American-led group of top women's soccer players files suit against Canada's plan to hold 2015 Women's World Cup on turf, but will it amount to anything more than the ski jumping lawsuit?
The August threats of a lawsuit against the Canadian Soccer Association and FIFA over the plans to use artificial turf at the 2015 Women's World Cup in Canada next summer have come to pass, with a group of prominent female players led by Americans Abby Wambach and Alex Morganofficially filing a suit at the Ontario Human Rights Tribunal in Toronto Wednesday. The suit (a copy can be found here, via NBC's Jeff Kassouf) involves a group of over 40 players from around the world (but no Canadians), and it's based on their previous claims that having women play on turf when the men's World Cup has always been held on grass is inequitable and illegal under Canadian law. It's going to be a very interesting case to follow over the next weeks and months. However, past precedent on gender equity lawsuits against international sports organizations in Canada, plus the difficulties of changing the surfaces for this Women's World Cup and FIFA's endorsement of the turf, suggest this lawsuit may not get the result the protesters want—at least not initially.
From the outside, this case appears to bear many similarities to the women's ski jumping lawsuit filed against the Vancouver organizing committee (VANOC) and the International Olympic Committee (IOC) ahead of the 2010 Winter Olympics. That was also an argument about gender equity, and it was an attempt to try and apply Canadian law to an international sporting body and its local affiliate. However, the ski jumping lawsuit seems to have had a much stronger case in many aspects.
The ski jumping lawsuit was about if women could compete at all in an event, not about the conditions under which they could compete. It also had a directly comparable local condition, as men were going to compete in ski jumping in Vancouver. By contrast, no one is trying to stop the women from playing, and the men's World Cup has never been held in Canada; it's also a much more expensive and much more popular event. Moreover, it's highly unlikely the men's tournament will ever come to Canada, regardless of the CSA's plans to bid for the 2026 tournament. The Olympics were a singular event in one province, so there were no jurisdictional issues; the Women's World Cup will be played in six cities in six different provinces, so even if the women do somehow get a ruling in their favour from the Ontario Human Rights Tribunal, that may not extend across the country. (And FIFA's made it clear that all venues for this event will need to have the same surface; in fact, Moncton's stadium is normally grass, but turf is being installed to make it fit with the rest of the venues.) Beyond that, too, the ski jumping lawsuit involved both Canadians and foreign nationals; there are no Canadians involved in this soccer lawsuit.
Despite the strong ski jumping case, which convinced B.C. Supreme Court judge Lauri Ann Fenlon to rule that the women had actually been discriminated against by the IOC, the lawsuit didn't result in women getting to compete in that event in Vancouver. In fact, it ended with Fenlon ruling that the Switzerland-based IOC was not subject to Canadian law, specifically the Charter of Rights and Freedoms. There's an excellent dissection of Fenlon's ruling here from sportlaw.ca's Hillary Findlay, and many of the issues raised there may well come up in the turf case:
Madame Justice Fenlon identified three problems with forcing VANOC to disregard the IOC’s decision to omit Women’s Ski Jumping from the Games and stage such events any different way.
Firstly, she noted that the IOC owns the Olympics. At page 38 of her decision she wrote: If an entity, including a government, tried to stage the “Olympic Games” without the IOC’s permission, no one would actually consider the event to be the Olympics. Similarly, if VANOC attempted to hold additional events during the 2010 Games, contrary to the decision of the IOC, no one would actually consider those events to be Olympic. Those events would be considered to be something else. The simple fact is that only the IOC may grant the imprimatur of “Olympic” [emphasis added]. ...
Secondly, Madame Justice Fenlon noted that the staging of the Olympic Games requires the participation of international sport federations (ISFs) and national Olympic committees (NOCs). Clearly NOCs are under the authority of the IOC. ISFs are not except as they choose to engage in Olympic Games. FIS (Fédération Internationale de Ski) – the ISF responsible for ski jumping, specifically accepted the IOC’s decision with respect to the non-inclusion of Women’s Ski Jumping in the 2010 Olympic Games.
...Thirdly, as bluntly put by Madame Justice Fenlon, “it is most unlikely that the national Olympic committees would act contrary to the direction of the IOC” (p.39). In other words, they simply would not sanction the involvement of any competitors, should a women’s ski jumping event have been staged by VANOC.
There's some solid logic there (it's notable that both the B.C. Court of Appeal and the Supreme Court of Canada dismissed the ski jumpers' appeals of Fenlon's decision), and a lot of those issues could come up in this case. If the IOC owns the Olympics, isn't it likely that FIFA owns the Women's World Cup, and that its national committees (such as the CSA) are under its authority? FIFA's also based in Switzerland, so if the Canadian Charter of Rights and Freedoms doesn't apply to the IOC, why would it apply to FIFA? Of course, it could be that there are some significant distinctions in this case that could persuade a court to rule differently here, but from the outside, the result of the ski jumping case certainly wouldn't seem to bode well for the soccer players' suit.
Moreover, even if the history of the ski jumping lawsuit is set aside, there are still real issues for the soccer players' attempt here. They cite extra injuries on turf versus grass, but the research on that is far from conclusive, and their argument that the men's event would never be played on turf isn't necessarily accurate either. FIFA's strongly endorsed turf recently, with president Sepp Blatter calling it "the future of modern football," so a men's World Cup on artificial surfaces in the near future isn't out of the question. Turf's utter inequality is up for debate, too; consider that the men's U-20 World Cup has been held on artificial turf before, including some of the stadiums in Canada in 2007, and that many of the women protesting turf, including Wambach and Morgan, play their club matches on turf. Even if there's a favourable ruling towards grass in court, implementing that in less than a year may be difficult given the different provinces and jurisdictions involved and the issues with trying to bring grass into some of these stadiums (which are mostly used for the CFL as well, which poses a big problem). This lawsuit will be well worth following, but the odds appear to be stacked against it.
It's possible that this lawsuit could play out like the ski jumping one in yet another way, though, with initial legal failure leading to eventual organizational change. The ski jumping lawsuit didn't wind up in the event being included in the 2010 Games, but it (and the public pressure that arose around it) was a major reason why women's ski jumping was an event in Sochi. Similarly, the furor that's arisen around this supposed discrimination could mean that the 2019 Women's World Cup (venue to be determined still) may well be played on the same surface as the men's event. Whether that's grass or turf may still be determined.
