns around and says ‘we’re not going to pick you because you’re not doubled jabbed’ potentially there could be employment law issues there. There would also be data privacy issues because clearly if you make vaccines mandatory you’re handling sensitive personal data, so there’s complex legal issues there, on top of that there are wider ethical and moral issues.

“Yes is the short answer, if any organisation went down the route of forcing participants to get vaccinated or make vaccines mandatory or a condition of participating there would be a raft of legal issues.

“That’s why we haven’t seen any sport take that approach, even though lots would like to be able to, going back to the duty of care point, the duty is to make the environment safe and clearly if everyone is vaccinated there’s a better chance of that and there’s much less chance of transmission.”

Vaccination guidance

Mr Madill, of Sheridan Sports, was involved in the drafting of the official vaccination guidance for Sport England.

He said encouragement and open dialogue is the best route clubs and sporting organisations can go down in terms of vaccination.

He pointed to the IRFU, who recently revealed 99 per cent of players and staff were fully vaccinated.

The FAI was forced to issue a statement after Robinson's remarks, outlining their support of players' “personal choice”.

Mr Madill said this was the best thing they could have done, despite a mixed reaction to the statement.

“I’ve got sympathy for the FAI, their statement was absolutely right, they are effectively saying they are encouraging all of their players from the top of the game to the bottom to get vaccinated to ensure the sport is as healthy and safe as possible, but we have to respect the choice of individuals, and we can’t impose on individuals what is ultimately a personal choice, so it’s a tricky one and sporting bodies and organisations need to get their message right.

“It is that balance, on one hand from a strict legal perspective it is about discharging your duty of care and on the other, and you need to respect the freedom of choice of individuals, so it is a delicate balance. 

“In this case I’m not sure the FAI could have done anything else really, their statement was absolutely right, and they are in a difficult position because I’m sure they would love their entire squad to be doubled jabbed, it makes away trips a hell of a lot easier.”

Some people have argued that Stephen Kenny should only selected vaccinated players, but this approach would present huge legal issues. Photo: Morgan Treacy/Inpho

While Kenny's response was similar, some managers have been more outspoken on the issue of vaccination with Jurgen Klopp being the most high profile example.

Mr Madill feels managers and senior players have a role to play to encourage vaccination among footballers.

“Managers are in a delicate position. There’s no doubt that they are also in a quite influential position, so people like Jurgen Klopp and Nuno Espirito Santo [Tottenham manager] have been quite vocal. Nuno was instrumental in getting the whole Wolves squad vaccinated before moving on. The role of the manager is quite significant in trying to incentivise players to buy into the idea of we’re all in this together, and therefore it’s in everyone’s interest to be vaccinated.

“Some clubs tried to lean on their leaders in the dressing room because the nature of a sport like football is senior players can be influential in lots of different ways and I know that some clubs in England have tried to use their senior players as a way of getting the wider squad to buy into the idea that being vaccinated is in everyone’s interests.”

Robinson covered his ears as he celebrated one of his goals, an apparent nod to the criticism he has received in recent days, but stuck to football in his post-match interview.

However, the debate he has sparked is unlikely to ease despite the fact he did his talking on the pitch in the 3-0 victory.

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