I remember watching the championship game of the 1999 Women’s World Cup (WWC) with my parents, sitting in awe and feeling inspired. For non-soccer fans, it was the game in which United States’ defender Brandi Chastain scored the fifth penalty kick in a shootout to lead the U.S. to victory over China. Perhaps what people remember most, however, is how Chastain celebrated: she ripped off her jersey, fell to her knees in her sports bra, and flexed her arms. Critics labeled her celebration as somewhat controversial and inappropriate, notwithstanding the fact that removing a jersey was (and continues to be) a common goal scoring celebration among men. Ten-year-old me – and probably thousands of other aspiring soccer players – did not care; we saw our hero lift our team on the grandest stage. Fifteen years later, as a soccer player turned aspiring lawyer, I can’t help but continue to be inspired by the women in the 2015 World Cup. And not because of their in-game heroics – rather, because they have launched an uphill legal battle against FIFA, the international governing body of soccer.
In October 2014, a group of about sixty women soccer players filed a complaint against the Canadian Soccer Association (CSA) and FIFA, alleging that FIFA’s decision to host the 2015 Women’s World Cup on turf fields violates the Ontario Human Rights Code (the “Code”). In their claim, the players state that playing on turf rather than grass attacks their dignity, as men have never played a World Cup game on turf. Additionally, they claimed, playing on turf fundamentally alters the way that soccer is played, and increases the risk of player injury. The players have asked the CSA and FIFA to replace the artificial turf with real grass, but both parties have declined to act.
To make matters worse, some players have dropped out of the lawsuit due to fear of reprisal, such as being cut from their teams or compromising a national bid to host future World Cups. U.S. Soccer President Sunil Gulati, also a member of the FIFA Executive Committee, allegedly warned that he believed players risked suspension for taking legal action. However, the contingent supporting the soccer players is strong – with thirteen U.S. Senators, Tim Howard, Kevin Durant, Kobe Bryant, and Mia Hamm Garciaparra in support of the mission to “protect our athletes.”
Canadian laws seem to be more progressive than American laws on gender discrimination in sport. The Code, which broadly states that all people have the right to be free of discrimination when “receiving services” or “using facilities,” bars discrimination on the basis of gender (among other classifications) and has been applied to professional sports in the past.. (To put it into perspective, Title IX, which is probably the closest corollary under U.S. law and commands gender equality in college sports, does not apply to professional sports and Title VII of the Civil Rights Act has not been applied in this context before.)
After filing the claim under the Code, players must await a decision from the Human Rights Tribunal of Ontario, an administrative court, which determines whether the players established a prima facie case for discrimination. If so, the CSA and FIFA are given the chance to respond to allegations in writing. If unsettled, the matter will be sent to mediation. If mediation is unsuccessful, the matter is sent to the Tribunal for an administrative hearing, where the Tribunal will offer a remedy. As of November 7, 2014, the Tribunal sent the matter to mediation. With the WWC eight months away, the players have asked the Tribunal to accelerate the process.
The women want to play the WWC on grass fields, and FIFA won’t budge. FIFA Secretary General Jerome Valcke maintains that the decision to host the tournament on turf was not motivated by gender: “It would be very difficult to ensure natural grass pitches at all venues,” he stated, adding that “this is not a question of money, or differences between men’s and women’s events, but it is a matter of the natural conditions in Canada.” Even so, natural conditions have been overcome before in the interest of sport. In the 2013 UEFA European Women’s Championship, a turf field was converted to grass in just two weeks to comply with UEFA’s requirement that the final game be played on grass. Considering the timing and that the conversion costs about $300,000 USD per field, FIFA could easily convert these fields for $3 – $4 million USD a month before the event.
FIFA’s decision to use turf is not without merit, however. Four Major League Soccer stadiums and more than twenty European soccer clubs play on turf. The U.S. Women’s National Team Players Association also approves of the use of turf for regular season games, provided that it is of a certain quality. Turf is more cost efficient and easier to maintain than grass. However, the surface has been linked to increased injuries and overheating while playing. A recent study showed that players who played on turf were seven times more likely to get “turf burns” in a game than players who played on natural grass. It is not unreasonable to think that players might alter their style of play to avoid injury, which detracts from the integrity of the game.
With just eight months left before the WWC, action is needed. Canadian legal experts have opined that the players are fighting an uphill battle. While the players have valid safety concerns, they have not alleged an overwhelmingly strong case for gender discrimination, primarily because they have not alleged a discriminatory animus. Moreover, the Tribunal cannot offer injunctive relief over the parties involved, but only damages. Timing is also an issue, as the players waited until nine months before the tournament to file with the Tribunal, who normally takes over a year to offer a remedy. Alternatively, FIFA’s governing statutes provide for a dispute resolution process adjudicated by the Court of Arbitration for Sport – an impartial tribunal in Switzerland – which the players bypassed.
Despite these strong points in their favor, FIFA and CSA should do the right thing. They should protect our players. They should not force the players to boycott the WWC if they are forced to play on turf. If not for the players, FIFA should act to protect its public image: if the public believes that women players are being treated differently than their male counterparts, FIFA’s business and reputation could take (more of) a hit. Put simply, it should not allow the beautiful game to turn ugly.