Oxford Undergraduate Law & Policy Review
Submit

An Unlevel Playing Field: Why Employment Law is Failing the Modern Athlete

Introduction

To the layperson, athletes are highly successful individuals. One may assume that competing at the Olympics and winning an Olympic medal is the pinnacle of success and will guarantee a comfortable life. In reality, alongside training, athletes are working full-time jobs, from engineers to food delivery drivers to influencers.1 58% of a sample of elite athletes surveyed in 2020 reported themselves as not being financially stable,2 resulting in many being forced to give up entirely on their Olympic dream.

This problem pervades the sports industry and continues to exist due to a fundamental mischaracterisation of athletes. Apart from certain major commercial team sports such as football, rugby or basketball, most elite athletes fall outside of the scope of employment law and are generally not employees or workers for legal purposes. Consequently, this article will aim to combat this narrative, examining athletes from an employment law perspective. This process will involve an outline of the statutory protection and benefits granted to employees and workers, then an examination of the legislative and common law framework, and finally an application of this framework to athletes.

English employment law typically distinguishes between three types of people;3 employees, the self-employed who are in business on their own account and undertake work for their clients or customers, and thirdly, workers (most often referred to under the colloquial classification of ‘limb b’ workers under s230(3)(b) Employment Rights Act 1996.4 This discussion will focus on two categories: employees and ‘limb b workers’, noting that whilst all employees are workers, not all workers are employees.

I – The legal protection afforded to employees/workers

Employment law offers tiers of protection, with the highest protection offered to employees. Such rights and benefits include, but are not limited to, wage protection, protection against discrimination and whistleblowing, maternity and paternity leave, and the right to receive paid annual leave.5 Additional safety requirements necessitate employers, so far as is reasonably practicable, to ensure the health, safety and welfare of their employees at work, including safe premises, equipment and adequate welfare facilities.6

To fully understand such protection, one must consider employment law’s rationale and underlying principles. It aims to regulate working relationships, safeguarding vulnerable individuals who would potentially be at risk of exploitation, such as being paid too little, required to work excessive hours or be subjected to other forms of unfair treatment.7 The modern world of work is rapidly evolving, and employment law aims to develop alongside cultural shifts, particularly seen with recent expansions to the breadth of ‘limb b workers’, moving beyond the paradigm case of employment. Such inclusions were intended “to extend the benefits of protection to workers who are in the same need of that type of protection as employees stricto sensu”.8 Therefore, the core underlying principle is a protection of what is inherently an imbalance of power between employers and their subordinates. As explained in Uber, “the modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose.”9 In doing so, Lord Leggatt affirmed earlier dicta that “the ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.”10

II – The application of employment status tests to elite athletes

We will now assess whether elite athletes fit within employee status.

Employee

1. Statute

A few statutes tackle employees, but with minor distinctions, with the generally cited definition lying in s230(1) ERA as an “individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.” “A “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.”11

2. Application

To ascertain whether the contract is a contract of employment, there is no universally accepted singular test but rather many different possible considerations, whereby all the relevant facts must be assessed holistically to determine the nature of the parties’ relationship. Within this, many tools can be used to help elucidate the statutory test, such as “mutuality of obligation”, “irreducible minimum”, “umbrella contracts”, “substitution”, “predominant purpose”, “subordination”, “control”, and “integration”.12 The most frequently adopted “starting point”13 is that of Ready Mixed Concrete (RMC).14 RMC sets out three criteria for a contract of employment. Firstly, the servant agreed in consideration of a wage or other remuneration to provide his own work and skill in the performance of some service for his master. Secondly, the servant agreed expressly or impliedly that, in performance of the service, he would be subject to the control of the other party sufficiently to make him the master and finally, the other provisions of the contract were consistent with its being a contract of service.15 Whilst this language appears anachronistic, it can be summarised as a mutuality of obligation, control and an exploration of the rest of the contract.

The first two factors are a major focus, as necessary, but not necessarily sufficient, conditions of a contract of employment, whereby a consideration of the cumulative effect of the full factual matrix is required.16 Further, even once decided that these factors are present, they remain to be considered as relevant factors in the overall assessment, particularly with regards to the extent of control.17 In reference to athletes, it appears that the major hurdle to overcome is mutuality of obligation, stemming from a mischaracterisation of the nature of sports work. This will be seen in an analysis of Varnish v British Cycling,18 and the ensuing appeal heard by the Employment Appeal Tribunal (EAT),19 concerning the non-renewal of a podium performance agreement, claiming unfair dismissal and sex discrimination.

(a) Mutuality of obligation

In RMC, MacKenna J emphasises that mutuality of obligation includes “wage or other remuneration” as “otherwise there will be no consideration, and without consideration no contract of any kind.”20 This includes a need for the employee to provide personal service.

Wage or other remuneration

Athlete income arises from various sources, including sponsorships, government support and prize winnings. Often this income will be indirect, as benefits in kind. In the UK this is estimated to be ~£36-60k per athlete at podium level.21 Additionally, athletes may receive a conditional and means-tested grant (an Athlete Performance Award (APA)) through an agreement with UK sport. This is framed as a direct payment to athletes as a contribution to their ordinary living and personal sporting costs, with the highest band offered being £28k per annum.22 When dissecting an athlete’s salary, the language of payment (variously described as a stipend, scholarship, award or grant)23 appears to contribute to a culture of viewing sport separately to work.

The unique and pluralist nature of income sources creates difficulties for courts applying a traditional analysis. This can be seen in Varnish, where the Employment Tribunal (ET) stated that there was no wage/work bargain as Varnish did not work in exchange for a wage and neither UK Sport nor British Cycling provided work or paid her.24 This analysis reveals three distinct but interconnected points; the difficulty of benefits in kind, the mutual nature of work and the variation of payments.

Benefits in kind

The ET fundamentally misapprehended the nature of an athlete’s bargain and the work provided. The focus was that Varnish did not receive money,25 viewing the APA as a bonus contribution rather than payment. Only much later were benefits in kind discussed, yet they were labelled insufficient and as services rather than remuneration.26 Whilst the EAT appreciated their existence,27 they remained firm that they were provided in order for Varnish to train and compete at the highest levels, but were not remuneration for doing so. Their logic was that to conclude otherwise would be akin to saying that the tools given to a person to enable them to do their job were that person’s pay for doing it, with an exception for certain tools, such as those that have “an intrinsic value and the parties agree that the employee can earn the right to keep the tools once the job is done.”28

However, such binary distinction fails to recognise that there is a blurred line between a ‘tool’ and ‘payment’, which is only more present in the unique situation of sport, whereby the benefits improve an athlete’s body and thus their performance, meaning there is intrinsic value even if lacking tangibility. Furthermore, benefits such as physiotherapy appointments, access to equipment, nutrition etc., are all offered through streamlined services which reduce the cost for institutions overall, instead of requiring them to pay athletes additional income to seek these benefits individually. Furthermore, weight was placed on there being no obligation to reap certain benefits, such as psychological support, with the voluntary nature revealing how these were not awarded in exchange for work or skill.29 However, to achieve optimal performance and team selection, an athlete would, in practice, be required to utilise all available services. Moreover, the EAT’s agreement that it would be highly unusual for payment to be composed entirely of discretionary benefits fails to appreciate that this unique payment method and structure of athletes should in itself be indicative of an employment relationship.30

Further comparison can be made to athletes who have been labelled employees, specifically in the football case of Walker v Crystal Palace,31 which reveals an arbitrary legal limit. Varnish attempted to rely on Walker, yet it was held that the “mere fact that training done by an athlete in one sport or case was found to comprise work…does not mean that the same must apply to any other athlete who trains hard for the common purpose of achieving success for team or country. To take that approach would be to focus on one factor (training to compete) out of the many that must be weighed and considered in forming an overall picture.”32 Specific focus was given to the fact that the game of football is a “trade”.33 Building on academic criticism, specifically in relation to a need to appreciate the broader environment in which elite athletes provide their services,34 this appears to create an unprincipled distinction. This can be further revealed when comparing Varnish’s cycling career to Tour de France cyclists, where specific club/team contracts exist. In both situations, structurally, the services provided and obligations are the same.35 Yet one athlete receives sufficient pay and protection, whilst the other does not. The legal test should focus on the nature of the relationship and practical implications, not the commercial popularity of sport. If anything, slower commercial development reveals a greater need for employment law protection.

The nature of ‘work’

Furthermore, the focus must be on mutuality of obligation. The ET failed to recognise the ways in which Varnish owed obligations to the relevant bodies. A particular lack of focus was placed on external elements of training, such as media or press appearances, which only received two paragraphs worth of attention,36 and only focused on the guidelines and commercial restrictions, rather than appreciating that an athlete, in representing their respective institution(s), is actively serving in a promoter role.37 This requires one to understand the shifts in the sports industry, which has led to increased performance expectations and thereby, increased time spent training, competing, and fulfilling external obligations such as media.38 This work directly benefits sporting institutions, drawing attention that results in increased opportunity for funding and income, benefitting from athletes’ branding and performance. Underpinning this is the fact that the current view of sports work fails to align with professional guidance.39

Variation of monetary awards

Varnish’s awards and methods of payment were not only varied, but varied on an assessment of future potential,40 which is unlike conventional wages.41 This difficulty could be reframed. The level of past efforts, such as performance in training and competitions would directly impact an assessment of future potential, albeit perhaps not in a uniform fashion. This reveals the complexity of sport assessments, compounded by natural non-linear athletic progression. Regardless, a general causal relationship between past work and benefits remains. Thus, Varnish appears to rely on circular reasoning. She was training in ‘hope’ of selection, yet the selection was contingent and directly impacted by the result of her training, thereby creating a continuous, reciprocal relationship that enforced mutual obligations. In order to continually be considered for awards and selection, Varnish was compelled to train and develop, with the provision of training support and services being directly dependent on this essential input. It is more than merely an incentive or encouragement to facilitate training and personal performance. If she did not meet these obligations, selection for a national Olympic team (being dependent on national federation selection) would not be possible. In this sense, the variation of monetary awards could directly support her employee status, as it reveals her dependency on these bodies.

Personal performance and substitution

Mutuality of obligation also requires work to be done by the individual, rather than allowing for the employee to substitute themselves for another. Returning to RMC, Mackenna J states that “freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service”, with the key qualification being that “a limited or occasional power of delegation may not be.”42 Athletes cannot delegate their work, be it at a training, media or competition level. However, when this was applied in Varnish, the ET used its previous conclusion that there was no performance of work to detract from Varnish’s personal performance. Rather, “she was personally performing a commitment to train in accordance with the individual rider agreement”.43 This reveals the interaction between the different stages of reasoning, whereby such personal commitment is essentially neutralised by an earlier discussion of work.

(b): Control

MacKenna J in RMC expanded on control, stating that it “includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant.”44

The level of required control for employment status has been considered afresh by the Supreme Court in PGMOL,45 concerning football referees. It was held that sufficient control consistent with an employment relationship may take many forms and is not confined to the right to give direct instructions to the individuals concerned,46 or the right to intervene in every aspect of performance.47 Notably, this case has been remitted to the First Tier Tribunal to decide whether the referees were under a contract of employment, leaving the state of the law in a position of “unacceptable” uncertainty.48

This may signal a promising development in the law, considering how athlete contracts incorporate strict terms addressing their location, schedule, training, conduct-requirements, essentially spreading into all areas of their life. This can be contrasted with the approach of the ET in Varnish, which likened the athlete-coach relationship to that of a parent and their child in youth.49 It is likely that, with the development in PGMOL, it would be easier to point out the presence of control in athlete-coach relationships by making reference to the practical reality and long-term relationship of trust and dependence. In particular, whilst a parent indeed asserts control over, for example, their child’s bedtime, they provide a level of safety and security which is lacking for athletes, evidenced by the immediate effects of non-renewal. It fails to appreciate the convoluted athlete-coach relationship, whereby the coach benefits from the athlete’s performance as it appears to be a direct reflection of their skill. Furthermore, there is the political aspect to coaching, whereby the athlete is dependent on the coach’s input and attention to continue to be selected, with this likely being connected to the high frequency of coaches abusing their power. With this consideration, the ET focused on Varnish’s ability to have her own coach,50 failing to appreciate the potential distrust or relational impact that this decision could have.

(c) Terms of contract generally

The third condition in RMC is broad and unspecific, yet in practice simply requires one to take a step back to look at the whole contract, alongside any other relevant circumstances,51 to ascertain the true agreement, going beyond standard contract principles.52 In HMRC v S & L Barnes Limited,53 considering whether a rugby pundit was employed under disguised employment, it was held that no single factor is decisive and no exhaustive list can be compiled.54 Nonetheless, specific factors were listed as consistent with a relationship of employment, with those most comparable to Varnish relating to contractual obligation to perform services individually without a right of substitution and the need for written consent to engage in new commercial activities.55

This section offers the argument that the tribunals and courts currently may be adopting a hyper-focused approach on monetary payment and too narrow an appreciation of the true scope of an athlete’s job.

Although Varnish did not succeed in her claim as an employee, the EAT did provide a statement that brings a glimmer of hope, especially in light of any errors of the ET being only errors of fact, rather than law. The EAT stated that this “does not mean that in another case, where perhaps the contractual provisions, and the balance between services provided to and performed by the athlete, are different, the training done by a cyclist [and presumably any athlete] could not be found to amount to work.”56 Perhaps a better understanding of the law may allow athletes to ensure that the agreements they enter into with their sporting bodies confer employee status in order to enjoy the protections that come along with it. Alternatively, this may be accelerated by promoting and focusing instead on social change, encouraging greater athlete protection within existing contracts, such as guaranteed pay.

Workers (‘limb (b) workers’)

We will now consider whether athletes can be protected under the category of workers. Workers are defined by a looser need for control and mutuality of obligation, connecting to the lesser statutory protection, such as no protection against unfair dismissal, no statutory redundancy pay and no parental leave.57 This category has seen various expansion recently as the working world has expanded to meet growing atypical labour patterns. However, “the dust is beginning to settle”, with the determination of worker status not being “very difficult in the majority of cases, provided a structured approach is adopted, and robust common sense applied.”58

1. Statute

Under s230(3) ERA 1996 a worker is:

“an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.

2. Application

The Development of Uber

Although Varnish was denied worker status, we consider whether the subsequent Supreme Court case of Uber could signal a positive development in the law for athletes.59 In Uber, worker status was awarded to Uber drivers, demonstrating a “major victory” to workers within the gig economy.60

Firstly, the obvious differences must be noted. Gig workers generally provide services to end customers, often on a task-by-task basis and often over online applications.61Athletes are not working via online platforms, nor are they explicitly providing a result to end customers in the same way that Uber drivers bring clients to their destination. Uber drivers offer a standardised service which leads to drivers being perceived as substantially interchangeable from Uber, with Uber, rather than the drivers, obtaining this benefit.62 Whilst athletes represent their national federations and sporting institutions, with restrictions on the way they must present themselves, they remain markedly unique.63

Dependency and subordination

Nonetheless, the dependence and subordination of an athlete to sporting bodies mirrors the control exerted in the gig economy, since both bodies rely on the performance of the individual for personal gain. Both types of individuals have limited control over their working conditions, and both are often on short-term, unstable contracts. Thus, whilst integration into a business and subordination is not a freestanding and universal characteristic of being a worker,64 such integration and the inability to market personal services to anyone else gives rise to dependency on a particular relationship which may also render an individual vulnerable to exploitation.65

Financial skill and risk

Consequently, within Uber, a focus was on the fact that Uber drivers had “little or no ability to improve their economic position through professional or entrepreneurial skill,” whereby their only way to improve was to work longer hours.66 A strong indication of self-employment and factors that point away from employment status is financial risk, connected to the regular payment and payment protection offered to employees (such as sick pay). This goes back to RMC which considers where ownership of assets lies (i.e. does the employee or employer own the tools) and who bears the chance of profit and/or risk of loss.67

Whilst athletes can improve their economic position directly from their athletic performance, such as external sponsorships (with this being exactly what Varnish did, earning £35k/annually68), this does not defeat the dependency on national federations. Sporting bodies enjoy “extraordinary autonomy”,69 internal procedures,70 and monopoly power under the “one-federation principle”,71 all of which acts against athlete protection.72 In fact, I argue that the ET afforded too much weight to Varnish’s relatively moderate level of external success, especially considering that this success was directly connected to her ability to perform and train as dictated by the relevant sporting bodies. Moreover, the assets and tools (such as training facilities) are all necessarily provided by such sporting institutions. Potentially the chance of profit and risk of loss lies in the athlete as only they individually compete, but one must consider the wider instability of athletes. This is demonstrated in Varnish, where the non-renewal effectively ended her competitive career, with this risk of loss lying outside of her control. Furthermore, such bodies incorporate strict media restrictions, which can harm an athlete’s sponsorship potential, seen most vividly with the operation of Rule 40 in the Olympics.73

No irreducible minimum

Outside of Uber, the recent development in Nursing and Midwifery Council,74 as applied in Sejpal,75 has developed the concept of an irreducible minimum of obligation. Mutuality of obligation goes principally to whether there is an agreement, as fundamental to establish the existence of a contract,76 but the Court of Appeal has clarified that “there is no need and no purpose served, in seeking to introduce the concept of an irreducible minimum of obligation” (in the sense of a minimum amount of work).77 In Varnish, the ET expressed hesitancy as to whether “mutuality of obligation is required as a distinct element under limb (b).”78 They then proceeded to state that if mutuality is required, then, using the prior reasons “in relation to whether the claimant was an employee…there is no mutuality of obligation”.79 However, the earlier analysis hinged on the idea of an irreducible minimum.80 Moreover, the ET stated that if “there is some minimum amount of work that the claimant is obliged to perform personally”, then Varnish would fail this test as well.81 Ultimately, this demonstrates the force in the idea that if Varnish were decided today, in light of such developments, it would likely be decided differently.

Statutory rationale

Finally, there is a need to move to a wider consideration of statutory purpose and Parliamentary intention. Throughout this discussion, I have revealed the economic dependency of athletes and their weaker bargaining position. One must appreciate the absence of independent athlete organisations advocating for worker status, paired with general governmental reluctance to interfere with sport, all of which results in a sector organised in favour of the interests of those with greater power.82

Without employment law protection, athletes such as Varnish are unable to achieve any recompense for actions that adversely impact their careers. Varnish’s only alternatives would be to appeal the decision, or to try and bring a claim under the Equality Act 2010, with this carrying significantly less protection.83 Such difficulty is further seen in a lack of health and welfare protection, with rising focus on impact sports and mental health. Currently, such issues are dealt with through negligence,84 or as direct criminal/tortious abuse.85 However, there is a high threshold to be met, with particular lack of protection in non-fault-based injuries or illnesses (i.e. overuse injuries), which would be covered under employment law, as demonstrated through a footballer’s disability discrimination claim on the basis of non-selection following a cancer diagnosis.86

III – Conclusion

With respect to employee status, we have seen that the tribunals currently may be adopting a hyper-focused approach to monetary payment and too narrow an appreciation of the true scope of an athlete’s job. With respect to worker status, we have seen how the decision in Uber may pave the way for a Varnish-like case to be decided differently by the ET now. Crucially, the application of employment labelling is not a necessary prerequisite for increased protection. It remains in the power of national bodies to develop appropriate wage protection, sick pay or sufficient safety measures. However, the law must remain cognisant of the potential for powerful monopoly bodies to be driven by capitalism.

Athletes live unique lives within a rapidly evolving market, affected by mass commercialisation, globalisation and technical advances. Certain facets of athletes’ lives and the agreements they make with their sporting bodies may create difficulties under the current tests of employment, even at the more discretionary worker stage. However, in light of recent authorities, there remains a genuine possibility for athletes to achieve either employee or worker status.

Notes

  1. Mary Whitfill Roeloffs, ‘These Olympic Athletes Work Double Time to Make Ends Meet (As A Birthday Party Clown To OnlyFans Creators’ (Forbes, 5 August 2024) <https://www.forbes.com/sites/maryroeloffs/2024/08/05/olympic-athletes-work-second-jobs-onlyfans-birthday-party-clown-influencer-ilona-maher/> accessed 14 November 2025; Dale Fox, ‘Olympic rower Robbie Manson: ‘I’m making more from OnlyFans than I am from rowing’’ (Attitude, 7 August 2024) <https://www.attitude.co.uk/news/olympic-rower-robbie-manson-onlyfans-471258/> accessed 14 November 2025; Selina Wang, ‘Olympic silver medalist Ryo Miyake delivers food for Uber Eats to fund Tokyo 2020 dream’ (CNN Sports, 24 March 2021) https://edition.cnn.com/2021/03/23/sport/ryo-miyake-olympics-fencing-tokyo-2020-cmd-spt-intl accessed 14 November 2025 ↑

  2. Associated Press, ‘Global Athletes survey finds Olympic, elite athletes struggling financially’ (ESPN, 24 February 2020) <https://www.espn.co.uk/olympics/story/_/id/28771036/global-athlete-survey-finds-olympic-elite-athletes-struggling-financially> accessed 14 November 2025 ↑

  3. Nicola Newson, ‘Status of Workers Bill [HL]’ (House of Lords Library, 25 August 2021) <https://lordslibrary.parliament.uk/status-of-workers-bill-hl/> accessed 14 November 2025 ↑

  4. Hereby ERA ↑

  5. Predominantly arising under the ERA, with further developments including National Minimum Wage Act 1998; Neonatal Care (Leave and Pay) Act 2023; Working Time Regulations 1998 ↑

  6. Health and Safety at Work Act 1974 ↑

  7. Uber BV v Aslam [2021] UKSC 5 [71] ↑

  8. Byrne Brothers (Formwork) Ltd v Baird [2002] ICR 667 [17(4)] ↑

  9. Uber [70] ↑

  10. Ibid, referencing Ribeiro PJ in Collector of Stamp Revenue v Arrowtown Assets Ltd (2003) 6 ITLR 454 [35] ↑

  11. s230(2) ERA ↑

  12. Sejpal v Rodericks Dental [2022] EAT 91[7] ↑

  13. HMRC v PGMOL [2024] UKSC 29 [28] ↑

  14. Ready Mixed Concrete (South East) Ltd. v Minister of Pensions and National Insurance [1968] 2 QB 497 ↑

  15. Ibid 515o-d ↑

  16. PGMOL [30] ↑

  17. Ibid [32] ↑

  18. Varnish v British Cycling and UK Sport [2018] 12 WLUK 591 (hereby Varnish (ET)) ↑

  19. Varnish v British Cycling [2020] EAT 23 (hereby Varnish (EAT)) ↑

  20. RMC 515E ↑

  21. Andrew Smith and others, ‘The funding and employment status of elite athletes – A comparison of the UK, USA and Germany’ (LawInSport, 6 May 2016) <https://www.lawinsport.com/topics/item/the-funding-and-employment-status-of-elite-athletes-a-comparison-of-the-uk-usa-and-germany> accessed 14 November 2025 ↑

  22. Smith and others ↑

  23. Leanne O’Leary, Maximilian Seltmann and Vanja Smokvina, ‘Elite Athletes and Worker Status,’ (2024) 54(2) Industrial law Journal 248, 250 ↑

  24. Varnish (ET) [139-140] ↑

  25. Ibid [144] ↑

  26. Ibid [168] ↑

  27. Varnish (EAT) [54] ↑

  28. Ibid ↑

  29. E.g Varnish (ET) [170] ↑

  30. Varnish (EAT) [57] ↑

  31. [1910] 1 KB 87 ↑

  32. Varnish (EAT) [46] ↑

  33. Ibid [45] ↑

  34. O’Leary, Seltmann and Smokvina, 271-272 ↑

  35. Ibid, 269 ↑

  36. Varnish (ET) [226-227] ↑

  37. O’Leary, Seltmann and Smokvina, 271-272 ↑

  38. Ibid, 267 ↑

  39. Ibid, 267-271, focusing on the International Labour Organisation and the Centre for Sport and Human Rights White Paper on Child Labour in Sport: Protecting the Rights of Child Athletes (White Paper) ↑

  40. Varnish (ET) [147] ↑

  41. Ibid [148] ↑

  42. RMC 515 ↑

  43. Varnish (ET) [157] ↑

  44. RMC 515 ↑

  45. HMRC v PMGOL [2024] UKSC 29 ↑

  46. Ibid [76] ↑

  47. Ibid [69] ↑

  48. Hugh Collins and Judith Freedman, ‘Employment Status: The Death Throes of the Tests of Mutuality of Obligation and Control,’ (2025) 54(1) ILJ 161, 170 ↑

  49. Varnish (ET) [86] ↑

  50. Varnish (ET) [100] ↑

  51. Collins and Freedman, 164 ↑

  52. Autoclenz Ltd v Belcher [2011] UKSC 41, specifically [35] ↑

  53. [2024] UKUT 00262 (TCC) ↑

  54. Ibid [108] ↑

  55. Ibid [117] ↑

  56. Varnish (EAT) [49] ↑

  57. For a brief summary, and for more information, see Gov.uk ‘Employment Status’ (‘Gov.uk’) <https://www.gov.uk/employment-status/worker> accessed 10 November 2025 ↑

  58. Sejpal [7] ↑

  59. O’Leary, Seltmann and Smokvina, 272-273 ↑

  60. Harvard Law Review, ‘Recent Case: Uber BV v. Aslam’ (Harvard Law Review, 8 March 2021) <https://harvardlawreview.org/blog/2021/03/recent-case-_uber-bv-v-aslam_/> accessed 9 November 2025 ↑

  61. Patrick Brione, ‘Atypical workers in the gig economy’ (House of Commons Library, 16 July 2024) <https://commonslibrary.parliament.uk/atypical-workers-in-the-gig-economy/> accessed 14 November 2025 ↑

  62. Uber [101] ↑

  63. Although one must note that sporting bodies are positionally placed to take advantage of the marketability of individual athletes ↑

  64. Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32 [39] ↑

  65. Uber [74] ↑

  66. Ibid [101] ↑

  67. RMC 520-521 ↑

  68. Varnish (ET) [76] ↑

  69. Margareta Baddeley, ‘The extraordinary autonomy of sports bodies under Swiss law: Lessons to be drawn’ (2020) 20 ISLJ 3 ↑

  70. As specifically noted in Varnish (ET) [216], although caveated due to member application ↑

  71. Jacob Kornbeck, ‘What Can Sports Governing Bodies do to Comply with EU Antitrust Rules While Maintaining Territorial Exclusivity?’ (2020) 20(3–4) ISLJ 203 ↑

  72. O’Leary, Seltmann and Smokvina, 251 ↑

  73. Mike Morgan, ‘Rule 40 - An affront to athlete rights’ (Morgan Sports Law, 4 May 2016) <https://www.morgansl.com/en/latest/rule-40> accessed 14 November 2025 ↑

  74. Nursing and Midwifery Council v Sommerville [2022] EWCA Civ 229 ↑

  75. Sejpal [25-27] ↑

  76. Sejpal [23] ↑

  77. Nursing and Midwifery Council [48] ↑

  78. Varnish (ET) [239] ↑

  79. Ibid [241] ↑

  80. E.g. ibid [136-137] ↑

  81. Ibid [242] ↑

  82. O’Leary, Seltmann and Smokvina, 275 ↑

  83. Henry King, ‘Case comment: Varnish v (1) British Cycling (2) UK Sport (Employment Tribunal, 16 January 2019)’ (12KBW, 7 February 2019) <https://12kbw.co.uk/case-comment-varnish-v-1-british-cycling-2-uk-sport-employment-tribunal-16-january-2019/> accessed 14 November 2025 ↑

  84. Bringing with it the typical notion of duty of care, breach and damage caused by breach ↑

  85. With a specific development of coaches now being placed in positions of trust under criminal law, therefore coming within the scope of Sexual Offences Act 2003 ↑

  86. Jonas Gutierrez v Newcastle Utd (ET, 2016) ↑

Cite this article

Zara Cherry, ‘An Unlevel Playing Field: Why Employment Law is Failing the Modern Athlete’ (2026) 1 OULPR 9