Jake Daniels shows coming out in football’s coming home

Posted: 27/05/2022

Following on from his previous article about Australian A-League footballer Josh Cavallo, associate Tom Pimenta discusses the recent decision of Jake Daniels to come out publicly, and the potential wider implications for footballers and their clubs from an employment law perspective.

In October 2021, Adelaide United midfielder Josh Cavallo became the only active top tier male footballer to come out. On 16 May 2022, there were further positive strides taken as 17-year-old Blackpool striker, Jake Daniels, made the brave decision of announcing to the public that he was gay.

Jake Daniels

In an interview with Sky Sports News, Daniels explained: “I am hoping that by coming out, I can be a role model, to help others come out if they want to. I am only 17 but I am clear that this is what I want to do and if, by me coming out, other people look at me and feel maybe they can do it as well, that would be brilliant.

“If they think this kid is brave enough to do this, I will be able to do it too.

“I hate knowing people are in the same situation I was in. I think if a Premier League footballer does come out that would just be amazing. I feel like I would have done my job and inspired someone else to do that. I just want it to go up from here. We shouldn’t be where we are right now.”

Whilst Josh Cavallo led the way for other professionals to follow, and other athletes are starting to come out in other leagues, Daniels can be the icon to raise the profile in the British game. His decision is brave enough given the high-profile nature of English football. However, his statement is even more important given his age and the length of career ahead of him. The previous trend, as set out in the earlier article on Josh Cavallo, mainly tended to show that male footballers did not feel comfortable coming out until after they had retired from football, or at least towards the end of their careers, with notable examples including Thomas Hitzlsperger and Robbie Rogers.

Hopefully, though, Daniels (17) and Cavallo (21 when he came out) have embedded a lasting legacy within the modern game by removing any stigma to being a professional male footballer and being gay. The two should not be mutually exclusive and the men’s game could learn a lot from the women’s game in this regard. At the 2019 FIFA Women’s World Cup, there were just 24 teams, but 40 participants were openly gay or bisexual.

The legal position

As set out in the previous article on Josh Cavallo, sexual orientation is a protected characteristic under the Equality Act 2010, and so there are a number of legal claims that could arise in relation to homophobic treatment, including:

• Direct discrimination– homophobic comments or negative treatment from teammates, coaches, members of staff or even third parties because of the complainant’s sexuality.
• Harassment– unwanted conduct related to someone’s sexuality that has the purpose or effect of violating a person’s dignity or creating a hostile, degrading, humiliating or offensive environment would amount to unlawful harassment.
• Victimisation– if a player was subjected to a detriment, for example, not being selected for a match, as a result of having raised an allegation of discrimination, then this would amount to victimisation.

Through vicarious liability, these claims can be brought against the employing football club, where the discriminatory act occurred in the course of the complainant’s employment.

In certain circumstances, these claims can also be raised against an association like the FA, a service provider such as the club’s shop, or even against the individuals themselves who made the discriminatory comments. Successful discrimination claims can result in uncapped damages and potential claims for personal injury, depending on the impact on the individual’s physical or mental health. However, given the relatively short playing career for most footballers, it is possible that the stigma of pursuing a claim, and the challenge of continuing to play afterwards, as a result deters most players from seeking protection through an employment tribunal.

Daniels’ ongoing legacy

The true significance of Daniels’ announcement will only be apparent in the coming years. However, the initial signs are positive. Former footballers Rio Ferdinand, Gary Lineker and Jamie Carragher, along with Boris Johnson and Prince William, have lauded Daniels’ decision and bravery to come out, with many more high-profile names sending their congratulations to Daniels with each day since his announcement.

As the profiles of Daniels, Cavallo, and hopefully many others rise and they continue to educate and raise awareness, this should lead to players being judged solely on their footballing ability and not on their sexuality. Recently, Daniels’ teammate at Blackpool, Marvin Ekpiteta, wholeheartedly apologised for his historic homophobic tweets following the announcement by Daniels. This is a sign of progress but does show the attitudes that the likes of Daniels and Cavallo have had to overcome to be open about their sexuality.

When asked about the possibility of facing abuse on the terraces, Daniels explained: “Of course I am aware that there will be a reaction to this and some of it will be homophobic, maybe in a stadium and on social media.

“It’s an easy thing for people to target. The way I see it is that I am playing football and they are shouting stuff at me, but they are paying to watch me play football and I am living my life and making money from it. So shout what you want, it’s not going to make a difference.

“I won’t stop people from saying that stuff, I just need to learn how to not let it affect me.”

Whilst equality in football is still in the balance, with more talismanic figures like Cavallo and now Daniels, hopefully it is only a matter of time before this tips and victory for equality prevails.

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