FIFA and CSA Court Case

Written in 2015 by Haley Amster

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Background

Outrage over the use of turf instead of grass in the 2015 Women’s World Cup turned into action- or, more specifically, into legal action- when the issue erupted. Star female football players banded together in an attempt to remedy their situation, and prove their right to play on natural grass instead of the inferior turf.

But on the 21st of January, 2015, the players withdrew their case against the joint defendants, the Canadian Soccer Association(CSA) and FIFA.

The story of this case in entrenched in a myriad of legal issues, loopholes, and technicalities. What appeared to be a clear cut issue of grass vs. artificial turf may not have been all that clear at all.

The brief, filed under the Ontario Human Rights Tribunal, is fairly straightforward in its argument and structure. Dellinger and his team argue that the use of turf is gender discrimination, which is explicitly prohibited under Ontario’s Human Rights Code [5].  To prove that this is gender discrimination, there are a couple of facts that need to be established. First, it must be shown that the discrimination occurring is a real undue burden, which means that it is a serious obstacle and hardship in the way of these women. Second, it must be proven that discrimination was one of the factors in imposing such a burden. Then, once these baseline facts have been established, the respondents (CSA and FIFA) now have the burden to prove that the policy was not adopted with discriminatory intent, and that the burden is necessary to accomplish certain goals and cannot be done away with.

The players make 10 arguments as to why there is gender discrimination and an undue burden[6], which I will summarize here.

1. CSA and FIFA both prohibit gender discrimination in their own rules and by-laws. They are not following the guidelines they set for themselves.

2. Natural grass has always been used, in every prior women’s and men’s World Cups. It is also slated to be used for the upcoming men’s World Cups in 2018 and 2022. The treatment is clearly unequal.

3. Turf changes the way the game is played, it poses a unique risk for injuries, and it is a blow to the dignity and self-respect of these women to force them to play on this subpar surface on such an international stage.

4. The difference in treatment of men and women football players violates section 1 of the Ontario Human Rights Code.

5. FIFA organized a survey in 2013 to gather general opinions of the women about playing on turf, noting that their opinions would be taken into consideration. The survey showed that the women were overwhelmingly against the use of turf. The survey was subsequently disregarded.

6. Men do not even play qualifying matches for the World Cup on turf in Canada. The reason for this, given by the CSA, is that ‘men have a preference for natural grass.’

7. CSA and FIFA have a history of discriminatory treatment of women. They are jointly and individually responsible for this situation.

8. While the upcoming event is a once-in-a-lifetime, monumental event for these women, it is seen as a stepping stone for Canada to become more likely to get to host the 2026 men’s World Cup.

9. There are several feasible and easy ways to rectify the current situation. Moving the games to already existing grass fields within the host cities or installing temporary grass fields are both plausible.

10. The women’s World Cup is a largely watched and anticipated event, and both the CSA and FIFA have more than enough financial resources to make it a tournament of the caliber that these women deserve.

The Respondents

With the file submitted, the mess began. There were two initial responses- one from each organization.

1. The CSA denied that any discrimination was occurring.

…and 2. FIFA rejected to accept the filing.

Wait What?

No, unfortunately, I’m not joking. FIFA’s first argument against the brief was that they hadn’t “received effective legal notice”[7]. Essentially, they argued that the materials had not been mailed to them properly, or in the way that they would have preferred. Unsurprisingly, their complaint was denied and it was found that they had been effectively notified of the legal proceedings[8].

Main Interim Decisions

The players then filed a Request to Expedite Proceedings. The reason for this was that they were conscious of the time passing, and that in the interest of training on the correct field and having enough time to actually implement their requests, the players believed that the legal battle would need to speed up[9]. Yet, this request was denied. It was rejected for a few reasons. The ruling explained there were too many legal issues already brought up to deal with, and that they couldn’t be effectively addressed in expedited proceedings. Also, it was ruled that the players and their legal team had known about the use of turf far prior to attempting legal action, so they had filed the complaint too far after knowing about the issue to have a legitimate claim to expedite proceedings. Instead, early mediation was offered as an alternative [10].

The CSA denied to participate in early mediation [11].

Then, the players filed a Request to Reconsider the decision that denied expedition of legal proceedings. This request was also denied- the court responded that reconsideration is only available for final decisions, and a refusal to expedite proceedings is not a final decision. Also, it was noted that there wasn’t any new reason to reconsider the decision- the same analysis and reasoning applied[12].

The players then filed a Request to Amend the Application and Request for Interim Remedy. The amendment, which was granted, was to include instances of reprisal in the brief. It was alleged that threats and intimidation by the CSA and FIFA caused 3 players to withdraw from the lawsuit[13].

The CSA denied the allegations [14].

In regards to the Request for Interim Remedy, the players requested a cease and desist order against the CSA and FIFA in regards to the instances of reprisal. However, this request was denied, as there was not enough conclusive evidence that the reprisal had occurred and it wasn’t clear that a cease and desist order would be necessary to keep the case going forward. It would be necessary if there weren’t players that wanted to go forward with the lawsuit anymore, but this was not the case[15].

Jurisdictional Issues

FIFA also contested jurisdiction. This issue is a little harder to cover since FIFA did not publish their legal documents regarding this, and there was no conclusive decision made on it before the case was dropped.

Basically, FIFA responded by arguing that “the Canadian court does not have jurisdiction over the Switzerland-based organization or World Cup venues not located in Ontario” and “Ottawa is the lone host city in that province”[16].

The players’ position on this was fairly well-articulated in their brief. They emphasized that FIFA “played an instrumental role in the organizing of the 2015 World Cup” and “worked side-by-side with CSA” [17]. Furthermore, Sports Illustrated argued that, “FIFA has conducted significant business in Canada and thus should fall within the scope of Canadian laws” [18].

Final Thoughts

The players withdrew the lawsuit at the end of January. There is plenty of speculation as to why they chose to do so, but the answer is most likely one of pragmatism. The national team training camps were set to start, and the players and coaches needed to know what kind of field to train on. They were not granted expedition of the proceedings, nor did early mediation occur- so it was clear that continuing on would mean buckling down for a lengthy court battle.

Also, it’s important to note how difficult the respondents were to deal with. In particular, FIFA was essentially impossible. I can’t even pretend to be unbiased in my documentation of FIFA’s behavior throughout this lawsuit.  I considered making a separate sub-section describing why FIFA particularly made this lawsuit the mess that it was. It was clear from reading the legal files and any documentation on the issue that FIFA was, at best, disinterested, and, at worst, entrenched in the belief that they are above the law.

Whichever it is, FIFA is an organization that clearly does not care that much about their public perception in the handling of this issue. Not only did they absolutely refuse to engage in any of the meat of the case, but it’s fairly obvious that their strategy was to create a legal battle focused on tricks. They were certainly more concerned with defeating the lawsuit in any way possible instead of actually engaging with the issues or disproving the serious gender discrimination claim.

“[FIFA] raised a number of hyper-technical procedural arguments that had the effect of slowing down or delaying the decision on the merits of this case.”

-Hampton Dellinger [19]

Furthermore, as a last ditch effort, Dellinger’s legal team and the athletes proposed a compromise that would allow just the most important games- the semifinals, third place match, and the finals- to be played on grass, while the rest would still be played on turf.

FIFA rejected this offer as well.

“They just wouldn’t engage,” Dellinger recalled. FIFA representatives also made clear to Dellinger that, even if the court ruled against FIFA before the tournament, [they] had no intention of honoring that ruling. “They said repeatedly there is no Plan B, this World Cup won’t take place on grass.”

-Aaron Gordon for VICE Sports [20]

What Could They Have Done to Win the Lawsuit?

I’m not going to argue that the players or their legal team could have done something to make the CSA or FIFA cooperative. Nor am I going to argue necessarily that it was likely, or even possible for them to win the lawsuit. But there were a few weak links in their approach that, had they been exploited, could have lead to a different result.

The case may have been damned from the start when the women didn’t take an extreme stance. The women never refused to play on the turf, and never threatened to boycott games, which is a common tactic used by the male football players [21]. In fact, the first letter sent to the CSA and FIFA revealed the fact that the women would play no matter what.

This arguably took away a lot of incentive for the respondents to cooperate. If the tournament would go on regardless, there didn’t seem be much reason for them to make concessions. Had the women threatened boycotting, there probably would have been a few changes in the proceedings.

Firs of all, you could have expected a larger issue made out of reprisals. More women probably would have dropped from the lawsuit. Pressure likely would have come equally from the leadership of the national teams and the countries behind them as it would have come from FIFA themselves. It would have gotten ugly.

But also, it probably would have forced FIFA to engage in the meat of the issue. If the women were threatening to boycott the tournament, FIFA would have had a vested interest moving along the legal proceedings. On their side, a decisive courtroom defeat would have forced the women to drop the boycotting idea and participate in the World Cup on turf anyway. Stalling the lawsuit on minor issues is no longer an attractive strategy if star athletes are refusing to play unless there is a court resolution.

And forcing FIFA to engage in the gender discrimination claim fares better for the players. It is more likely that this issue would have fallen on their side instead of FIFA’s. FIFA avoided engaging in the real issues precisely for this reason. If they could reasonably believe that they could silence the gender discrimination claims, then they would have gone for that. Winning by beating back the gender discrimination allegation would have allowed FIFA to emerge from this mess on much more powerful footing. Yet, this wasn’t an easily feasible option for them. So they instead went for the technical issues.

Lastly, you could have expected a real compromise. FIFA likely would have realized their disadvantage in this scenario, and the immense difficulty they would have in defeating the real bulk of the lawsuit. They would have been more likely to accept the proposed compromise of at least using natural grass for the final few, most important matches.

However, it is important to note what the players would have had to give up to go through with this more extreme tactic and threatened to boycott. First of all, the pressure and repercussions would have been intense. They would have had to take financial and social hits because of it. Furthermore, if compromise wasn’t reached in a timely manner, it probably would have spilled into training time, which means that they would have had to train on both surfaces, muddling their training schedule.

Luckily, looking forward, future tournament hosts seem to be avoiding the issue entirely and putting natural grass as part of their bid [23]. Hopefully this issue doesn’t surface again, and if it does, all we can do is hope that it’s a little bit less of a headache.

Yet, regardless of whether this lawsuit won or lost, and regardless of the type of field the women will be playing on, their bravery and resilience in taking on such a monster of a cause against such unwilling organizations is admirable. Their boldness in the courtroom is mirrored on the field.

“Women would play on a field of glass and nails for the World Cup. They’re spirited and dedicated and mentally tough. And that’s the problem. Women will step up.”

-Carrie Serwetnyk, former Canadian national team player [24]

Works Cited

[1]“STATEMENT BY ABBY WAMBACH ON THE PLAYERS’ DECISION TO END THE LEGAL CHALLENGE TO THE USE OF ARTIFICAL TURF AT THE 2015 WOMEN’S WORLD CUP.” CHALLENGE TO THE USE OF ARTIFICIAL TURF AT THE 2015 WOMEN’S WORLD CUP (n.d.): n. pag. 21 Jan. 2015. Web.

[2] “STATEMENT BY PLAYERS’ ATTORNEY HAMPTON DELLINGER.” CHALLENGE TO THE USE OF ARTIFICIAL TURF AT THE 2015 WOMEN’S WORLD CUP (n.d.): n. pag. 21 Jan. 2015. Web.

[3]Dellinger, Hampton, Rocky Collis, Tristram Mallett, and Catherine Gleason-Mercier. “Equal Playing Fields at the 2015 World Cup.” Letter to Victor Montagliani, Peter Montopoli, Joseph S. Blatter, and Lydia Nsekera. 28 July 2014. MS. N.p.

[4] Dellinger, Hampton. “FINAL NOTICE BEFORE PLAYERS ARE FORCED TO INITIATE LEGAL ACTION.” Letter to Victor Montagliani, Peter Montopoli, and Joseph S. Blatter. 23 Sept. 2014. MS. N.p.

[5] ibid

[6] ibid

[7] Wambach v. Canadian Soccer Association, 2014 HRTO 1760 (CanLII), <http://canlii.ca/t/gflc9>

[8] ibid

[9] Wambach v. Canadian Soccer Association, 2014 HRTO 1635 (CanLII), <http://canlii.ca/t/gf8qt>

[10] ibid

[11] “Press Box.” Canada Soccer. N.p., 7 Nov. 2014. Web.

[12] Wambach v. Canadian Soccer Association, 2014 HRTO 1761 (CanLII), <http://canlii.ca/t/gflc0>

[13] Wambach v. Canadian Soccer Association, 2014 HRTO 1765 (CanLII), <http://canlii.ca/t/gfmpz>

[14] ibid

[15] ibid

[16] McIntyre, Doug. “WORLD CUP TURF WAR SUIT HEADS TO MEDIATION.” ESPN. ESPN Internet Ventures, 7 Nov. 2014. Web.

[17] Dellinger, Hampton. “FINAL NOTICE BEFORE PLAYERS ARE FORCED TO INITIATE LEGAL ACTION.” Letter to Victor Montagliani, Peter Montopoli, and Joseph S. Blatter. 23 Sept. 2014. MS. N.p.

[18] McCann, Michael. “Players’ Anti-turf Lawsuit for Women’s World Cup Not a Clear-cut Win.” SI.com. N.p., 31 Oct. 2014. Web.

[19] “How FIFA Killed the Women’s World Cup Lawsuit.” VICE Sports RSS. N.p., 3 Feb. 2015. Web.

[20] ibid

[21] ibid

[22] Dellinger, Hampton, Rocky Collis, Tristram Mallett, and Catherine Gleason-Mercier. “Equal Playing Fields at the 2015 World Cup.” Letter to Victor Montagliani, Peter Montopoli, Joseph S. Blatter, and Lydia Nsekera. 28 July 2014. MS. N.p.

[23] “How FIFA Killed the Women’s World Cup Lawsuit.” VICE Sports RSS. N.p., 3 Feb. 2015. Web.

[24] Litman, Laken. “Abby Wambach, Players Drop Turf Lawsuit against FIFA.” USA Today. N.p., 21 Jan. 2015. Web.