Varnish finally sues BC/UK Sport

[Wiggo's Package]

Jess Varnish has finally pulled the trigger on suing BC and UK Sport:

http://www.bbc.co.uk/sport/cycling/41939678

Has Varnish been holding off instigating court proceedings in the (vain) hope that she'd get her place back on the track squad? If so then it appears that BC is, even under new management, too stubborn to back down and smooth things over

Meanwhile UK Sport have been using super-aggressive tactics to try and strike out Varnish's claim:

"It is understood funding agency UK Sport had applied for a strike-out order to have her case dismissed, along with a costs order and deposit order, meaning Varnish's assets would have been seized pending the case. Had these been successful she would have had to have dropped her claim. But on Monday a judge dismissed the applications, allowing Varnish to proceed towards an employment tribunal."

If Varnish wins then IIRC there is no limit on the level of damages for discrimination claims so BC could end up having to make a £££s payout. Although more likely is a settlement with an NDA as BC would want to avoid more bad publicity. But with both sides entrenched this one could go all the way to the final hearing. It will shine a light on the mentality of BC's new management for sure - have they really changed...?

However Varnish has a legal hurdle to clear first which could have much wider implications for UK Sport, BC and GB's other Olympic sports which I suspect also set up their athletes as self-employed to avoid having to give them full employment rights, make pension contributions, etc:

"A preliminary hearing in April 2018 will determine whether Varnish should be considered as having effectively been an employee of UK Sport and British Cycling when she was competing. If her lawyers successfully argue that she did have employee status, the case could have major ramifications for all contracted British athletes who are funded by UK Sport. If they are officially deemed to be employees, UK Sport would have to pay pension and national insurance costs. This is currently avoided because athletes are not regarded as members of staff."

No wonder UK Sport is fighting dirty. If Varnish establishes that Team GB's Olympic athletes are employees and not self-employed the employment terms of all Olympic athletes would have to change going forward. That would put a dent in the Tokyo medal factory's funding. And possibly £££s would be owed in back-dated payments to athletes from previous Olympics. That would be expensive...

This will be a slow burner, legal actions always are, but worth keeping some popcorn to hand

 

[Craigee]

Talking about the differences between British Cycling staff being employees and athletes being funded giving the athletes less rights, I always struggle to get my head round the fact that staff are paid more than the athletes. Democracy and the follow on bureaucracy (legalised thieving) is very ugly indeed. The staff only have their over paid jobs because of the athletes and yet the staff get better paid and have more rights. It's the tail wagging the dog isn't it?

 

[fmk_RoI]

Re:

Talking about the differences between British Cycling staff being employees and athletes being funded giving the athletes less rights, I always struggle to get my head round the fact that staff are paid more than the athletes. Democracy and the follow on bureaucracy (legalised thieving) is very ugly indeed. The staff only have their over paid jobs because of the athletes and yet the staff get better paid and have more rights. It's the tail wagging the dog isn't it?

You seem to be choosing to overlook the fact that athletes have other income arising as a direct consequence of their being members of the GB squad, and the fact that BC helps them considerably with that. Many marketing requests are funnelled through British Cycling.

 

[Wiggo's Package]

Re: Re:

CW's take:

http://www.cyclingweekly.com/news/latest-news/jess-varnish-takes-legal-action-british-cycling-uk-sport-358338

'If Varnish now pursues with legal action and her claim is successful, there will be a major shake-up in the way that UK Sport-funded athletes are perceived. They would be treated as employees, and therefore entitled to a pension and have their funding taxed at 20 per cent. It would also potentially open the way for other athletes to take legal action against British Cycling and UK Sport, and make it difficult for riders to be dropped from the national programme.

A source close to Varnish told the BBC that: “She’s not doing this for money. She’s frustrated that neither UK Sport nor British Cycling have changed the grey situation that athletes still remain in. Athletes still have no real rights, no pensions, no grievance and whistleblower procedures, and no course of action, outside of civil action. There are some really deep-rooted issues which she’s passionate about.” It is still possible that Varnish’s claim could be settled out of court, although if Varnish is seeking a change in the way that athletes are treated rather than for financial compensation, then this seems unlikely'

 

[yaco]

I hope Varnish has deep pockets - These types of legal actions are usually costly drawn out events in which the defendant's use many varied delaying tactics - Interested in the view of other lottery funded athletes.

 

[brownbobby]

Re:

Talking about the differences between British Cycling staff being employees and athletes being funded giving the athletes less rights, I always struggle to get my head round the fact that staff are paid more than the athletes. Democracy and the follow on bureaucracy (legalised thieving) is very ugly indeed. The staff only have their over paid jobs because of the athletes and yet the staff get better paid and have more rights. It's the tail wagging the dog isn't it?

Alternative view....the chance for so many athletes to develop their talents into potentially lucrative careers only exists due to the work of staff and coaches developing and implementing hugely succesful programmes for both coaching and funding models.
I wonder how many potentially great cyclists in the 70's and 80's ended up as accountants because there were no programmes in place to identify and nurture their natural talents

 

[thehog]

Re:

I hope Varnish has deep pockets - These types of legal actions are usually costly drawn out events in which the defendant's use many varied delaying tactics - Interested in the view of other lottery funded athletes.

You have no idea what you are talking about. Since the Woolf reforms in the UK, with the change of Civil Peocedure Rules, civil action is neither expensive nor difficult and certainly not drawn out or be able to be delayed. Compared to most counties it’s relatively fast with costs covered by the losing side. Many law firms will cover costs until settlement is received.

 

[Wiggo's Package]

Re:

I hope Varnish has deep pockets - These types of legal actions are usually costly drawn out events in which the defendant's use many varied delaying tactics - Interested in the view of other lottery funded athletes.

Most likely Varnish's lawyers are running this case on a no win/no fee basis - if so Varnish will not end up out of pocket on legal fees - and lawyers only take on no win/no fee cases if they're very confident they're going to win (for obvious reasons)

In the UK discrimination claim damages are un-capped and high profile cases can end up with 6 figure payouts - factor in today's comments that Varnish doesn't want to settle because establishing new legal precedents is more important and this could get very interesting

Having said that everyone has their price and it will be helluva lot cheaper for BC/UK Sport to pay Varnish a fortune to go away than to have to pay 20%+ more in staff costs across the board going forward

 

[fmk_RoI]

Re: Re:

Having said that everyone has their price and it will be helluva lot cheaper for BC/UK Sport to pay Varnish a fortune to go away than to have to pay 20%+ more in staff costs across the board going forward

Have you read the actual reporting of this? She's saying she won't settle: this is about a principle.

 

[thehog]

Re: Re:

I hope Varnish has deep pockets - These types of legal actions are usually costly drawn out events in which the defendant's use many varied delaying tactics - Interested in the view of other lottery funded athletes.

Most likely Varnish's lawyers are running this case on a no win/no fee basis - if so Varnish will not end up out of pocket on legal fees - and lawyers only take on no win/no fee cases if they're very confident they're going to win (for obvious reasons)

In the UK discrimination claim damages are un-capped and high profile cases can end up with 6 figure payouts - factor in today's comments that Varnish doesn't want to settle because establishing new legal precedents is more important and this could get very interesting

Having said that everyone has their price and it will be helluva lot cheaper for BC/UK Sport to pay Varnish a fortune to go away than to have to pay 20%+ more in staff costs across the board going forward

There are no punitive damages in the UK unlike the US. She can potentially only claim “loss revenue” for a short amount of time and loss of character. In an Olympic Year if she could be considered a medalist that might be £250,000 - £300,000. Employment tribunals cap at £42,000 if the case is heard on that track. A judge will decide first where the case goes, court or tribunal.

What UK Sport and British Cycling most fear is this case sets a precedence which several other claims base their claims upon. Likely scenario is that settle before it gets that far.

 

[veganrob]

Re: Re:

Having said that everyone has their price and it will be helluva lot cheaper for BC/UK Sport to pay Varnish a fortune to go away than to have to pay 20%+ more in staff costs across the board going forward

Have you read the actual reporting of this? She's saying she won't settle: this is about a principle.

Wiggo didn't claim she would, could or should. Maybe you should read his statment again.

 

[Wiggo's Package]

Re: Re:

Having said that everyone has their price and it will be helluva lot cheaper for BC/UK Sport to pay Varnish a fortune to go away than to have to pay 20%+ more in staff costs across the board going forward

Have you read the actual reporting of this? She's saying she won't settle: this is about a principle.

I don't doubt that for Varnish the principles at stake are very important - firstly she'd like to establish that Olympic athletes are employees, have employment rights and should be treated with respect; secondly she'd like a court to confirm that she suffered discrimination at the hands of BC/Sutton

But if Varnish's case is being run on a no win/no fee basis she won't be calling the shots on how the litigation plays out - the lawyers will

And I think I'm right in saying that if BC/UK Sport make a payment into court in an attempt to settle the case which is refused by Varnish and the tribunal then awards Varnish a lesser amount then BC/UK Sport won't have to pay Varnish's legal fees even though she's lost the case - and Varnish's lawyers will not want to risk that happening

So it would be great if Varnish could establish that Olympic athletes should have proper employment rights (in a parallel case Uber are running out of appeals against rulings that their gig economy business model is a sham); and it would be great if a court confirmed that Varnish suffered discrimination at the hands of BC/Sutton (because too many dinosaurs are still in denial about that) - but there are reasons why that may not happen which may be out of Varnish's control

 

[Craigee]

Re: Re:

Talking about the differences between British Cycling staff being employees and athletes being funded giving the athletes less rights, I always struggle to get my head round the fact that staff are paid more than the athletes. Democracy and the follow on bureaucracy (legalised thieving) is very ugly indeed. The staff only have their over paid jobs because of the athletes and yet the staff get better paid and have more rights. It's the tail wagging the dog isn't it?

Alternative view....the chance for so many athletes to develop their talents into potentially lucrative careers only exists due to the work of staff and coaches developing and implementing hugely succesful programmes for both coaching and funding models.
I wonder how many potentially great cyclists in the 70's and 80's ended up as accountants because there were no programmes in place to identify and nurture their natural talents

Well it is another view but I still say it's the tail wagging the dog. The staff get better contracts and move on to better higher paid jobs all thanks to the fact they had it easy in assisting great athletes. You're only as good as the rider. Remember too that all the riders got into the program thanks to, in many cases their amateur coach who helped them get there. Then the BC staff cash in on this. It's typical buearucracy in today's world.

 

[yaco]

Re: Re:

I hope Varnish has deep pockets - These types of legal actions are usually costly drawn out events in which the defendant's use many varied delaying tactics - Interested in the view of other lottery funded athletes.

You have no idea what you are talking about. Since the Woolf reforms in the UK, with the change of Civil Peocedure Rules, civil action is neither expensive nor difficult and certainly not drawn out or be able to be delayed. Compared to most counties it’s relatively fast with costs covered by the losing side. Many law firms will cover costs until settlement is received.

I dont know what I'm talking about YET in the initial court hearings to determine whether Varnish could take her case further ( BC's legals went for the jugular in asking for the full range of court costs if Varnish lost ) - So there was no backing down from BC's legal eagles - And as your last sentence states if Varnish passes the Employee Tribunal to start civil proceedings and loses she is up for costs - And BC's legal teams will be as pedantic as possible which leads to an increase in total costs.

 

[yaco]

I will also add that BC ultimately on behalf of Olympic Sports and the Government want the status quo retained - That is Olympic funded athletes continue to receive 'Grants', rather then being considered employees - Think Wiggo's Package has articulated the likely outcome of the Varnish case.

 

[fmk_RoI]

Re: Re:

I dont know what I'm talking about YET in the initial court hearings to determine whether Varnish could take her case further ( BC's legals went for the jugular in asking for the full range of court costs if Varnish lost ) - So there was no backing down from BC's legal eagles - And as your last sentence states if Varnish passes the Employee Tribunal to start civil proceedings and loses she is up for costs - And BC's legal teams will be as pedantic as possible which leads to an increase in total costs.

With all due respect yaco, you really don't appear to have a clue here:

The Telegraph has learnt British Cycling also had the option of submitting costs and deposit order applications against Varnish but did not do so.

 

[thehog]

Re: Re:

I dont know what I'm talking about YET in the initial court hearings to determine whether Varnish could take her case further ( BC's legals went for the jugular in asking for the full range of court costs if Varnish lost ) - So there was no backing down from BC's legal eagles - And as your last sentence states if Varnish passes the Employee Tribunal to start civil proceedings and loses she is up for costs - And BC's legal teams will be as pedantic as possible which leads to an increase in total costs.

With all due respect yaco, you really don't appear to have a clue here:

The Telegraph has learnt British Cycling also had the option of submitting costs and deposit order applications against Varnish but did not do so.

Exactly. It’s very likely, even if Varnish fails in her attempt for compensation that a judge will not issue a costs order against her. Any sensible claim a judge would not expect an individual to consume the costs of both sides, British Cycling are alone on this one and will likely settle before it gets to the stage of document discovery.

 

[thehog]

Re:

I will also add that BC ultimately on behalf of Olympic Sports and the Government want the status quo retained - That is Olympic funded athletes continue to receive 'Grants', rather then being considered employees - Think Wiggo's Package has articulated the likely outcome of the Varnish case.

It is irrevant to a civil claim for discrimination. Whether she is seen as an employee or not does not limit her ability to claim compensation.

Her real power is to issue witness summons and have Sutton and Brailsford provide evidence. They cannot refuse such request or face a criminal charge.

 

[yaco]

Re: Re:

I dont know what I'm talking about YET in the initial court hearings to determine whether Varnish could take her case further ( BC's legals went for the jugular in asking for the full range of court costs if Varnish lost ) - So there was no backing down from BC's legal eagles - And as your last sentence states if Varnish passes the Employee Tribunal to start civil proceedings and loses she is up for costs - And BC's legal teams will be as pedantic as possible which leads to an increase in total costs.

With all due respect yaco, you really don't appear to have a clue here:

The Telegraph has learnt British Cycling also had the option of submitting costs and deposit order applications against Varnish but did not do so.

Exactly. It’s very likely, even if Varnish fails in her attempt for compensation that a judge will not issue a costs order against her. Any sensible claim a judge would not expect an individual to consume the costs of both sides, British Cycling are alone on this one and will likely settle before it gets to the stage of document discovery.

So in effect your thought's are similar to Wiggo's Package in that there will be a mutually agreed settlement - We'll have to wait and see what happens but I suppose the devil will be in the detail.

 

[fmk_RoI]

Re: Re:

I suppose the devil will be in the detail.

Which is quite regrettable, really, given detail is your weak suit.

 

[thehog]

Re: Re:

I dont know what I'm talking about YET in the initial court hearings to determine whether Varnish could take her case further ( BC's legals went for the jugular in asking for the full range of court costs if Varnish lost ) - So there was no backing down from BC's legal eagles - And as your last sentence states if Varnish passes the Employee Tribunal to start civil proceedings and loses she is up for costs - And BC's legal teams will be as pedantic as possible which leads to an increase in total costs.

With all due respect yaco, you really don't appear to have a clue here:

The Telegraph has learnt British Cycling also had the option of submitting costs and deposit order applications against Varnish but did not do so.

Exactly. It’s very likely, even if Varnish fails in her attempt for compensation that a judge will not issue a costs order against her. Any sensible claim a judge would not expect an individual to consume the costs of both sides, British Cycling are alone on this one and will likely settle before it gets to the stage of document discovery.

So in effect your thought's are similar to Wiggo's Package in that there will be a mutually agreed settlement - We'll have to wait and see what happens but I suppose the devil will be in the detail.

The very nature of civil procedure encourages and expects both parties to come to a settlement, court is only for those who ultimately cannot agree. Maximum payout from the court will only occur if there is evidence of attempts to settle. So it’s in Varnish’s counsels interest to at least speak with UK Sport and British Cycling. That is the law rather than anyone’s point of view.

 

[Wiggo's Package]

Re: Re:

Varnish allowed back to race for organisation she's suing? Seems unlikely

http://www.cyclingweekly.com/news/latest-news/lawyers-will-green-light-jess-varnish-return-358618

More likely this is BC's tactical response to Varnish saying she's taking the litigation all the way on principle

BC hinting at a place back on the team if she plays nice...

 

[deviant]

As above, i expect her to get an out of court settlement and a spot back on the Olympic Program....it should be enough to buy her silence, her press release sounds very principled but she's still young (26) and a load of money and her career back will be very tempting.
Her profile is now higher than ever in the British media and i'd expect a return to cycling to come with lucrative endorsement deals for her...hard to turn that down at her age, buy a house, make herself financially secure and make use of her world class talent/body while she's still young enough.
Job done for BC.

 

[Big_Blue_Dave]

Couple of things to add here. Firstly, not all staff members at BC (and certainly a large number outside the WCPP) or other sporting organisations earn more than the non-taxable grant that athletes receive. Of course, there are different levels of grant depending on your expected medal prospects, so some athletes are granted more than others. These athletes also do not have to pay for coaching, travel, medical/physio bills and in some cases smaller things like free phone contracts as these are all covered by the sports governing body mostly via funding from UK Sport and partly from income generated by the sporting body.

If Jess does go onto win this case, Olympic sport funding in the UK will likely cease to exist and it would also likely see the end of what we see now, whereby the athletes do not have to pay for the coaching and access to the training ground/velodrome/courts. This would reduce sport in the UK back to an amateur level similar to what was happening prior to the National Lottery as UK Sport would likely just decide to end funding except for travel costs to the Olympics at the detriment to the performance of the athletes. This would mean these athletes needing to self fund their sporting endeavours via work leaving less time for training and recovery which they do not have to do at this moment.

It could easily be said that the phrase cutting off your nose to spite your face would very much come to mind over this case.

Personally, I don't see athletes as employees in the UK. The State provides funding to allow the individual to perform at the best of their ability on a tax free basis, and then allows the individual to earn an income through prize money and other personal sponsorship deals which is then taxed on. It would be interesting to see how well the performances and therefore the sponsorship levels will hold out if all of what is received now is stopped.

 

[Wiggo's Package]

Re:

Couple of things to add here. Firstly, not all staff members at BC (and certainly a large number outside the WCPP) or other sporting organisations earn more than the non-taxable grant that athletes receive. Of course, there are different levels of grant depending on your expected medal prospects, so some athletes are granted more than others. These athletes also do not have to pay for coaching, travel, medical/physio bills and in some cases smaller things like free phone contracts as these are all covered by the sports governing body mostly via funding from UK Sport and partly from income generated by the sporting body.

If Jess does go onto win this case, Olympic sport funding in the UK will likely cease to exist and it would also likely see the end of what we see now, whereby the athletes do not have to pay for the coaching and access to the training ground/velodrome/courts. This would reduce sport in the UK back to an amateur level similar to what was happening prior to the National Lottery as UK Sport would likely just decide to end funding except for travel costs to the Olympics at the detriment to the performance of the athletes. This would mean these athletes needing to self fund their sporting endeavours via work leaving less time for training and recovery which they do not have to do at this moment.

It could easily be said that the phrase cutting off your nose to spite your face would very much come to mind over this case.

Personally, I don't see athletes as employees in the UK. The State provides funding to allow the individual to perform at the best of their ability on a tax free basis, and then allows the individual to earn an income through prize money and other personal sponsorship deals which is then taxed on. It would be interesting to see how well the performances and therefore the sponsorship levels will hold out if all of what is received now is stopped.

If Team GB's athletes are deemed to be employees as a result of the Varnish case Olympic funding won't drop off a cliff - it will just have to be structured differently

The grant money that currently goes direct to the athletes, etc would have to go to the governing bodies instead who would then pay them salaries

An important consequence would be that income tax and national insurance would have to be paid on those salaries (roughly 20% on top) and the question would be how that additional cost is funded - more money from the Lottery/central government? Reduction in take home pay for athletes? Less athletes on the Olympic programme? IMO the last option is most likely to happen

But a 20% increase in salary costs is not such a big deal in the wider context of all the other areas where money is spent. And all those other costs (permanently employed governing body managers/coaches, equipment, travel, rent for premises, medical bills, etc) would be unchanged

UK Sport's Olympic funding model (not just the no employment rights for athletes thing but also the whole win medals or lose funding thing) has led to unethical practices and unsavoury behaviour becoming the norm in many Olympic sports - the scandals just keep coming

Time to clean house - and if Team GB wins a few less Olympic medals a a result then personally I would have no problem with that