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Players' anti-turf lawsuit for Women's World Cup not a clear-cut win

Do professional soccer players have a legal right to play on natural grass instead of artificial turf? Should the law care about the difference between grass and turf when it is linked to the gender of the player?

These questions lie at the heart of a new lawsuit brought by more than 60 women soccer players against the Canadian Soccer Association (“CSA”) and FIFA. U.S. stars Abby Wambach and Megan Rapinoe have joined players from Germany, Australia, Brazil, Mexico, Japan and other countries in asserting that FIFA’s decision to play the 2015 Women’s World Cup on artificial turf in Canada violates Ontario’s Human Rights Code (“Code”). The Code is a wide-ranging civil rights law that bars discrimination on the basis of gender.

The legal case against turf

Players bringing this case highlight that all six prior Women’s World Cups and all 20 men’s World Cups have been played on grass and that the next men’s World Cup, Russia 2018, will also be played on grass, as will the 2022 World Cup in Qatar. They also insist that playing on turf in the 2015 World Cup would them cause at least three harms:

  1. They would be forced to compete on a surface that “fundamentally alters” the way soccer is played.
  2. They would be exposed to a heightened risk of serious injury
  3. Their “dignity, state of mind and self-respect” would be devalued by having to play on a “second-class surface” before a global audience.

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Section 1 of the Code is the key source of law for the players. It broadly dictates all people have a right to be free of discrimination when they receive services, seek goods or use facilities. There are 15 demographic characteristics listed in Section 1 as warranting protection from discrimination and they include sex, gender identification and gender expression.

Section 1 has been interpreted by the Canadian legal system to protect those participating in athletics from discrimination. Attorneys for the players also cite case precedent where soccer competitions count as “services” within the meaning of Section 1.

To assess if the players’ claim warrants further review, the Human Rights Tribunal of Ontario—an administrative court consisting of 53 members—must determine if the players established a “prima facie case” that CSA and FIFA violated Section 1. A finding of a prima facie case is a relatively low bar. It means the Tribunal sees sufficient evidence that discrimination of a protected demographic characteristic occurred and that it caused the players’ adverse impact. A finding of a prima facie case does not establish that CSA and FIFA broke the law, only that the case is sufficiently plausible.

Assuming a prima facie case is found, CSA and FIFA would have an opportunity to respond to the allegations in writing, and the players would then have an opportunity to reply to CSA and FIFA’s response, also in writing. The Tribunal would then encourage the players, CSA and FIFA to participate in a mediation session where they would present their competing arguments to one Tribunal member, who would act as a mediator.

This Tribunal member would urge the parties to resolve their differences and he or she would likely propose a solution. If the parties reach a settlement in mediation, the matter would be resolved. But if disagreement persists, the Tribunal would then hold a hearing that resembles a trial. Each side would make their best case, introduce persuasive evidence and offer expert witnesses and testimonials to support their views. The Tribunal would then make a decision and, if appropriate, order a remedy.

The players’ desired remedy is simple but costly: CSA and FIFA should replace the artificial turf in the six stadiums that will be used with temporary real grass. Thus far, CSA and FIFA have steadfastly refused the demand.

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The players have also petitioned the Tribunal to expedite its review process, which normally takes at least one year. They have made this request since the World Cup will start on June 5. Obviously, a remedy of grass fields would only be effective if the Tribunal orders it prior to the games starting. With just eight months until the start of the World Cup, the Tribunal will have to accelerate this case or it could be rendered moot.

This type of lawsuit would probably fail in the United States

In the United States, a claim of this nature would face very long odds. Female college soccer players would probably have the strongest case in a U.S. court. They would contend that playing on artificial turf violates Title IX, a federal law that commands gender equity in college sports. Title IX requires equal treatment for men and women’s college sports in numerous program areas, including equipment, locker facilities and playing surfaces. While it may be difficult for soccer players to establish that playing on turf is “worse” than grass in a way that the law should care about, there would at least be a law that addresses the issue.

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But female professional soccer players—such as those who compete in a FIFA World Cup—would struggle to identify a U.S. law to support such a claim. Title IX does not extend to professional sports, and thus would be unavailable. Other potentially relevant laws, such as Title VII of the Civil Rights Act or Chapter 21 of U.S. Code Title 42, are unlikely to empower a successful case.

These laws may not govern a professional sports tournament like the World Cup and lack the necessary precedent to apply to a “turf versus grass” debate. Decades ago, a proposed Equal Rights Amendment to the U.S. Constitution—which would have guaranteed equal rights for women—also failed to receive approval from the necessary three-fourths of U.S. states.

Canadian laws, however, are generally more progressive on the issue of gender discrimination, and Section 1 of the Code is evidence of that ideology.

Defenses for CSA and FIFA

CSA and FIFA have not yet indicated their defense arguments but there are several likely defenses. Collectively, these defenses contend that playing on turf neither constitutes a disadvantage relevant to the law nor perpetuates prejudice, that the decision to use turf was made in good faith, and that any remedy requiring that surfaces be changed would impose undue hardship.

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1. Grass and turf are equivalent surfaces for soccer

Watch for CSA and FIFA to portray the kind of artificial turf to be used in the World Cup as equally safe and as functional as grass. For instance, they could cite the use of artificial turf by the National Women's Soccer League to show that turf is neither dangerous to players’ health nor restricting in style of play. After all, if the top North American women's soccer league uses artificial turf, then it would signal that turf is an adequate substitute for grass.

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Not only that, but the NWSL negotiates a collective bargaining agreement with the Women’s National Team Players’ Association, so even the players' union—which is legally entrusted with safeguarding players—is on board with artificial turf. FIFA would also hire expert witnesses from the soccer, turfgrass and health care industries to opine that the kind of turf used in Canada is safe and reasonable. 

If FIFA can establish that its use of artificial turf isn't dangerous or game altering, it would greatly undermine the players' claim. To be sure, the players would employ their own experts, and the players’ legal brief cites several studies indicating the playing sports on turf is more dangerous than playing on grass.

2. Male professional soccer players, including those in Canada, play on turf

CSA and FIFA can also stress that many of the world’s best male soccer players play on artificial turf. Four Major League Soccer stadiums—including Canada’s BC Place, which is used by the Vancouver Whitecaps and will be used in the 2015 World Cup—feature artificial turf. More than 20 European soccer clubs, such as A.C. Cesena and Boavista Futebol Clube, also play on turf.

The fact some male professional soccer players play on turf does not, by itself, disprove gender discrimination in a World Cup. But it helps CSA and FIFA demonstrate that there is nothing especially troubling about using turf in a World Cup, and that their decision to use turf was understandable and not made with prejudice.

3. Comparisons to World Cups hosted by other countries are irrelevant for legal analysis

The players have stressed to the Tribunal that no other World Cup has used or plans to use artificial turf. Expect CSA and FIFA to dismiss this point as a red herring. They will argue that the appropriate comparison for application of a Canadian law is soccer played in Canada, not in China, Mexico, Sweden or other countries that have hosted the men’s or women’s World Cup. Canada has never before hosted a World Cup, meaning it is unclear whether male soccer players would also play on grass or turf.

For their part, players would likely respond that FIFA would never award a men’s World Cup if the men had to play on turf. Perhaps anticipating such a critique, FIFA secretary general Jérôme Valcke this week said he envisions a men’s World Cup being played on turf in the foreseeable future.  

4. There is no reasonable alternative to using turf in the 2015 World Cup

Even if women playing the World Cup on turf is ruled a discriminatory practice under the Code, CSA and FIFA may not be obligated to fix the problem. In certain contexts, discrimination in facilities is acceptable so long as there are no practical alternatives.

Here, CSA and FIFA would contend that replacing stadium surfaces, especially at this late date, would constitute undue hardship. Any replacement would require extensive negotiations with the six stadiums contracted to host the 2015 World Cup and would surely increase operating costs. In other words, replacing surfaces is not a “quick fix” and it would command negotiation with multiple parties and the incurrence of new expenses.

5. FIFA might argue the Tribunal has no jurisdiction over it

While CSA falls squarely within the jurisdictional reach of the Tribunal, FIFA could contend that it lacks a sufficient nexus to Ontario. FIFA is headquartered in Zurich, and while it has regional offices in other countries, it does not appear to have one in Canada.

A jurisdictional argument by FIFA would probably fail. As the players’ legal brief emphasizes, FIFA has played an instrumental role in the organizing of the 2015 World Cup and has worked side-by-side with CSA. FIFA officials have also traveled to Canada to do business, including for purposes of the Cup. It seems clear that FIFA has conducted significant business in Canada and thus should fall within the scope of Canadian laws.

Possibility of settlement

CSA and FIFA have potentially persuasive defenses under the law. But fans, sponsors, broadcasting companies, politicians and other important constituencies may not care about technical legal distinctions. Simply put, if the public believes that women soccer players are being treated worse than their male counterparts, CSA and FIFA’s business could take a hit. This creates an incentive for CSA and FIFA to try to settle with the players.

What kind of settlement might be reached? Here’s one: CSA and FIFA agree to replace the surfaces of the stadiums where it would be practical to do so. Whether that is two or three or some other number of the six stadiums is unclear. But it would serve as a comprised resolution that advances the interests the players while being feasible for CSA and FIFA.

Important legal lesson for FIFA

In determining locations of World Cups, FIFA has many considerations. They include quality of facilities, local interest in soccer, player and fan safety, available housing and certainty that the host country’s legal system will guarantee that FIFA’s contracts are enforceable. FIFA should also consider whether human rights violations, such as those reported in Qatar, should play a more influential role in which countries are awarded a World Cup and whether it should be taken away.

Sports Illustrated legal analyst Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.