10 December 2018 - Article
Over the last few months we have seen much speculation in the media about the future careers of high profile sports stars convicted of serious crimes. Oscar Pistorius was convicted of culpable homicide and Ched Evans was released from prison on 17 October last year after serving half of a five year sentence for rape. His conviction is currently being reviewed by the Criminal Cases Review Commission. Governing bodies, commercial sponsors and the public have debated the question: can you rehabilitate a high profile athlete? Sheffield United had to tackle this issue with Ched Evans. Many argued that Evans had “done his time” and should be allowed to get on with his career. However, a number of high profile supporters dissociated themselves from the club when they learned that Evans might be allowed to train with them. The IPC had already gone further in late 2014 when it suggested that Oscar Pistorius would not be able to compete at the Paralympics in Rio in 2016 even if he was released from prison in time. The IPC Athletics rules specify that in order to be eligible athletes must ‘Not be otherwise disqualified or under suspension or other sanction affecting his status'. Even if Pistorius were out of prison he would still be under sentence. Those arguing that offenders who commit serious crimes should not return to highly lucrative and prized roles in the public eye may be disappointed that the English Football Association has accepted that it is not in a position to intervene in the Evans issue. However, a real concern will remain for some that allowing offenders back into the profession sends the wrong message as footballers and the like are held out as role models. The FA has now indicated that it intends to consider guidelines or codes of conduct to address this. Legally speaking, as Evans' sentence is for more than 30 months it will never be ‘spent' under the Rehabilitation of Offenders Act. Although there would be little chance of Evans concealing his conviction, any other person in this position would need to disclose such a conviction in response to enquiries by a prospective employer. An employer may refuse to employ those with unspent convictions, although good practice would be to carry out a risk assessment based on a number of factors including the circumstances of the offence and the proposed role. Evans will also have to sign the sex offenders register for a period of time and will also be subject to probation controls during the remainder of his sentence — both of which will need to be considered by a new employer. How the Evans matter will be resolved will depend on a number of factors, not least the ongoing review of his case by the Criminal Cases Review Commission and the weight of commercial pressure that is put on any prospective employer not to employ him (which has been a key factor in preventing signings to date). The FA has not intervened previously when offenders have returned to working within the game. Given the spotlight on Evans now it is an ideal opportunity for the FA to show leadership and confront this issue head on. Whether ultimately the FA will be able to, and should, take a similar approach to the IPC and effectively prevent participation by certain offenders remains to be seen. Certainly this is the approach taken by other professional regulators such as the Financial Conduct Authority, General Medical Council and Solicitors Regulation Authority. A case in point is that of Jonathan Burrows (a former Managing Director of BlackRock) at who was prohibited from carrying out any regulated activity by the FCA last December after deliberately avoiding over £42,000 worth of rail fares over a number of years. Even though the sum had been paid back, the FCA determined he was not a fit and proper person to carry out regulated activities, effectively ending his career. For now, commercial and media pressure appear to be regulating whether a player or manager can resume their career on release. This is undesirable and it leads to uncertainly and inconsistency. Despite the emotional impact of the offence of rape and a perhaps understandable lack of desire to comment on any points that those accused may have, the law and the governing bodies need to act fairly. The FA should show leadership and issue clear guidelines so those players like Evans (and the clubs who may employ them) know whether they are on the bench or not.