The Case for Reparations for Women’s Football

Abstract

In 1921, the FA banned its affiliated stadia and officials from hosting and officiating women’s football matches, saying that football was ‘quite unsuitable for females’. The ban halted the development of women’s football for the fifty years it was imposed, and the women’s game is still suffering from the ramifications. In this thesis I explore whether the decision to implement the ban was unlawful both today and immediately after its implementation in 1921, before the ink of the Sex Disqualification Act 1919 was dry. On this basis, I explore the potential routes to reparation. I outline the context, i.e. why reparations are so important, and my arguments towards securing reparations, in Chapter 1. I consider in Chapter 2 potential options in litigation with a view to remedying the damage. I then examine potential remedies in Chapter 3, before exploring arbitration and alternative dispute resolution, in Chapter 4. I conclude, in Chapters 5 and 6, that mediation with the FA, undertaken through the Court of Arbitration for Sport (CAS), makes the most practical sense for securing the much-needed redress (as reparations) for women’s football in England.

1. Introduction

This paper will examine to what extent is there a viable case for reparations for women’s football in England and Wales? If no such case exists, how else could the damage of the FA’s 1921 ban be redressed?

 a. The Context - why are reparations needed? 

On 5th December 1921, the English Football Association (the FA) banned its affiliated clubs and stadia from partaking in or hosting women’s football matches (‘the ban’).[1] The ban also prohibited the use of FA-registered officials for women’s football matches.[2] It lasted for half a century, remaining in place until it was lifted in 1971.[3] But by the time the FA finally allowed the women’s game to resume officially, it had been left a shadow of what it once was, and what it could have been but for the ban. Inevitably, the growth and development of women’s football had been (and to a significant extent remains) severely hampered. In the years preceding the ban, women’s football matches were commonplace, with many exceeding 20,000 spectators in attendance, numbers which equalled and sometimes exceeded those of men’s matches.[4] These numbers, of course, were significantly curtailed in the years after the ban was imposed. Meanwhile, the men’s game continued to grow, unimpeded, in all departments – most significantly in terms of participation, attendances, revenue and incomes.[5]

There was, of course, resistance from women’s teams at the time. Indeed, ‘some women’s clubs did continue… but confinement to non-FA affiliated grounds limited potential.’[6] In the wake of the ban, women’s football teams across the country tried to band together and form their own football regulator. This led to the creation of the English Ladies’ Football Association (ELFA).[7] However, for various reasons, such as limited sponsorship funds, ELFA did not last long. It dissolved in 1931, having been effectively dead for some time.[8] With no proper regulator for women’s football, and almost nowhere to host professional matches, the disparity grew between men’s and women’s football. This disparity, brought about as a direct (and, as I argue, intended) result of the FA’s 1921 ban, is the reason why reparations are vital for women’s football. It is the basis for my arguments in favour of reparations.

Even today, the average salary of an elite women’s footballer is staggeringly far behind that of her male counterparts. In 2017, average annual pay for first-team players in the men’s Premier League was ‘£2.64 million… while average pay in the equivalent women’s division… [was] £26,752’. That is an incredible inequality between the men’s and women’s footballers of today. Of course, it’s strongly arguable that there would be a disparity on some scale irrespective of the ban. But I argue that even if there were to be any inequality, it has been drastically exacerbated by the ban. As I argue, this extraordinary imbalance, based solely on gender, is why an exploration of the potential for remedy is essential. However, successfully arguing in law that the FA should pay reparations on this basis, is far from simple. For one, if there were a truly viable case to be brought against the FA, then one might wonder why, apparently, no one did. Moreover, there was certainly a level of support for the ban from some sectors of society, particularly vocally from the Daily Mail of the time.[9]

Nevertheless, I shall in this thesis attempt to argue why the FA should pay (and should consider itself obliged to pay) reparations for the damage it caused with the ban. In the following chapter, I will evaluate the viability of any relevant causes of action, examining both public and private law options. I will go on to discuss in Chapter 3 what form any remedies could take and on what basis. In Chapter 4, I consider potential alternatives to litigation, and weigh up the viability as well as the potential benefits/drawbacks of each. In Chapter 5, I will identify mediation as the strongest option overall for women’s football in England, before explaining how and why I came to choose this. Finally, in Chapter 6, I will reach a conclusion on what can actually, practically be done to repair the colossal damage caused by the FA’s 1921 ban.

b. To introduce my arguments:

There are a number of competing considerations to assess when examining whether there is truly a viable case for reparations for women’s football in England. The first, and potentially trickiest thing to consider, though, is identifying who could bring a claim. The female footballers on whom the ban was originally imposed are obviously not available. Moreover, women’s football did not have a professional league at the time of the ban – the equivalent division to the men’s premier league only became a full-time professional league six years ago.[10] One option could be today’s Women’s Super League, though they are technically still a limb of the FA, so that is perhaps unlikely.[11] The likeliest option would prima facie be the Women’s branch of the Professional Footballers' Association – as then a claim could be brought on behalf of the players who still suffer the ramifications of the ban (as it must be successfully argued). I will explore how I come to identify a claimant/class of claimants in the first section of Chapter 2, below.

Potential difficulties identifying a claimant aside, it’s worth examining what options there would be if an acceptable one can be found. Because of the quasi-public and governmental characteristics of the FA, a claim for judicial review of the ban might seem the most apt course of action. However, as I will explore in Chapter 2(a), the courts have been very restrictive in their application of judicial review to sport’s governing bodies. Thus, in sports-regulator-related disputes, injured parties will generally have to turn to the private law process.[12]

An alternative course of action might therefore be found in competition law, in the doctrine of restraint of trade. This doctrine ‘serves to outlaw agreements in which powerful bargaining positions are abused’.[13] Hendry established that the courts would have little difficulty in establishing the applicability of competition legislation to sports governing bodies (SGBs), and thus their susceptibility to competition scrutiny. [14], [15] Indeed, it has been argued that ‘[t]he restraint of trade route has… been the most fruitful for those seeking to call sport’s governing bodies to account.’[16] There is, therefore, hope along this route. I explore below, in Chapter 2(b) whether or not the facts surrounding the ban mean this is a truly viable option.

Another potential course of action, and prima facie a strong one, would be to pursue an action against the FA under common law. The claim would be based on establishing that the ban was contrary to public policy, because it was an arbitrary restraint of trade by a trade association with monopoly power, and that it was discriminatory, based on the right to work of each sex. The case of Nagle v Feilden[17] is the locus classicus for an action of this sort. In Nagle, it was held that, at common law, ‘there is a right to work at one’s chosen trade or profession without being arbitrarily excluded by anyone having the governance of it.’[18] Lord Denning MR unambiguously explained, in the Court of Appeal, that ‘[it] is arbitrary to exclude women.’[19] In writing the judgment, he took the view that a woman ‘cannot lawfully be refused a licence to train [racehorses] on grounds of her sex alone’, on account of both public policy and the restraint of trade doctrine.[20] Whilst this judgment was very fact-specific in its wording, the precedent is clear. A woman cannot be arbitrarily excluded from pursuing her legitimate chosen vocation, grounds of her gender alone constituting an arbitrary exclusion. I will apply this judgment to the facts of the FA’s 1921 ban in Chapter 2b.

It is also necessary to consider ADR. Litigating in an adversarial system can be costly, time-consuming and contentious. Because (1) women’s footballers will have to continue their working relationships with the FA, and (2) ADR is often less costly, exploring ADR is vital. One potential route to reparation for women’s football would be mediation. This could potentially be pursued with the Court of Arbitration for Sport (CAS).[21] This court, based in Lausanne, Switzerland, is the primary forum for resolving sports-related disputes. However, CAS is not a law-maker as such, rather ‘a means by which disputes can be resolved under whichever legal system is applicable’.[22] Arbitrations, and mediations, conducted under the auspices of CAS, are widely used as an alternative method to going through domestic courts for sports-related disputes. Appealing the FA’s decision to implement the ban, under CAS rules, could be a more practical way to address the damage of the ban. In Chapter 4, I assess the strengths and drawbacks of arbitration, and then of mediation, for the purposes of this discussion.

However, considering what course of action – be it litigation, arbitration or mediation – to take is only one side of the coin; the other, significant task to consider is calculating quantum – that is, the value the court/tribunal assigns to the Party’s (or Parties’) loss(es). One argument, floated by Kuper and Szymanski, is that there should be a large-scale programme of reinvestment into women’s football, paid for with revenue from the men’s game.[23] This would not even realistically be to the financial detriment of men’s football, since FIFA investment which goes directly into women’s football, at the time of writing, is less than 2% of the money they spend on “development and education” alone.[24] I consider more fully what form any remedies should take in Chapter 3.

As indicated above, in Chapter 5, I draw conclusions as to the strongest option overall for the purpose of securing reparations for women’s football in England. I conclude by expressing the view that the best option to that end is to pursue mediations with the FA, in the hope that it will acknowledge its gross misconduct and concomitant moral obligation to make significant financial reparations. One reason as to why this is the best option overall is that the FA and English women’s football need to continue to foster a now relatively harmonious working relationship, which potentially fractious litigation is bound to complicate. In Chapter 6, I set out practical proposals for what could and should, on these bases, actually be achieved in the current socioeconomic climate.

2. What would be the necessary elements of a viable case against the FA?

Sports are almost invariably governed by self-regulatory bodies, most of which have the capacity to act governmentally while retaining the infrastructure and interests of private bodies.[25] As many of these bodies (particularly including the FA) could therefore be described as quasi-public bodies, there are challenges for the law in terms of how best to reach resolutions when serious disputes arise. Self-regulation has historically been perceived favourably, because internal actors usually command ‘higher levels of expertise and technical knowledge’ than independent or state actors, as well as reducing the burden on the public purse.[26] However, self-regulation inherently gives rise to some concerns of democratic legitimacy. One such concern is that the decision-making procedures of SGBs usually ‘are not founded upon internal democratic processes.’[27] It has been argued that such policy decisions in fact have a tendency to reflect the interests of powerful economic stakeholders.[28] Thus, in a sports context, self-regulatory bodies ‘ought to be subject to effective scrutiny by the courts’, in order to ‘meet the requirements of democratic legitimacy.’[29] The key question, then, for the present purpose, is how? In other words, in the context of the ban’s damage to women’s football, what is the best way to use the law to hold the FA to account?

a. Public law arguments 

This section is academic – there is a limitation period for a claim for judicial review of three months from when the grounds to make the claim first arose.[30] When there is a ‘good reason’, this three-month period can be extended, but it would be a stretch to suggest that the courts would be willing to extend it over 100 years.[31] Nevertheless, I will briefly consider whether a claim for judicial review (JR) would have been viable had it been brought in the appropriate timeframe. The FA certainly has the characteristics of a public, governmental body. It has monopolistic control over English football. But can that mean its decisions are subject to JR? The case of Council of Civil Service Unions v Minister for the Civil Service[32] offers guidance on the parameters of when a decision may be subject to JR. In his speech, Lord Diplock (with whom Lords Scarman and Roskill agreed) writes:

“To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker… either: (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which… he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until… he has been given an opportunity to comment”.[33]

The ban clearly affected a body of persons other than the decision-maker. It also altered the rights of that body – it removed female footballers’ rights to use FA grounds and officials for football matches. Moreover, it did so in a way which (disregarding time limitations) would have certainly given rise to claims against it by individuals or groups of women, in private law, using either the restraint of trade doctrine, or arguing that it was discriminatory and contrary to public policy. On any view, it obviously deprived an identifiable body of persons (female footballers/women as a whole) of some benefit which they had previously been permitted to enjoy.

The FA also did not consult the women concerned before reaching its decision to impose the ban. Thus far, it would seem a claim for JR might be apt in the present circumstances. However, a vital, and often determinative, element necessary to bring claim for JR of a decision, is the source of the power of the decision-maker.[34] If the source of power arises from contract, then JR will be unavailable. It used to be the case, in the words of Lord Diplock, that for a decision to be susceptible to JR, ‘the decision-maker must be empowered by public law’.[35] However, the case of Datafin slightly greyed the area in between public and private law in this instance.[36] Datafin, ‘a company involved in a take-over bid’, challenged a decision by the City Panel on Take-overs and Mergers (The Panel).[37] The Panel was a self-regulating body that ‘produced and manage[d] the City Code on Take-overs and Mergers’ which (like the FA with its rulebook governing football) governed the procedure of the take-over or merging of listed public companies.[38] The Panel had no powers arising directly from public law. It was only indirectly supported by ‘a number of provisions relating to the listing of companies on the Stock Exchange’.[39] Despite not being a body whose powers derive from statute or Royal prerogative, the Panel was ‘held to be a body susceptible to judicial review, because of its nature’.[40] Lloyd LJ explained that while ‘the source of the power will often, perhaps usually, be decisive’, it can help to look ‘not just at the source of the power but at the nature of the power.’ [41]

Essentially, Datafin shifts the courts away from a strictly source-based test for whether a body would be susceptible to JR, towards a more functional test, assessing the nature of the power and the consequences of a body’s decisions. I would argue, on this basis, that it would make perfect sense for JR to apply the decisions of the FA. Nevertheless, the courts remain reluctant to apply JR to decisions of SGBs. Despite the attempts of multiple applicants,[42] the courts have consistently stressed, on the contractual source-of-power basis, that JR will generally be unavailable in this context.[43] Arguments such as those of the English Football League (from a 1993 case against the FA) that the FA’s rules, ‘despite being contractual in form, [are] in effect a legislative code for the game’, have obvious merits.[44] Nevertheless, in the case, Rose J described it as ‘a clear and inescapable conclusion… that the FA is not a body susceptible to judicial review’.[45] Even though the FA has ‘virtually monopolistic powers’, and its decisions are important to much of the public who are not contractually bound to it, Rose J explained that it is ‘a domestic body whose powers arise from and duties exist in, private law only.’[46] JR is therefore ruled out, even theoretically.

b. Private law arguments

Actions against the FA, therefore, have to be founded in private law. Prima facie, the strongest two options here would be either (1) an action seeking declaratory relief that the ban was discriminatory and contrary to public policy, or (2) bringing a claim in competition law, arguing that the ban was an unlawful restraint of trade. As above, though, there are limitations which time-bar potential claims in litigation.

The time limitations for most claims are set out in the Limitations Act 1980. It is taken as the starting point that ‘most claims are subject to a six-year limitation period’, unless there is a specific statutory provision to say otherwise.[47] The grounds for a claim, i.e. the implementation of the ban, arose over 100 years ago. This would prima facie preclude any litigation based on the ban. However, it remains important to assess the legal arguments surrounding the ban, notwithstanding the time limitations, as these arguments can only lend weight to the case put forward in alternative dispute resolution (ADR).

As an aside, there is another way around this six-year period. It would be rare, but it is not out of the question to campaign for Parliament to implement an ex post facto law to formally recognise the wrong of the ban and open the door for a specific claim. Ex post facto legislation has been implemented before, such as with the War Crimes Act 1991, which created retrospective criminal liability for anyone who had committed war crimes during WWII.[48] However, this type of legislation is extremely rare, and would rely on a significant campaigning effort. It could, of course, make possible a retrospective claim in an English domestic court against the FA. But this is, at present, purely hypothetical. I will therefore make my analysis below under the assumption that it is purely academic, i.e. that any litigation would be time-barred. But, as above, it remains important to explore the legal arguments surrounding the decision to implement the ban, even if only to further a case put forward in ADR.

In any claims which take place in an English domestic court, certain procedures must be followed. The first step in any claim is to have an identifiable claimant, or class of claimants. In the present case, because the decision and implementation of the ban took place over 100 years ago, this first step may be the hardest to overcome, in the eyes of the law. The women directly impacted are obviously unavailable. There were no official, professional women’s football clubs at the time of the ban, so that option is ruled out. It could be argued that football clubs which existed at the time of the ban, who now have women’s teams, lost years of potential revenues. But this would rely on them being able to prove that they (1) would have had a women’s team during the years of the ban and (2) would have made X amount; these arguments are inherently weak. I therefore argue that the most appropriate class of claimants are the women’s members of the PFA. These are women who rely on the incomes of FA clubs and competitions, and who could well be earning significantly higher incomes were it not for the ban. I draw a comparison with tennis, where there was never any such ban on women’s tennis players. This is reflected by the statistic that in 2019, women’s professional tennis accounted for ‘41% of all tennis circuit revenue’.[49] Applying those numbers to football, if female and male footballers were paid equally relative to the revenue they respectively generated, female footballers could be earning 2/3 that of their male counterparts. Considering where the earnings figures are in reality today (see Chapter 1(a)), this illustrates the great importance of this discussion, and particularly its significance for the female members of the PFA. They are therefore the Claimant Class around whom I will be basing my discussions below.

To outline the practicalities of this route: the usual way to begin civil proceedings is by issuing a claim form.[50] This form, usually the responsibility of the claimant’s solicitors to complete, will:

1.       provide the names and addresses of the respective parties;

2.       provide a brief statement of the nature of the claim;

3.       state the remedy sought; and

4.       where the claim is for money, contain a statement of value.[51]

Regarding points 3 & 4, with certain cases – as with this one – the exact amount cannot be stated, but this does not invalidate any claim. In such circumstances it is expected that the claimant offers an estimate of whether the money claimed will be in excess of a certain amount.[52] In the present case, the amount could be deep into the millions, based on the long-term and large-scale nature of the damage. In any case, once all boxes are ticked, the form is sealed by the court, the claim is issued, and it must be served shortly afterwards.[53]

i) Option (1)

As above, the locus classicus for a claim of this sort is Nagle v Feilden[54]. Florence Nagle, a woman, had trained racehorses for many years. But she had been refused a licence to train from the Jockey Club (JC) on several occasions. She argued that it was the policy of the stewards of the JC to ‘refuse to grant a licence to train racehorses to any female applicant… on the sole ground that such applicant was a female.’[55] Indeed, Lord Denning explained in the CA that because the JC had granted licences to her male employees, in particular to her “head lad”, the JC had ‘no objection to her capacity and fitness as a trainer’, but ‘they refuse simply because she is a woman’.[56] Nagle brought an action claiming (1) a declaration that this practice was discriminatory and contrary to public policy, (2) an injunction ordering the stewards to grant her a licence, and (3) damages. She argued that the ‘systematic refusal’ of female applicants ‘on the basis of their sex… was unlawful as being in restraint of trade and contrary to public policy’, as it prevented women from ‘earning a living in this area’.[57]

At first instance, Nagle’s claim was struck out, because the court had deemed there to be no contractual relationship between Nagle and the JC.[58] The absence of a contractual relationship meant that the courts would not intervene as it was thought that their jurisdiction to do so was founded in protecting the rights of contract.[59] However, on appeal, it was held that proving the existence of a contract was not necessary for claiming relief of the kind sought; it could be argued, without showing any contractual relationship, that the practice was contrary to public policy.[60] In so finding, Lord Denning stressed that the JC was ‘an association which exercises a virtual monopoly in an important field of human activity’.[61] The JC is a body with which one can easily draw comparisons with the FA, and the policy in question is remarkably reminiscent of the ban. Further, Denning stressed here that associations such as the JC (and the FA) have the power to determine who can and cannot undertake their given profession, and thus can deprive a man of his livelihood.[62] When someone is ‘wrongly rejected or ousted by one of these associations’, the courts thus have the power to grant ‘a declaration that [the] rejection… [is] invalid and an injunction requiring the association to rectify their error,’ even without a contract.[63] The basis of the courts’ jurisdiction in such cases is based on a person’s right to work, which the courts will intervene to protect.[64] But if we assume the claimant class to be today’s PFA’s female members, there is an easily identifiable contractual relationship between themselves and the FA, so this is a non-issue. The case does illustrate, though, how far courts are willing to go in order to ensure accountability for SGBs through the private law process.[65]

But can Nagle actually apply to the present discussion? Its precedent is clear in that it means that women cannot be arbitrarily excluded from pursuing their legitimate vocation by those having governance of it. One thing which is less clear, though, is whether or not women’s football in 1921 would have constituted a vocation within the meaning of section 1 of the Sex Disqualification (Removal) Act 1919 (SDA) (since replaced by the Equality Act 2010) – the key legislation in Nagle. Section 1 SDA says that a person ‘shall not be disqualified by sex… from… entering or assuming or carrying on any civil profession or vocation’. The 19th century case of Partridge, referenced in Nagle,[66] held that ‘the word “vocation” is analogous to “calling,” a word of wide signification, meaning the way in which a man passes his life.’[67] I would argue that if the word vocation means ‘the way in which a man passes his life’, then it surely applies to women who dedicate their lives to football – even if they do so in tandem with another paid occupation. Williams notes that the practice of finding jobs for ‘very good [female] players that would enable them to play frequently’, for example by physically moving closer to where they played, was ‘commonplace until the 1960s’.[68] This is a clear example of football dominating the lives of these women, even to the extent that it determined where they lived and the jobs they took.

It is debatable whether a court would agree with this analysis, but this would perhaps be immaterial; Lord Denning said in Nagle that while training racehorses may not be a vocation within the meaning of s.1 SDA, it is regardless ‘an occupation which women can do as well as men: and there would seem to be no reason why they should be excluded from it.’[69] So irrespective of a court’s definition of “vocation”, there seems to me no reason why this logic should not apply to women’s football. The ban was clearly gender-discriminatory and is therefore against the public policy of the years following the introduction of the SDA. There are of course physical differences between male and female football matches. But attendance figures from the 1910s would suggest that women were demonstrably capable of equalling and exceeding the crowds in attendance for men’s games.[70] Significantly, an extract from a 1951 matchday programme said that women’s football played within the normal regulations that men’s football did and would give the spectator ‘a good afternoon’s sport’.[71] Men’s and women’s football, while played separately, were (and are) the same sport. On this basis, Nagle seems to apply perfectly to the present facts.

Aside from limitation periods, the main issue here lies in the remedy for an action of this sort. If a claim of the sort for which I am arguing in favour here were made after Nagle, but while the ban was still enforced, then the courts could have given a declaration that the ban was unlawful and an injunction preventing its re-imposition, with potential damages (though in the absence of a professional earnings system these would be limited). But this discussion takes place in the present day, more than fifty years since the ban was lifted. Moreover, I am making the argument that women’s football should be paid reparations. The remedy established in Nagle was not a financial one. Lord Denning stressed that unless the person whom such an association has wronged can establish a contract or a tort, damages may not be available.[72] So unless a contract or a tort can be established, the courts will not order financial compensation to women’s football for the ban.

However, while there is evidently a contract between the women’s PFA members of today and the FA, it may also be possible to prove that there was a contract between female footballers and the FA at the time the ban was imposed.[73] This would have the benefit of potentially opening the door to a financial remedy for women’s football. In order to establish the existence of a contract in 1921 between women’s footballers and the FA, it would have to be inferred from the parties’ conduct. Following Modahl v BAF,[74] though, this appears arguable. One could argue the ‘participation basis’ established in Modahl shows that there existed a contractual relationship at the time of the ban. There were plenty of women’s football matches which took place in FA-regulated stadia in the years preceding the ban.[75] The women’s matches played at these stadia were governed by the rules and regulations of the FA, which had been established in 1863.[76] The female players and clubs would thus have had to agree to be bound by the FA’s rules and regulations. This agreement and repeat participation thereby establishes a contractual relationship (the ‘participation basis’).[77] As a result, if, by arbitrarily excluding only women, the FA can be shown to have breached the contract between itself and female footballers across England, there would be the potential for financial redress for women’s football. The amount, however, is unclear; money was not addressed in Nagle, and this would be the first claim of its kind. I discuss remedies in Chapter 3.

Overall, the Nagle option would seem a strong one if a claim is to be brought against the FA in light of the ban. However, it would be time-barred, unless there was an Act of Parliament to permit the claim. But if an ex post facto law was introduced, or there were found some miraculous other exception to the 6-year limitation period, then this claim would be very likely to succeed. As such, in the exploration of ADR in the following chapter, I advise anyone acting on behalf of the women’s members of the PFA to use these facts in argument to strengthen their case.

 ii. Option (2)

Option (2) would follow a slightly different route: the restraint of trade doctrine, which ‘serves to outlaw agreements in which powerful bargaining positions are abused.’[78] The same limitation period as above applies here.[79] So this discussion is again, academic. Nevertheless, I will explore whether a claim of restraint of trade would succeed, if the problem of limitation periods weren’t an obstacle. As above, the arguments discussed below can be used to strengthen a case in ADR.

There are three stages to establishing that this doctrine has been breached, in a sporting context. The first is that the claimant must be able to prove, as a matter of fact, that they have been restrained ‘from earning money in their chosen profession’.[80] The second stage is that the defence cannot prove that the measure in question, restraining the claimant’s ability to work, is reasonable and proportionate.[81] If the defence does indeed fail at the second stage, the claimant must then satisfy the court that the restraint is contrary to public policy.[82] So for a restraint to be valid, it must be reasonable, it must not be contrary to public policy, and it must protect an interest which merits protection.[83] The strength of pursuing this option in the present context is that, in something of a contrast to the previous two legal options explored, the courts have had little difficulty in finding that SGBs are subject to competition scrutiny.[84]

The applicability of the ban to the first stage is the trickiest to prove in the present context. Professional football was a fairly novel phenomenon at the time the ban was introduced. The English Football League had only been introduced thirty years prior.[85] Women’s football in England was yet to organise itself into a professionally structured industry. Matches did take place, and at the time of the ban there were as many as 150 women’s teams in England.[86] But many, if not most, of the women’s matches played on professional grounds were played for charity.[87] Women’s cup competitions, moreover, ‘were rarely arranged for purely economic reasons’;[88] when not for charity they were played simply ‘for the accumulation of honours’.[89] The absence of professional wage structures in women’s teams across the country in 1921 may negate the applicability of this doctrine; if they were not already earning money from playing, how can it be said that the ban restrained them from doing so?

On the other hand, it could be argued that when the matches of the years before the ban were played for charity, money was indeed involved – of which a percentage went to the female footballers participating.[90] The ban prevented this from continuing. It therefore prevented them from earning money in this area. Moreover, female footballers were denied the opportunity to earn further money in this area by consequence of the ban. Had they been allowed to do so, it is highly likely that women’s football would have become a far more professional and structured industry than it was in reality allowed to do for most of the 20th century.

However, with the ban restricting women’s football, the sport became more of a leisure activity than a professional occupation. Women primarily played ‘for fun’, and matches were organised more for the spectacle and the community outreach than for professional competition.[91] Also, hypothesising what the sport could have been, whatever the likelihood and strength of the arguments, would likely be dismissed as speculative by the courts. As such, this option may fall at the first hurdle, unless the courts sympathise with the arguments that female footballers earned money, however small the amounts, in the charity matches, that the ban prevented this from continuing, and hence that future opportunities to earn were restrained.

Notwithstanding the possibility of failure at the first stage of this doctrine, the second two stages would seem easily satisfied. For a restraint to be reasonable/proportionate, it must be ‘such only as to afford a fair protection to the interests of the party in favour of whom it is given’: see Horner v Graves.[92] In Horner it was held that if a restraint goes beyond the necessary protection of the party then it is oppressive and therefore unreasonable.[93] The FA could hardly argue that the ban went only so far as was necessary to protect their interests. It was a blanket ban on its associated clubs from hosting women’s football and on its members from officiating such matches. Women’s football could in fact have helped the FA grow; they had actually profited from the women’s football matches played during WWI,[94] so it was certainly not a threat to their commercial interests. The main purpose of the ban, as Jenkel argues, was, crudely, to re-establish male dominance in the field of football – to remind women that in a sporting context their place was simply secondary to men’s.[95] Ergo, the ban was not, nor could it be seen as, reasonable or proportionate. Moreover, it is not for the claimant(s) acting on behalf of women’s football to prove that the restraint was unreasonable. The onus is on the party reaping the benefit of the restraint to ‘show that it is reasonable and that there is a legitimate interest to protect.’[96]

In terms of the third stage – the public policy stage – this doctrine has been significantly ‘moulded by changing ideas of public policy’.[97] This means that, in the operation of this doctrine, public interest has an impact on ‘the way in which the private interests of the parties are to be determined’.[98] The courts therefore have a degree of discretion with regard to this third stage, in order to recognise the fluid concept of public policy.[99] Evidently, the ban would be contrary to modern day public policy. It would also be contrary to public policy in the years following Nagle. However, it is uncertain that at the time the ban was implemented, it would have offended public policy. Some newspapers and large parts of society were in support.[100] Those in support were particularly concerned that the sport was too strenuous for women, that it could result in ‘injury to the breasts’, and that it contradicted traditional notions of femininity.[101] However, large swathes of society were against the ban. As well as a number of prominent newspapers, almost all of those who had actually been involved with the sport in some way were vocally against the ban.[102] Moreover, several of the groups of ex-servicemen who had been in receipt of the charitable funds raised by the war-time women’s matches, went as far as sending the FA telegraphs to express their opposition to the ban.[103] In any case, it could be argued that it was discriminatory under the SDA, and contrary to public policy on this basis alone.

c. Conclusions on litigation

To summarise the litigation arguments: judicial review, in light of limitation issues and Rose J’s 1993 decision that the FA was not a body susceptible to judicial review,[104] is ruled out. The private law options are stronger, but are not without their weaknesses. Following the Nagle route would be a particularly strong option if the claimant on behalf of women’s football wanted a declaration that the ban was discriminatory and unlawful. Moreover, following Modahl, the door could be open to financial redress along this route. The fatal obstacle, though, is that the ban was lifted over fifty years ago, and initially introduced over one hundred years ago – way past the six-year statutory limitation period. This would be the Achilles’ heel of any potential litigation. If there was, somehow, an Act of Parliament to implement an ex post facto law and allow such a claim, then the strongest option would be option (1) – the Nagle route.

3. What form(s) could any remedies take and why?

I will now consider what the remedies might look like in the event of a successful claim. There is no real precedent to follow here, given the highly individual nature of the circumstances. Nevertheless, if private law option (1) were pursued, then the first potential remedy would, as mentioned previously, be a court declaration that the ban was unlawful, and an injunction preventing them from re-imposing it. But if a contractual relationship could successfully be proven on the ‘participation basis’, then the door might be open to damages. Such damages could be enormous. The ban was imposed for fifty years. During that time men’s football grew unimpeded, and women’s football stalled. Fifty years of difference in growth has led to a huge inequality between men’s and women’s football that still pervades English football. A court, when calculating damages in this case, would try to put a number on where women’s football would be today but for the ban. This number could be well into the tens of millions of pounds, based on where men’s football was before the ban and where it is now, in comparison to women’s football. The remedy if option (2) were pursued would be of a similar nature. There could be damages as far as loss of earnings can be shown on account of the restraint (the ban), and a similar injunction.

However, given the potential failure of any litigation, I must consider what the remedies might look like in the event that alternative courses of action are pursued. I cover alternative dispute resolution (ADR) fully in Chapter 4. Arbitration and Mediation proceedings will have the same targets in mind. Bearing in mind that the technical legal tests for damages will be inapplicable in pursuing mediation, the best that can be done here is an assessment of the difference between where women’s football is today (in terms of revenue, size, wages etc.) and where it would be but for the ban. Kuper and Szymanski, as mentioned in the introduction, have on this basis made the argument for a large-scale programme of reinvestment into women’s football, paid for with revenues from the men’s game.[105]

But is this truly practicable? In 2020, the FA invested £11m into women’s football.[106] In 2021 it invested £13m. The total FA investment figures for each year were £150m and £122m respectively.[107] So investment into women’s football hovers around a tenth of the FA’s total investment. For reference, the total investment for FA competition prize funds was £45m in 2020 and £36m in 2021.[108] The FA spends around three times as much on men’s competition prizes alone as it does on women’s football as a whole. The FA also reported profits of £100,526,000 in the financial year 2021.[109] Cutting merely a tenth of that total profit figure and reallocating it into women’s football would not only double the investment in women’s football, but could also lead to massive growth for women’s football at negligible financial detriment to the FA. ADR should aim for this as a minimum.

However, as much as an additional £10m annually for women’s football in England would not fully redress the damage of the ban, it would represent a huge step in the right direction. I would suggest that any remedy, though, should model itself (at least in part) on the reparations that the Inter-American Court (IAC) has the power to order. When the IAC determines that a state is ‘liable for a rights violation, or the state voluntarily accepts responsibility for a violation, the Court orders the state to provide reparations to the victims.’[110] Of course, this is a supra-national court dealing with state-level offences. But the IAC’s remedies provide important guidance for the present discussion. These remedies tend to show ‘creativity and engagement with victim populations’.[111] This is the key element to take from the IAC. Any remedies agreed/ordered should seek to engage with female footballers in a way which affords them a genuine say in what they think would best serve to repair the lasting damage of the ban.

Any remedies sought for in ADR should also look towards the policies of UEFA with regards to women’s football. In recent years, UEFA brought in a ‘solidarity payment’ for the clubs of the Women’s Champions League, to support the growth of the women’s game.[112] No such solidarity payment has been given by the English Premier League.[113] But the FA should consider itself morally obliged to implement solidarity payments of this kind, for the reasons detailed in Chapter 1(a). I will explore below how any one of these remedies could actually come to fruition, in light of the litigation options being time-barred.

4.Arbitration and Alternative Dispute Resolution (ADR)

 a.  Should there be no viable case, what are the alternative courses of action?

 i.      Arbitration

An equivalent ban in modern times would all but guarantee the success of a claim of the sort which I explored in Chapter 2. But the six-year limitation period for private law options, and the three-month period for judicial review, are inescapable without an Act of Parliament. As such, I must explore ADR. The first alternative course of action to consider is arbitration. Such arbitration would be centred around the historic wrong of the ban and its lasting impact. It would aim to attain compensation (i.e. reparations) on behalf of women’s football. The use of arbitration to resolve disputes between SGBs and those they regulate has become common practice.[114] Arbitration, with panels of specialist arbitrators, is often regarded as preferable to litigation, in terms of speed, cost, and expertise.[115] Indeed, arbitration has overtaken litigation in the past thirty-to-forty years as the primary mechanism through which major sports disputes are settled.[116] Such arbitration could be taken up with either the CAS (as described in Chapter 1), or Sports Resolutions (SR) – the primary UK-based resolution service for sports disputes.[117] However, given that SR is not mentioned at all in the latest edition of the FA Handbook, and CAS is (fourteen times), I will assume that arbitration proceedings with the FA would best be pursued at CAS.[118] Rule K of the FA Handbook establishes that any dispute between two or more of those subject to its jurisdiction (which for the purposes of the rule includes the FA itself), ‘shall be referred to and finally resolved by arbitration’.[119] This term satisfies the necessity for an agreement to arbitrate, as at R27 and R38 of the CAS procedural rules.[120]

So, in order to bring a matter for arbitration with the CAS, both parties must agree to refer the matter to the Court.[121] Rule K of the FA handbook would qualify as this agreement. The subsequent procedures to follow when bringing arbitration proceedings are fully laid out on the CAS website. In short, the claimant(s) will have to file a request with the CAS Court Office, containing the full name and address of the claimant(s) and of the respondent (the FA), and a brief statement of the facts and legal arguments, amongst some other technicalities.[122] Once the form has been completed, sent and accepted, the CAS Court Office will ‘set the arbitration in motion’.[123] This includes requesting the respondent to answer the request for arbitration. This answer is essentially a brief statement of defence.[124] Each party will then choose an arbitrator from the CAS list, before a third is chosen either by agreement between the parties’ arbitrators or by another division of the CAS, making a panel of three.[125]

Once the arbitration proceedings begin, the claimant(s) should adopt some or all of the arguments raised in Chapter 2b, for example that the ban was contrary to contemporary public policy, that it was an unreasonable restraint of trade, and that it served to create a lasting inequality in English football between the men’s and women’s games. Further, it may be advisable to raise Jenkel’s argument that the main purpose of the ban was, rather than to protect any legitimate commercial interests, to re-establish male dominance in the field of football.[126] The FA certainly succeeded to this end – men’s football is essentially fifty years (at least!) ahead of women’s football. This can be illustrated by the stark difference in the comparative levels of attendance between men’s and women’s football before versus after the ban, and the comparative remuneration for male and female players today. Before the ban, women’s matches regularly attracted crowds at least on par with, if not in excess of, the crowds men’s matches of the time gathered.[127] Women’s matches are only in very recent years beginning to attract anything like the crowds in attendance for men’s games. In order to speed up women’s football’s recovery, arbitration should therefore seek compensation for this inequality caused by the ban. To this effect, the body of claimants should raise the notion of a large-scale reinvestment programme, as explored in Chapter 3.

 ii. Mediation

There is also the option of mediation. This could be pursued again through CAS, or with SR.[128] Both provide mediation services. Either would seem appropriate in the current context. SR mediation appears to be willing to tackle a broader range of issues, whereas CAS mediation is primarily designed for the settlement of contractual sporting disputes. But it would probably be best to go through CAS; should the mediation fail to reach a settlement, the parties can turn to the CAS arbitration process. Moreover, the CAS rules on mediation state that, with express agreement between the parties, mediation can deal with issues separate to those of a contractual/disciplinary nature.[129] In order to commence mediation proceedings with CAS, a similar procedure to that of arbitration is required. A request, containing the names of the parties, a copy of the mediation agreement and a brief description of the dispute, must be addressed to the CAS Court Office.[130] This option does rely on cooperation from the FA. But they are perhaps likely to want to pursue mediation over arbitration (or litigation) due to (1) its informality, (2) the lack of stigma associated with a potential finding against them, and (3) the ability for flexibility with remedies. Once the technicalities are dealt with, a mediator is appointed from the CAS list either by mutual agreement between the parties or on appointment from the CAS President, then mediation can begin.[131]

As mediation is informal relative to the options explored thus far, there is greater flexibility for the advocate or representative acting on behalf of women’s football to employ a range of negotiation strategies and styles. Given that after this mediation has been completed, the FA and women’s football will need to continue their working relationship, I would recommend a more co-operative style, with some ‘competitive’ elements.[132] The aim in pursuing mediation is to avoid having to arbitrate or litigate contentiously, so it is in the best interests of both parties to be co-operative in searching for a settlement. However, I would argue that the women’s football advocate should begin in a ‘competitive’ style, in order to emphasise the case in strong terms. A ‘competitive’ negotiation style is characterised by emphatic language, a strong tone and making demands, in order to put pressure on the opponent to make concessions and secure a favourable outcome.[133] However, the advocate should have an underlying co-operative strategy, in order to recognise both the level of collaboration needed to settle this dispute and the need to continue the working relationship. It is therefore important that the advocate does not go too far with competitive tactics, as this can leave the opponent feeling alienated and unwilling to compromise.[134] Instead, while beginning competitively, in terms of a strong tone and demands, the women’s football advocate should remain open, friendly and co-operative. It is in the best interests of the Parties to recognise the sensitive nature of this dispute and be co-operative, which should more easily lead to a favourable settlement than an aggressively competitive strategy.

b. What are the benefits or drawbacks of each potential alternative course of action?

In terms of arbitration, the main benefit is that most major sports-related disputes are resolved in this manner. It will therefore be a familiar process to any FA advocate and proceedings are usually completed without undue delay. Moreover, all the cases which come before CAS ‘examine the conduct complained of in the context of the needs of the sport’.[135] It is therefore to be hoped that in the context of the needs of women’s football, any remedy ordered would be sufficient to genuinely address the lasting damage of the ban. Also, the decisions of the CAS panel of arbitrators are binding and thus legally enforceable by the parties.[136] Therefore, any remedy ordered would be legally enforceable on behalf of women’s football against the FA. This is in contrast to mediation, where the resolution is not binding (unless codified in an agreement).

However, CAS arbitrators ‘have hardly any experience in human rights law’, as most come from the commercial field.[137] Moreover, Holzer argues that the CAS arbitrators have a ‘systemic lack of knowledge of… gender justice’.[138] It is therefore possible that the panel will be less sympathetic to the specific needs of female footballers in the historical context, and more sympathetic to the commercial needs of the FA. This could limit the extent of any compensation/reparations that they order against the FA.

Arbitration would nonetheless be a streamlined process, and would have a legally binding outcome. However, the knowledge and experience of the CAS arbitrators tends to be limited to commercial law (and sports law).[139] There is a perceived lack of expertise in human rights and issues of gender justice. There is thus the possibility that any decision reached by a CAS tribunal might lend more weight to the commercial needs of the FA than the needs of women’s footballers. Nevertheless, given the autonomy of the claimant(s) acting on behalf of women’s football to choose an arbitrator from the CAS list for the panel, a female arbitrator who may be more sympathetic to their cause might be found. Overall, arbitration would still be a strong option, provided the FA agreed to undergo this process.

In terms of mediation, it is certainly the most collaborative and good-natured option. As is explained on the SR website, mediation is recommended for disputes in which it is important that the relationship is preserved.[140] For the present context it is vital that the relationship between women’s football and the FA is not fractured to any further extent, so that they can continue to grow their working relationship. In this regard, mediation is a particularly strong option. Furthermore, as outlined in the first part of this chapter, mediation offers a level of flexibility, firstly in terms of the negotiation styles that the advocate acting on behalf of women’s football can employ, but also in terms of the potential settlement. There are no strict boundaries through which a settlement must be pushed here, so the settlement could be more reflective of the true needs of women’s football. The goal for mediation should be to negotiate towards large-scale investment into women’s football, of the kind explored in the third chapter, and mediation would be the route through which this outcome would realistically be most achievable. Arbitration is much more procedurally restricted in this regard, and litigation is obviously off the table, following Chapter 2(c).

However, mediation is not a flawless method. Firstly, the outcome at the end of mediation proceedings is non-binding, unless an agreement is codified.[141] If mediation is undertaken at CAS, in the event of any breach of the settlement, the aggrieved party may rely on a copy of the agreement and bring arbitral proceedings before any arbitral or judicial authority.[142] If the FA were to renege on whatever their commitments may be in a mediation settlement, then arbitration would need to be pursued. However, in the present context and in the modern day, it is likely that the FA will want to avoid bad press with regards to women’s football. It is much likelier that they would uphold any commitments made in mediation. Nevertheless, another potential weakness lies in the informal nature of such proceedings. This means that there is no real precedent to follow and the settlement reached will be almost entirely novel. This could be either beneficial or detrimental to women’s football – but the weakness is in the uncertainty of the outcome. Overall, though, mediation would seem a strong option, and perhaps stronger than arbitration for a number of reasons, namely: (1) the flexibility of the settlement to tailor itself to the specific needs of female footballers, (2) the expertise of the mediator is a non-issue, so the settlement will not be restricted by the commercial leanings of any arbitrators, and (3) the collaborative nature of the proceedings means that this option is the most conducive to growing the working relationship between the FA and women’s footballers.

5. Evaluating the best option to redress the lasting damage of the 1921 ban on women’s football.

Based on the evidence above, with particular regards to limitation periods, it becomes clear that mediation is the strongest option in terms of remedying the ban’s damage to women’s football. Obviously, if the ban were implemented today, it would open the door to any number of potential claims, particularly those explored in Chapter 2, as well as claims under the Equality Act 2010 for sex-based discrimination.[143] But, without a specific Act of Parliament, it has simply been too long since the ban was implemented (and lifted) for the courts to be willing to entertain such a claim. Pursuing arbitration with CAS is feasible, unlike litigation, but for the reasons outlined in Chapter 4b, there would still be significant obstacles. The option with the most strengths and the least drawbacks would be mediation (see Chapter 4(b)). Such mediation would be negotiating towards a programme of reparations, to try to put women’s football where it would be today but for the ban. These reparations would be financed by cutting into the FA’s enormous profit figures (see Chapter 3) and, ideally, reallocating some of those funds towards women’s competitions/clubs.

A significant strength of mediation is that it is the least likely option to harm the working relationship between the FA and women’s footballers in the same way that litigation (or indeed arbitration) could. It leaves the settlement to the parties. For women’s football, it means that the settlement can be creative and flexible according to their needs. For the FA, it means it avoids the stigma of a court judgment, or a CAS tribunal finding, that they acted unlawfully.

Archer and Prange have powerfully argued that the FA owes ‘duties of reparation to women’s football’.[144] Mediation would allow the FA to address the ban in such a way that fulfils this ‘duty of reparation’ without forcing them do so. Archer and Prange further argue that the structural injustices still suffered by women’s football, which result largely from their historic mistreatment by the FA, would be best addressed by the FA itself taking leadership and accepting this duty.[145] Rather than seeking to stigmatise the FA for its past actions, the most constructive solution would be reparations which (1) recognise the ‘political responsibility’ of the FA to redress the damage of the ban;[146] and (2) genuinely help women’s football recover to where it ought to be. It is the perfect opportunity for the FA to distance itself from its historically sexist past, and would strengthen the position of women’s football for future generations.

6. Conclusion.

Women’s football was banned ‘precisely at the moment when [and indeed precisely because] it posed an economic threat to the men’s game.’[147] At the moment the ban was imposed, women’s and men’s football were comparable economic forces in England. English men’s football today is one of the most successful industries in the world. Women’s football is, and only in the last few years, just beginning to garner even vaguely similar traction, helped enormously in England by a combination of investment put in by the major clubs and the success of the women’s national team. Of course, had the ban not been imposed, women’s football may well not be on quite the same level commercially that men’s football is today. But it would undoubtedly be much closer. Earlier I raised the example of tennis, where women have not had to endure such a ban. In 2019, women’s professional tennis accounted for ‘41% of all tennis circuit revenue’.[148] Women’s football would almost certainly be in a similar position but for the ban.

Overall, the strongest option for securing reparations would be to initiate mediation proceedings with the FA, through CAS. As discussed above, litigating over the ban is not a realistic option, simply because the ban was imposed (and lifted) so long ago. There are arguments to be made in favour of arbitration, detailed in Chapter 4(b). But mediation with the FA, undertaken at CAS, presents the most feasible solution, for the reasons outlined in Chapters 4 and 5. Mediation would aim to achieve a settlement whereby the FA publicly accept that they owe a duty of reparation, which would be fulfilled by significantly increasing their investments into women’s football. The additional burden would be drawn from the FA’s enormous profits, spread out over the years ahead, in order to give the women’s game the increased investment it so badly needs. It would also give the FA the opportunity to listen to and understand those involved with women’s football, allowing them to articulate their needs and how to meet them, in precisely the way they never did in the past. The time for expiation is long overdue.

Bibliography

Books

• Barr W and Picton J, Pearce & Stevens' Trusts and Equitable Obligations (8th edn, OUP 2022)

• Blake S, Browne J & Sime S, A Practical Approach to Alternative Dispute Resolution (5th edn, OUP 2018)

• Colino S M, Competition Law of the EU and UK (8th edn, OUP 2019)

• Gardiner S, Sports Law (4th edn, Routledge 2012)

• James M, Sports Law (Palgrave, 2017)

• Kuper S and Szymanski S, Soccernomics (Bold Type Books, 2022)

• Moeckli D and others (eds), International Human Rights Law (4th edn, OUP 2022)

• Sime S, A Practical Approach to Civil Procedure (24th edn, OUP 2021)

• Sime S, A Practical Approach to Civil Procedure (25th edn, OUP 2022)

• Williams J, A Game for Rough Girls? (Routledge 2013)

Journal Articles

• Archer A & Prange M, ‘‘Equal play, equal pay’: moral grounds for equal pay in football’ (2019) 46(3) Journal of the Philosophy of Sport 416

• Holzer L, ‘What Does it Mean to be a Woman in Sports? An Analysis of the Jurisprudence of the Court of Arbitration for Sport’ (2020) 20(3) Human Rights Law Review 387

• Jenkel L, ‘The F.A.’s ban of women’s football 1921 in the contemporary press – a historical discourse analysis’ (2021) 41(2) Sport in History 239

• Skillen F, Byrne H, Carrier J & James G ''The game of football is quite unsuitable for females and ought not to be encouraged': a comparative analysis of the 1921 English Football Association ban on women's football in Britain and Ireland' (2022) 42(1) Sport in History 49

Websites

• ‘The Official Home of the Barclays WSL and Women's Championship - The FA - Women’s Leagues and Competitions’ (The FA Women’s Leagues and Competitions, 2024) < https://womensleagues.thefa.com >

• ‘The FA Financial Report 2021’ (The FA, 29 Apr 2022) <link>

• ‘About Sport Resolutions’ (Sport Resolutions, 2023) <link>

• ‘The FA Handbook 2022/23’ (The FA, 2022) <link>

• ‘Code: Procedural Rules’ (Court of Arbitration for Sport, 1 Feb 2023) <link>

• ‘Our Services: Mediation’ (Sport Resolutions, 2023) <link>

• ‘CAS Mediation Rules’ (Court of Arbitration for Sport, 1 Jan 2016) <link>

• BBC Front Row, ‘The first professional footballer’ (BBC Radio 4, 16 Mar 2020) <link>

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• Simmons, K, ‘Football regulator delay offers chance to discuss reparations for women’s game’ (The Guardian, 30 May 2024) < link >

Footnotes

[1] Fiona Skillen, Helena Byrne, John Carrier & Gary James ''The game of football is quite unsuitable for females and ought not to be encouraged': a comparative analysis of the 1921 English Football Association ban on women's football in Britain and Ireland' (2022) 42(1) Sport in History 49, 49.

[2] Skillen et al (n 1), 49.

[3] Skillen et al (n 1), 54.

[4] Simon Kuper and Stefan Szymanski, Soccernomics (Bold Type Books, 2022), 119.

[5] Skillen et al (n 1), 53.

[6] Ibid.

[7] Ibid

[8] Skillen et al (n 1), 54.

[9] Lisa Jenkel, ‘The F.A.’s ban of women’s football 1921 in the contemporary press – a historical discourse analysis’ (2021) 41(2) Sport in History 239, 253.

[10] Tom Garry, ‘Women's Super League: New full-time, professional era - all you need to know’ (BBC Sport, 9 September 2018) < link > accessed 2 Jun 2024.

[11] ‘The Official Home of the Barclays WSL and Women's Championship - The FA - Women’s Leagues and Competitions’ (The FA Women’s Leagues and Competitions, 2024) < https://womensleagues.thefa.com > accessed 30 May 2024.

[12] Simon Gardiner, Sports Law (4th edn, Routledge 2012), 105.

[13] Gardiner (n 12), 114.

[14] Hendry v World Professional Billiards and Snooker Association [1970] AC 403 (HL)

[15] Gardiner (n 12), 117.

[16] Gardiner (n 12), 126.

[17] Nagle v Feilden [1966] 2 QB 633, 633.

[18] [1966] 2 QB 633, 634.

[19] [1966] 2 QB 633, 638.

[20] Ibid

[21] Gardiner (n 12), 138.

[22] Gardiner (n 12), 142.

[23] Kuper and Szymanski (n 4), 120.

[24] Kuper and Szymanski (n 4), 129.

[25] Gardiner (n 12) 90.

[26] Gardiner (n 12) 91.

[27] Gardiner (n 12) 92.

[28] ibid

[29] Gardiner (n 12) 93.

[30] Stuart Sime, A Practical Approach to Civil Procedure (25th edn, OUP 2022) ch 49, para. 49.26.

[31] ibid

[32] [1985] A.C. 374

[33] [1985] A.C. 374, at 408-09.

[34] Regina v Panel on Take-overs and Mergers, Ex parte Datafin Plc. and Another [1987] Q.B. 815, 847.

[35] Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, 409.

[36] [1987] Q.B. 815

[37] Gardiner (n 12) 95.

[38] ibid

[39] ibid

[40] Gardiner (n 12) 96.

[41] Datafin (n 34) Lloyd LJ at 847.

[42] Gardiner (n 12) 97.

[43] Gardiner (n 12) 101.

[44] R v Football Association Ex p. Football League [1993] 2 All E.R. 833, 841.

[45] [1993] 2 All E.R. 833, 848.

[46] ibid

[47] Warren Barr and John Picton, Pearce & Stevens' Trusts and Equitable Obligations (8th edn, OUP 2022) 783.

[48] Oonagh Gay, ‘Retrospective Legislation’ (House of Commons Library, 14 June 2013) < link > accessed 31 May 2024.

[49] Kuper and Szymanski (n 4) 128.

[50] Stuart Sime, A Practical Approach to Civil Procedure (24th edn, OUP 2021) 61.

[51] ibid

[52] ibid

[53] Sime (n 50), 83.

[54] [1966] 2 QB 633

[55] [1966] 2 QB 633, 635.

[56] ibid

[57] Gardiner (n 12) 110.

[58] [1966] 2 QB 633, 634.

[59] [1966] 2 QB 633, 643.

[60] [1966] 2 QB 633, 634.

[61] [1966] 2 QB 633, 644.

[62] [1966] 2 QB 633, 646.

[63] ibid

[64] ibid

[65] ibid

[66] [1966] 2 QB 633, 637.

[67] Partridge v. Mallandaine (1886) 18 Q.B.D. 276, 278.

[68] Jean Williams, A Game for Rough Girls? (Routledge 2013), 45.

[69] [1966] 2 QB 633, 647.

[70] Skillen et al. (n 1) 52.

[71] Williams (n 68) 35.

[72] Nagle v Feilden (n 17), 646.

[73] Gardiner (n 12) 106.

[74] Modahl v British Athletic Federation Ltd [2002] 1 W.L.R. 1192

[75] Skillen et al. (n 1) 52.

[76] Gardiner (n 12) 22.

[77] Mark James, Sports Law (Palgrave, 2017) 32.

[78] Gardiner (n 12) 114.

[79] Richard Whish and David Bailey, Competition Law (10th edn, OUP 2021) 338.

[80] James (n 77) 264.

[81] ibid

[82] ibid

[83] Gardiner (n 12) 114.

[84] ibid

[85] BBC Front Row, ‘The first professional footballer’ (BBC Radio 4, 16 Mar 2020) < link > accessed 12 May 2023

[86] Jenkel (n 9) 245.

[87] Williams (n 68) 49.

[88] Williams (n 68) 46.

[89] Williams (n 68) 47.

[90] Jenkel (n 9) 245.

[91] Williams (n 68) 45.

[92] (1831) 131 E.R. 284, 287.

[93] ibid

[94] Jenkel (n 9) 244.

[95] Jenkel (n 9) 245.

[96] Sandra M Colino, Competition Law of the EU and UK (8th edn, OUP 2019) ch 23, 561.

[97] Holdsworth (1937), quoted in Colino (n 96) 558.

[98] Colino (n 96) 557.

[99] Gardiner (n 12) 114.

[100] Jenkel (n 9) 251.

[101] ibid

[102] ibid

[103] Jenkel (n 9) 248.

[104] R v Football Association Ex p. Football League [1993] 2 All E.R. 833

[105] Kuper and Szymanski (n 4) 120.

[106] ‘The FA Financial Report 2021’ (The FA, 29 Apr 2022) <link> accessed 1 May 2023, 31.

[107] ibid

[108] ibid

[109] The FA (n 106), 58.

[110] Thomas M Antkowiak, 'The Americas' in Daniel Moeckli and others (eds), International Human Rights Law (4th edn, OUP 2022) 453.

[111] Ibid 455.

[112] Kelly Simmons, ‘Football regulator delay offers chance to discuss reparations for women’s game’ (The Guardian, 30 May 2024) < link > accessed 2 Jun 2024

[113] ibid

[114] Gardiner (n 12) 138.

[115] ibid

[116] Gardiner (n 12) 142.

[117] ‘About Sport Resolutions’ (Sport Resolutions, 2023) < link > accessed 16 May 2023

[118] ‘The FA Handbook 2022/23’ (The FA, 2022) < link > accessed 16 May 2023

[119] FA Handbook (n 118), page 153.

[120] ‘Code: Procedural Rules’ (Court of Arbitration for Sport, 1 Feb 2023) < link > accessed 16 May 2023

[121] CAS Rules (n 120), R27

[122] CAS Rules (n 120), R38

[123] CAS Rules (n 120), R39

[124] ibid

[125] James (n 77) 53.

[126] Jenkel (n 9) 245.

[127] Skillen et al. (n 1) 52.

[128] ‘Our Services: Mediation’ (Sport Resolutions, 2023) < link > accessed 18 May 2023

[129] ‘CAS Mediation Rules’ (Court of Arbitration for Sport, 1 Jan 2016) < link > accessed 18 May 2023, Article 1.

[130] CAS (n 129), Art. 4

[131] CAS (n 129), Art. 6

[132] Susan Blake, Julie Browne & Stuart Sime, A Practical Approach to Alternative Dispute Resolution (5th edn, OUP 2018) ch 11, 170.

[133] ibid

[134] ibid

[135] James (n 77) 53.

[136] James (n 77) 52.

[137] Lena Holzer, ‘What Does it Mean to be a Woman in Sports? An Analysis of the Jurisprudence of the Court of Arbitration for Sport’ (2020) 20(3) Human Rights Law Review 387, 405.

[138] Holzer (n 137) 404.

[139] ibid

[140] ‘Our Services: Mediation’ (Sport Resolutions, 2023) < link > accessed 18 May 2023

[141] James (n 77) 68.

[142] ‘CAS Mediation Rules’ (Court of Arbitration for Sport, 1 Jan 2016) < link > accessed 18 May 2023, Article 12.

[143] Equality Act 2010, s. 11.

[144] Alfred Archer & Martine Prange, ‘‘Equal play, equal pay’: moral grounds for equal pay in football’ (2019) 46(3) Journal of the Philosophy of Sport 416, 429.

[145] Archer and Prange (n 144) 430.

[146] ibid

[147] Kuper and Szymanski (n 4) 127.

[148] Kuper and Szymanski (n 4) 128.