#MeToo kiss scandal in Women’s Football

Legal Intern at Cole Khan Solicitors Milla Kingston investigates the legal issues at play with the ‘kiss scandal’ that’s overshadowing Spain’s victory in the women’s football world cup

The #MeToo movement is gaining traction in Spain following the Women’s World Cup victory.  A seemingly non-consensual kiss has evoked a wider conversation on macho culture in women’s sport.

Conflict continues over whether the kiss from Federation President, Luis Rubiales, had been consented to by Jennifer Hermoso – the team member now under threat of legal action from the Spanish Football Association who have accused her of misconstruing the nature of the incident.

Taking to social media, Ms Hermoso described the kiss as being ‘impulse-driven’, ‘sexist’, and most importantly ‘without any consent’ on her part; this claim has been supported by all 23 of the nation’s World Cup winning players, all of whom have asserted that they will be refraining from any match involvement until necessary disciplinary action has been taken against Mr Rubiales. Given the fast-approaching Nation’s League match date of the 22nd of September, this action by the team presents particular pressure.

Hundreds protested in Madrid on Monday the 28th of August following Mr Rubiales’ public assertion that the kiss was entirely consensual and that as a result, he refuses to step down from his position; those who gathered publicised their view that this is a false claim, and that the kiss was very much an act of macho behaviour and sexual misconduct. Acting Deputy Prime Minister, Yolanda Diaz, characterised the incident as being proof of the persistent sexism deep-rooted within Spanish culture. The act has transcended discussions solely of women’s football and has instead sparked wider outrage regarding Spanish culture and its underlying patriarchal narratives. Spanish Prime Minister, Pedro Sánchez, stated that an apology was insufficient to compensate for Mr Rubiales’ unacceptable behaviour, following his vague admission of having ‘made a mistake’.

Despite public support for Ms Hermoso, the Spanish Football Association are taking a differing stance on the dispute, vowing to take legal action against the player over her ‘lies’ that have tarnished the reputation of Spanish football management. In an animated speech, Mr Rubiales challenged the ‘false feminism’ that he views these claims to be a part of and asserted his position to remain within his role as Federation President, despite public pressure to resign. On Saturday the 26th of August, the Association vowed to present proof that Ms Hermoso has knowingly been dishonest and may also have involved others in the matter to speak for her.

The Spanish government are however continuing to assert their supportive position of Ms Hermoso, beginning legal proceedings that seek to suspend Mr Rubiales by forcing him to provide explanations for his behaviour before the Sport Court. FUTPRO (Spain’s Association of Professional Female Football Players) are also said to be defending Ms Hermoso and are acting as spokespersons for the athlete on this matter. Further disciplinary proceedings have been opened by global governing body FIFA, who as of the 24th of August have been public in their position to enforce ‘basic rules of decent conduct’ within the game.

Claiming to have been the brains behind the ‘best leadership in the history of Spanish football’, Mr Rubiales’ defiance and continued insistence to remain as Federation President within his public address have been met by demands for immediate action against him by FIFPRO (Global Players Worldwide). Currently also gaining much attention is Mr Rubiales’ mother, Angeles Bejar, who was taken to hospital amid her ongoing hunger strike in response to the widespread condemnation of her son. The case has become larger than the incident itself, and instead reflects a much wider issue of whether world stage football intends to protect female athletes – a pursuit which the English women’s team, the Lionesses, share concerns about, having collectively released a statement in condemnation of the Spanish FA and in support of Ms Hermoso. Ella Toone, English midfielder, and key contributor to the successes of England’s World Cup campaign, individually spoke out further on this issue – asserting that the events have taken the focus away from the growth of women’s football and the inspiration which this could otherwise be providing to younger girls wishing to pursue professional sport. Toone shared Sánchez’s view that merely an apology is insufficient as an amends for the incident and asserted her wish for ‘the right thing to be done’. Mary Earps, English goalkeeper, has similarly hit back at the deeply ingrained lack of support for women’s football that targeted her specifically within the English World Cup campaign as Nike decided not to sell her kit, despite her popularity and well recognised talent.

The dispute raises several legal concerns.

Sexual Harassment:

Should Ms Hermoso wish to escalate this matter and her lack of consent given to Mr Rubiales, she would have grounds to claim she has been sexually harassed within the workplace under the Equality Act 2010 which intends to protect against incidents of this nature. Sexual harassment is unwanted behaviour of a sexual nature.  To qualify as sexual harassment, the behaviour must have either violated the individual’s dignity (whether intended or not) or created a hostile or humiliating environment. Harassment is a form of discrimination; an act can be regarded as being discriminatory when it involves the less than favourable treatment of an individual as a result of a protected characteristic. Ms Hermoso could claim that this incident stemmed from her sex, an attribute which Mr Rubiales exploited as a powerful male within the workplace.  Employers must do all they reasonably can to protect staff from sexual harassment and prevent it from happening.

Abuse of Power:

Mr Rubiales may be further accused of bullying within the workplace given his behaviour likely stems from a misuse of his power as President of the Federation. An abuse of power can be any behaviour by an individual within a position of greater control and influence that humiliates or harms another – physically or mentally. Ms Hermoso would likely have strong grounds to prove that the incident has detrimentally affected her mental health, both as a direct result of the incident itself, but further as a consequence of the media publicity and unexpected focus on her that it has created.

Victimisation:

Victimisation is a form of discrimination that occurs post an employee raising a grievance with their employer and subsequently being treated less than favourably. There is yet to be evidence of this within the matter given its very recent nature, however, should Ms Hermoso return to work and be treated adversely, she would have grounds to claim that her raising of sexual harassment has led to victimisation.

If you are experiencing less than favourable treatment within your workplace, we at Cole Khan are on hand to assist you.