Csa Response to Women's World Cup soccer complaint

8/11/2019 Csa Response to Women's World Cup soccer complaint

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Ontario

Human Rights Tribunal of Ontario

Response to Request to Expedite Proceedings - Rule 21 (Form 15)

(Disponible en fran9ais)

www.hrto.ca

You may respond to a Request from a Party to Expedite a Proceeding by completing this Form 15.

Follow these steps to respond:

1. Fill out Form 15.

2. Deliver a copy of Form 15 to all parties and any affected persons identified in the Application.

3. Complete a Statement of Delivery (Form 23) ..

4. File Form 15 and Form 23 with the Tribunal.

Unless otherwise directed by the Tribunal, you must file your Response to a Request to Expedite a Proceeding seven(7) days after the Request to Expedite a Proceeding was delivered to you.

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Tribunal File Number:

Name of Applicant:

Name of each Respondent:

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01/07/2010 Form 15- Page 1 of 2
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~Ontario

Human Rights Tribunal of Ontario

Response to Request to Expedite Proceedings - Rule 21 (Form 15)

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2. Please ex

3. Mediation

edite a Proceedin

Mediation is one of the ways the Tribunal tries to resolve disputes. It is a less formal process than a hearing. Mediation

can only happen if both parties agree to it. A Tribunal Member will be assigned to mediate the issues raised in the

application and request to expedite the proceeding. The Member will meet with you to talk about your response. The

Member will also meet with the applicant and will try to work out a solution that both sides can accept. If mediation

does not settle all the issues, a hearing will still take place and a different Member will be assigned to decide theissues. Mediation is confidential.

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01/07/2010 Form 15- Page 2 of 2


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File 2014-18923

HUMAN RIGHTS TRIBUNAL OF ONTARIO

BETWEEN:

PLAYERS ON NATIONAL TEAMS PARTICIPATING

IN FIFA WOMEN'S WORLD CUP 2015

APPLICANTS

AND:

CANADIAN SOCCER ASSOCIATION and

FEDERATION INTERNATIONALE DE FOOTBALL ASSOCIATION

RESPONDENTS

SCHEDULE A - RESPONSE OF THE CANADIAN SOCCER ASSOCIATION

TO THE REQUEST FOR AN EXPEDITED HEARING

A. Introduction

The Respondent Canadian Soccer Association (the "CSA") opposes the application to expedite

the hearing in this matter. The underlying Application under s. 34 of the Human Rights Code

("the complaint") is made against the CSA and the Federation Internationale de FootballAssociation ("FIFA") and involves the FIFA Women's World Cup 2015 soccer competition (the

"Competition"), which is to be held in six Canadian cities in June and July of 2015. The

complaint alleges that because the Competition will be played on fields with artificial turf

("turf'), the CSA and FIF A have discriminated against the players who intend to be playing on

teams competing in the Competition.

The use of high quality turf is integral to soccer in Canada, and the CSA's bid on behalf of

Canada to host the Competition was always premised on the use of turf in accordance with the

rules relating to the Competition. The applicants have been aware of this for at least a year and

half, and probably for three years, since Canada was awarded the right to hold the Competition in

2011. Since that time, cities across Canada, and the respondents, have continued to prepare for

the Competition.

It is well understood that a complainant who fails to file an application promptly after identifying

the alleged human rights violation will not be provided with an expedited hearing. In this case,

the applicants failed to bring any complaint to FIFA's comprehensive dispute resolution

mechanisms and failed to bring forward any complaint to this Tribunal in a timely way. Instead,

they have waited until what is effectively the 11th hour to file a complaint. On this basis, not


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only should the demand for an expedited hearing be rejected, but the CSA will be applying to

dismiss the complaint in its entirety for being out of time.

Moreover, the applicants should not be permitted to demand an expedited hearing for such a

factually contentious and legally complex complaint. The assertion that turf fields are "second

class" is highly contentious and will be subject of extensive expert evidence. In addition, the

complaint involves an international body with its own governing statute and regulations, anational organization, six host cities in various provinces, and facilities with diverse ownershipand multiple users.

The applicants cannot seriously contend that the CSA's decision to bid on the Competition,proposing to use Canada's best available facilities, constitutes discrimination. The applicants'

real concern is not with any conduct by the CSA, but with the decision of FIFA to permit the

Competition to be held in a country where turf is a common playing surface in our premier

stadiums. That is a decision which is not subject to review by this Tribunal and one which the

applicants are out of time to challenge in any event. They appear to have brought the complaint

largely as means of publicizing their dissatisfaction with FIFA's decision made in Zurich in

2011, to allow the CSA to host the Competition.

The application for an expedited hearing should be dismissed.

B. Factual Background

1. The Parties

(a) FIFA

FIFA is a Zurich-based federation whose membership is comprised of 209 Member Associations

("Associations"), one of which is the CSA. Each Association has one vote within FIFA's

Congress. The Associations govern soccer in each of their respective countries and are admittedto FIFA by the FIFA Congress following a comprehensive application and screening process.Soccer leagues and national teams within each country are organized and governed by theirrespective Associations. The Associations must comply with FIFA's governance and its disputeresolution procedures for Associations, teams, clubs and players. The Associations must alsoensure that their own members comply with the statutes, regulations, directives and decisions ofFIFA bodies.

FIFA regulates Association soccer in and among the 209 jurisdictions, which covers most of theworld. FIFA enactments relevant to the issues in this case include, but are not limited to, the

following:

FIFA Statutes

Regulations Governing the Admission of Associations to FIFA

Code of Conduct


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Code of Ethics and Rules Governing the Players' Status Committee and the DisputeResolution Chamber

Regulations - FIFA Women's World Cup Canada 2015

Football Stadiums - Technical Recommendations and Requirements

Also relevant are the "Laws of the Game" which are issued. by the International Football

Association Board C'IFAB"). In February 2004, the Laws of the Game were amended to

approve the use of turf. This was in response to the growing demand for soccer to be played on

turf, especially in regions where the climate makes it difficult or impossible to play on natural

turf pitches all year round in good conditions. The Laws of the Game accordingly provide that

"matches may be played on natural or artificial surfaces, according to the rules of thecompetition".and that the quality of the artificial surfaces must meet FIFA's requirements.

One of FIFA's objectives is "to organize its own international competitions". The Competitionis one of these. In accordance with its statute (s. 80), in 2011 FIFA's Executive Committee

determined the venue for the Competition to be as set out in the CSA's bid to host theCompetition, which included turf playing fields. Following the acceptance of the bid by FIFA,

the preparation of the Competition has been proceeding in accordance with FIFA's regulations

and with the guidance of FIFA's Committee for Women's Football and the FIFA Women's

World Cup.

Article 3 of FIFA's Statutes prohibits discrimination against a country, private person or group

of people on account of, among other things, gender. FIFA's Statutes provide for a dispute

resolution process that is adjudicated by the Court of Arbitration for Sport, an independent,impartial and expert international tribunal based in Lausanne, Switzerland. FIFA's Associations

provide that international disputes are to be determined through FIFA and the Court ofArbitration for Sport. For example, the Bylaws of the United States Soccer Federation provideas follows:

Bylaw 708. JURISDICTION OF FIFA AND COURT OF ARBITRATION FOR SPORT

Section 1. FIFA shall have jurisdiction on all international disputes between any Organization

Member, official, league, team, player, coach, administrator, or referee and any party belonging to any

other FIFA national association or confederation.

Section 2. Any appeal against a final and binding FIFA decision shall be heard by the Court of

Arbitration for Sport ("CAS"), unless such decision relates to violations of the Laws of the Game or

suspensions of up to four matches or up to three months.

Section 3. The Federation and each of its Organization Members shall ensure that all officials,leagues, teams, players, coaches, administrators, and referees participating in their respective

programs comply with any final decision passed by FIFA or CAS.

(b) The CSA

The CSA is a federally registered non-profit organization. It is the official governing body for

soccer in Canada and one of FIFA's 209 Associations. The CSA's mission is to provide


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leadership in the pursuit of excellence in soccer, nationally and internationally, in cooperation

with its members and partners. In partnership with its members, CSA promotes the growth and

development of soccer in Canada, from grassroots to high performance, and on a national scale.

Soccer has more participants than any other sport in Canada and is considered the fastest

growing sport in the country. It is estimated that within the next two to three years, the number

of registered soccer players in Canada will reach over 1 million. There are nearly 850,000players registered with the CSA in Canada within 1,500 clubs across 144 districts that operate in

12 provincial/territorial member associations. These include Canada's national team which will

participate in the Competition.

With the support of the Government of Canada and in partnership with a number of Canadian

cities, the CSA developed a bid for submission to FIFA to be the host country for the

Competition. Since being awarded the Competition, the CSA has entered into multiple

agreements with host cities, provinces, and facilities owners to implement its plans to stage the

Competition and to accommodate the participating teams.

(c) The Applicants

At this time it is understood that contrary to the selected title of "Players on National Teams

Participating in the FIFA Women's World Cup Canada 2015" and contrary to the list of 18

names in paragraph 11 of the addendum to the complaint, the complaint is authorized to be

brought by only 7 players who have delivered consents to counsel advancing the case. None of the 7players (or even the 18) is resident in Ontario or plays on an Ontario or on a Canadianteam.They are not authorized to and do not speak on behalf of the teams which have qualified or

are attempting to qualify for the Competition.

It is expected that the total number of players competing m the Competition will be

approximately 550, consisting of24 teams.

As the CSA has submitted in prior correspondence with the Tribunal, the complaint should be

directed to be styled such that the 7 consenting players are listed as the applicants.

2. Canadian soccer and the use of turf

It has been clear since 2004 that World Cup competitions could be held on either natural or

artificial turf provided the turf met approved standards. With respect to the playing fields in the

Competition, since 2011, and certainly no later than March 2013, the applicants knew or should

have known that the Competition would be played, at least in part, on artificial turf.

As a result of its climate and culture, the use of high quality turf is an integral feature ofCanadian soccer. Advances in the quality of turf over the past decade have been very significant,

and Canada has expended significant resources to increase the number of its stadiums and

playing fields with high quality turf.

FIF A has developed an extensive program to ensure the quality of turf used in its competitions.

Only turf fields which have been tested in accordance with the FIF A Handbook of Requirements


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can be awarded the FIF A Recommended I-Star or 2-Star designations. The testing ensures that

the certified fields fulfil the very stringent quality criteria in terms of

Playing Performance (ball/surface interaction)

. Safety (player/surface interaction)

Durability

Quality Assurance

Pitches have to be rigorously tested both in the laboratory and on the field to ensure that the

surface reacts appropriately to the ball in terms of roll and bounce and, similarly, that players can

run and dribble and tackle and fall on it with confidence. FIF A does not distinguish between

male and female players in the application of those standards.

Canada now has 19 FIF A approved 2-Star turf fields and 67 FIFA approved I-Star turf fields. A

list of FIF A approved fields by location throughout the world is attached as Exhibit "L" to Victor

Montagliani's affidavit. A review of this list demonstrates that Canada is a leader in developing

high quality turf fields. For example, in contrast to Canada, the USA has only approximately 6

FIFA approved 2-Star and approximately 21 FIFA approved I-Star fields. National games may

still be played in the USA on turf fields which do not meet FIFA's quality standards. Thus,

games in a match organized by the US Association may be played on turf which is lower quality

than will be used in the Competition. All of the venues for the Competition, however, will have

FIF A approved 2-Star fields.

Since developing high quality turf stadiums, Canada has hosted several international

competitions using turf playing fields in whole or in part. In 2007, Canada hosted the FIFA U.

20 Men's World Cup. This took place in six venues, three of which had turf (Montreal, Ottawa

and Toronto) and three of which had grass (Victoria, Burnaby and Edmonton). In 2012, Canada

hosted the Confederation of North, Central American and Caribbean Association Football

("CONCACAF") Women's Olympic Qualifying Tournament in Vancouver, which was played

on a turf field. Of note is the fact that the US players mentioned in the application played at that

tournament without complaint.

In 2014, Canada hosted the FIFA U-20 Women's World Cup Canada 2014, which was held in

four venues, three of them with turf playing fields (Edmonton, Montreal, Moncton) and one with

grass (Toronto).

Most elite players spend a significant amount of their playing time on turf. This is particularly

the case in Canada. If the complaint proceeds, the CSA will demonstrate that there is noincreased risk to players from the use of turf rather than grass. This is supported by numerous

studies. The topic of playing patterns has also been extensively researched in order to ensure

that the game is not changed because of the surface. A string of studies has repeatedly confirmed

with scientific evidence that there is no difference between the way the game of soccer is played

on grass and turf.


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Canada has two teams in the North American Soccer League ("NASL"), and both of these teams

use turf for their home field. Canada also has three teams in the Major League Soccer league

("MLS") - one of these uses turf for its home field. The only grass fields used by professional

soccer players in these leagues in Canada are Saputo Stadium in Montreal and BMO field in

Toronto. The BMO grass field in Toronto has never been available for use in the Competition

because the City of Toronto has declined to participate. This is because Toronto is already

hosting the Pan American games in Toronto July 10-26,2015.

The use of high quality turf fields is not only a part of Canadian soccer, but Canadian gridiron

football as well. The Canadian Football League (the "CFL") has nine teams, and each of their

home stadiums utilize turf. The CFL pre-season games begin in June each year and the regular

season runs from July to November culminating in the Grey Cup, Canada's biggest annual

sporting event. Four of the six venues that will host the Competition are multi-purpose stadiums

with artificial turf, and are home to the CFL franchises.

Many of the stadiums to be used in the Competition were recently used for the U-20 Women's

World Cup.

3. The CSA's Bid for the Competition

The bidding requirements for the Competition were distributed in 2010, and the CSA's bid was

submitted to FIFA in 2011. It was premised on the Laws of the Game and FIFA's policies which

permit games to be played on either FIF A approved 2-Star turf or natural grass.

The CSA's bid to host the Competition was one of only two received by FIFA, the second being

from Zimbabwe. Bids were not received from the soccer associations to which any of the

players mentioned in the complaint belong. The CSA has never submitted a bid to host the

Men's World Cup.

FIFA accepted the CSA's bid for the Competition in March 2011. While no official host citieswere announced at that time, it would have been clear to anyone familiar with Canada's facilities

that turf would be used for some or all of the games.

The Official Host Cities for the Competition were announced in Ottawa in May 2012 as being

Edmonton, Alberta; Moncton, New Brunswick; Montreal, Quebec; Ottawa, Ontario; Vancouver,

British Columbia; and Winnipeg, Manitoba. Again, anyone familiar with Canada's facilities

would have known that the stadiums to be used had turf playing fields.

On March 21,2013, over 18 months prior to the complaint in this matter being filed, the match

schedule for the Competition was announced indicating the stadiums to be used. After this time,

there could have been no confusion that the Competition, including the final championshipgame, would be played on turf. Indeed, that very day, Abby Wambach, one of the players listed

in the complaint and a major international soccer star, began tweeting abouther opposition to the

matches being played on turf and media articles were published about Ms. Wambach's views.


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3. The Applicants' Dilatory Conduct

To the CSA's knowledge, no one filed any claim of discrimination in relation to the Competitionuntil this complaint was filed over a year and half after the Competition schedule wasannounced. Meanwhile, the CSA, FIFA and the host cities were diligently preparing for theCompetition, including by installing new turf in some venues and by arranging for turf training

fields in every host city. In preparation for the Competition, the field in Moncton Stadium hasbeen replaced with turf. As well, the turf in Montreal's Olympic Stadium was upgraded in 2014

to a FIFA approved 2-Star field.

As noted, FIFA's governing documents prohibit discrimination, but no complaint has been filed

with FIFA's judicial bodies or the Court of Arbitration for Sport regarding the Competition.

Instead, the players who objected to the use of turf focused on publicizing their complaints in the

media, evidently trying to pressure FIFA into mandating a change in the playing fields.

Despite likely being aware for three years, but in any event at least eighteen months, of thecircumstances which they say give rise to discrimination, the applicants have now filed a

complaint which is incomplete in various ways. In addition to failing to properly identify theapplicants, the complaint also lists no documents supporting the complaint other than amemorandum of fact and law drafted by lawyers. Despite the length of time the applicants havebeen aware of the salient acts, and their assertion that the matter is urgent, no expert reports have

been delivered supporting the bald assertions about the dangers of using turf or the purported

feasibility of installing grass fields at this late date in the locations at which the Competition is to

be held.

Indeed, the applicants have provided no evidence to support their assertion that there is a

practical remedy available to them now that will not be available if the hearing is not expedited.

There are not enough grass fields in existence in suitable Canadian stadiums to host theCompetition. It is clearly impractical to reconstruct the various venues, including three CFLstadiums, to include grass playing fields of sufficient quality. While the applicants suggest thatgrass fields could be temporarily laid over the turf fields, the results of using temporary grassfields have been very mixed. The applicants have not provided any evidence that a temporarygrass surface would be a superior playing surface to the existing turf fields, or that this is a

practical solution that can be adopted in all six host cities for all the needed fields.

C. The Law

An expedited hearing will not be granted unless the circumstances are truly urgent, or in

circumstances where the refusal to expedite will render the remedy for the alleged human rights

violation moot or unavailable. This is a high threshold (LaBelle v. Rich Products of Canada

2010 HRTO 755). The applicants have not provided any evidence to demonstrate true urgencyor that there is a meaningful remedy available to them now that will not be available if thehearing process can run its course. Finally, where a remedy is unavailable in any event, anexpedited hearing is not appropriate (Spooner v.Northumberland County Community and SocialService 2010 HRTO 928.


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Even where the test for an expedited hearing could be met, except in the rarest of cases, such anorder should not be granted where an applicant has not filed their application promptly afteridentifying the alleged human rights violation. As was the case in Kwan v. Hospital for SickChildren 2009 HRTO 621,Kearney v.Ontario Hockey Federation 2010 HRTO 522, andRapp v.Ontario Hockey Federation 2010 HRTO 526), this is not a circumstance that warrants theexceptional measure of an expedited hearing.

D. Application of the Law to thisCase

The applicants have provided no compelling explanation for why they failed to challenge the

decision to award the Competition using the agreed upon internal procedures or to file their

application in a timely way such that the Tribunal could proceed according to its usual timelines

and process. As the Tribunal has often recognized, expedited timelines and rapid hearing dates

may have a variety of impacts on the other parties, their counsel, and on Tribunal resources. Theapplicants should not be permitted to sit by for a period eighteen months to three years and thendemand that the Tribunal modify its procedures and impose onerous scheduling and evidencegathering burdens on the respondents. Indeed this could have the effect of denying other

affected parties, including players, teams, cities and stadium owners adequate notice of theproceedings and an opportunity to participate. Natural justice requires no less.

This is especially so when the case is as legally complex and factually contentious as this one.

While an expedited hearing always imposes inconvenience to the responding parties, in this case,

an order to expedite the proceedings will deprive the respondents of the ability to have the

matters raised and adjudicated in an orderly and comprehensive manner. It will not just result in

inconvenience, but will give rise to a real potential for prejudice. There are significant

preliminary legal issues which must be adjudicated before the complaint can continue on the

merits. These are anticipated to include:

(a) whether the complainants are properly identified and represented;

(b) whether it is appropriate to defer to the arbitration processes provided for under FIFA'sStatutes and accepted by Associations, teams and players;

(c) whether the complaint is out of time and should be dismissed;

(d) whether the complainants have standing to bring the complaint when they are notpresently in Ontario and it is not clear that they will play in Ontario and, further, that the

facilities are not made available to individual players but, rather, to the teams of the

visiting associations;

(e) whether this Tribunal has jurisdiction over FIFA;

(f) whether this Tribunal has jurisdiction over FIFA's decision to accept the CSA's bid to .hold the Competition on turf; and

(g) whether this Tribunal has jurisdiction to order the extra-provincial aspects of the remedy

that is sought.


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Should the complaint proceed to be heard on its merits, the complaint is factually contentious.

Turf is not a "second class" playing surface. The CSA will prove this by obtaining and filing

qualitative and statistical expert evidence about player health and safety on turf, the quality and

style of play on turf, the extent of the use of turf fields around the world, the lack of feasibility of

the remedies proposed by the applicants and historical evidence about the 2004 decision to allow

play on turf in support of the international expansion of the game. This evidence takes time to

gather and present in an orderly and comprehensive manner.

The complainants have narrowly framed their remedy to target the Competition and thereby

create the urgency from their own lack of timeliness. If the complainants believe there is a larger

principle at stake that is appropriate for this Tribunal to address, then they should seek some

other appropriate remedy through the ordinary process. They should not be permitted to file this

complaint late in the day, narrowly framed to impact the Competition, and seek to race the

parties and the Tribunal into an expedited hearing, decision and execution of remedy before the

Competition begins.

If the application is, as it appears, primarily an effort by certain players to highlight a

disagreement they have with FIFA, the governing body of the soccer Associations to which eachplayer belongs, that is not an appropriate basis on which to demand that this Tribunal modify its

procedures and deprive the Respondents of a full and timely opportunity to respond to the legal

and factual issues raised by the complaint. The way in which the complaint has been assembled,

including the imprecision with respect to the identity of the parties, the lack of evidentiary or

documentary support and the lack of clarity with respect to the remedies sought, suggests that the

applicants are seeking a symbolic victory, not a practical outcome. The complaint process

should not be expedited, but should proceed in an orderly manner that preserves this Tribunal's

role as an arbiter of specific and identifiable rights, rather than as a platform for the applicants to

publicly air concerns for which Ontario law can provide no remedy.

E. Conclusion

The onus is on the applicants to show that they meet the test for an expedited hearing. They have

provided no evidence to demonstrate that there is any reasonable explanation for their failure to

file a complaint earlier. The application to expedite the hearing should be dismissed. After

substantive Responses have been filed and a Case Conference has been convened, a schedule for

the hearing of the CSA's preliminary applications can be established along with any applications

advanced by FIF A. Once those are heard and determined, appropriate timelines for the exchange

of documents, expert opinions and witness lists can be ordered by the Tribunal, if they cannot be

agreed to by the parties.

If, despite the above submissions, the Tribunal decides that the matter should be expedited in any

respect, the dates provided by the applicants do not provide anywhere near sufficient time toprepare for a hearing of the issues raised and are unworkable. Any proposed schedule should be

set in accordance with the available dates of all counsel, clients, and the expert and lay witnesses

to be called.


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Csa Response to Women's World Cup soccer complaint

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