Of privilege and preference: Why the 2015 World Cup is still destined to be played on artificial turf

If somebody used the American media as their sole source of information, it would be easy to believe that Turfgate, as it has been affectionately dubbed by the Internet, has been a series of victories for the U.S. women’s national team and its coalition of the willing. This, however, could not be further from the truth. Apparently, those journalists who ply their trade south of the 49th parallel have not read any of the relevant legal documents. Those, of course, tell a much different story.

Last week, the Human Rights Tribunal of Ontario issued an interim decision in Wambach et. al. v. Canadian Soccer Association (CSA) – women’s players attempt to persuade a Canadian tribunal to compel FIFA and the CSA to stage next summer’s World Cup on grass instead of the planned artificial turf. More specifically, it responded to the players’ request to expedite proceedings with a “benchslap” (as such devastating legal blows are known amongst those of the profession) that all but leaves Turfgate dead in the water.

A lawsuit, much like a soccer game, may be won or lost in many ways. In the courtroom, as in sport, victory often comes down to strategy and tactics, much like the semifinal at the 2012 Olympic Games. That was the game were one Abby Wambach counted out the seconds Canada’s goalkeeper Erin McLeod held possession of the ball before putting it back into play, goading the referee to award a free kick that altered the course of the game. The United States went on to win the game and, ultimately, Olympic gold.

The CSA, in an ironic turn, has returned the favor by, in its response, counting out exactly how much time Wambach and co. dawdled before initiating legal proceedings. And much like referee Christina Pedersen, the tribunal had no choice but to enforce the rules.

United States v Trinidad & Tobago: Group A - 2014 CONCACAF Women's Championship

Photo by Kyle Rivas/Getty Images

Wambach and Co.’s legal minefield

Most rights are subject to a statute of limitations – a period of time where affected parties must act to enforce their rights or seek redress. Once that time is up, legal proceedings cannot properly be initiated. The CSA points out in its response that, despite the fact that the players have likely been aware for 18 to 36 months of its plans to use turf, no discrimination claim was made until the present complaint, filed over a year and a half after the schedule for the World Cup was announced. Instead, the CSA says, “the players who objected to the use of turf focused on publicizing their complaints in the media.” The players, as the CSA noted, have provided no compelling explanation for why they failed to act sooner, either.

Forcing the referee to apply the rules worked for Abby Wambach (above) in 2012, but this time, her own strategy has been used against her. According to the tribunal,“a key factor weighing against the applicants’ request is their failure to proceed expeditiously,” and that it did not “find it appropriate to expedite an application where the applicants did not file their Application until 18 months or more after they reasonably would have been aware of the facts …” The players, the tribunal sniffed, had some kind of nerve requesting that their application receive “priority over all the many other applications that have been filed with the Tribunal alleging violations of the Code.” Ouch. The tribunal, it seems, did not take kindly to what the CSA characterized as the players’ ‘dilatory conduct’ in initiating legal proceedings at the 11th hour.

As of now, it appears all the tribunal is willing to offer is early mediation. In the legal sense, mediation is a form of dispute resolution where a mediator assists in the negotiation of a settlement. It comes with one particular caveat, however. As an inherently collaborative venture, mediation requires the consent and cooperation of all parties – and it would appear that the only parties willing to attempt mediation in this instance are the players.

Mediation before the tribunal is voluntary, and in order for it to take place, all parties must agree to participate. The tribunal cannot compel it. In the last week’s decision, the parties were directed to advise the tribunal whether they were inclined to participate, and in a brief statement on its website, the CSA unequivocally stated that “it is not willing to participate in an early mediation in this matter.” There was no room for ambiguity.

Nor is FIFA expected to take a seat at the table. FIFA, it turns out, refuses to acknowledge the instant proceedings on the basis that it has yet to be properly served with legal process provided by relevant international treaties (namely, the Hague Service Convention, or as it is more properly known, the Convention on the Service Abroad of Judicial and Extrajudicial Documents In Civil Or Commercial Matters). A party cannot properly be joined in legal proceedings unless and until it has been served with effective legal process. The tribunal did not refute this argument, noting toward the end of its decision that a key issue to be determined was whether FIFA had indeed received effective legal notice. The tribunal is expected to issue an interim decision on that in the coming weeks, but few would bet on a change of heart.

Ultimately, there is nothing left for the players to do but wait and hope that the tribunal does not decline to adjudicate their case. Yet the chill of winter is already in the air in many of the competition’s host cities; a few short weeks and the very battlefields of this war will be frozen solid.



The curious path, the cusp of defeat

The players’ legal strategy is perplexing, given there was already an appropriate forum available to them from the outset. As the CSA pointed out in its response, FIFA’s statutes provide for a dispute resolution process through the Court of Arbitration for Sport – an independent, impartial tribunal with specialized expertise located in Lausanne, Switzerland. That court has jurisdiction over all parties involved and would thus have been the proper authority to adjudicate this dispute. Yet no dispute was brought before either FIFA’s judicial bodies or the Court of Arbitration for Sport.

In any event, it is unlikely they would have met with success. The players allege that the decision to hold the tournament on artificial turf is “inherently discriminatory,” constitutes “differential treatment based on sex” and amounts to “singling out the women’s event for adverse treatment.” The majority of the players’ complaint was dedicated to decrying the evils of turf, but somehow, in 15 pages and 83 paragraphs of allegations, it neglected to allege a legally protected right to play on grass.

Perhaps this is because, as the CSA details in its response, FIFA has condoned the use of turf in all competitions, including the men’s World Cup, since 2004, and has established and implemented an extensive program to ensure the quality of any turf used. Thus, there is no legally protected right to grass. Moreover, for a claim of discrimination to sway a judge or juror — or, in this case, a panel of experts convened to interpret and adjudicate the laws of Ontario, as they relate to gender-based discrimination — the litigant must establish some sort of discriminatory animus. A prevailing preference for turf, however well-established and widespread, is not legally sufficient to establish discrimination, especially given that the rationale put forth for its use is reasonable and factually sound.

The CSA maintains that the use of high-quality turf is integral to Canadian soccer due to the nation’s notoriously harsh climate, and the decision to host the tournament on turf rather than natural grass was motivated by the desire to provide consistent top-level playing conditions for all twenty-four teams during the event. Anyone who has ever driven on the chunks of cracked-up concrete that constitute Quebec’s roads during the spring thaw will tell you that the brutal realities of Canada’s perpetual winter are less a stereotype than a national nightmare.

Moreover, an inconvenient truth the American media has neglected is that these same women compete, week in and week out, on synthetic turf in the National Women’s Soccer League without complaint. Will gender-based discrimination occur when Abby Wambach and Alex Morgan and Heather O’Reilly leave the World Cup and Canada behind to play matches on turf in America? Does playing matches on FieldTurf not constitute gender-based discrimination when it’s done in Rochester and Portland and Boston? It would appear that gender-based discrimination, apparently, has specific geographical coordinates. Who knew?

At this point, the fact that the players will lose their legal battle looks to be as certain as another Ballon d’Or nomination for Lionel Messi. The CSA succinctly summarized the many deficiencies of the players’ complaint in its response when it stated, in scathing terms, that “the way the Complaint has been assembled, including … the lack of evidentiary or documentary support … suggests that the applicants are seeking a symbolic victory, not a practical outcome.” How, then, is such victory to be achieved?

Japan v USA: FIFA Women's World Cup 2011 Final

Photo by Friedemann Vogel/Getty Images

A temper trantrum and its inconvenient truth

The player’s likelihood of legal recourse about equal to Milan’s chances of winning this year’s Scudetto (that’d be slim to none, for those who have yet to discover the glory of the Serie A). The only tactic left is a full-blown boycott of the tournament. Yet the women have publicly stated that a boycott isn’t in their game plan. “We want to play in the World Cup. It doesn’t matter how,” Verónica Boquete – a Spanish international whose name appears on the complaint – has admitted.

Boquete’s comments reveal an inconvenient truth. What this “lawsuit” really amounts to is a very public, protracted temper tantrum by grown women upset they have been denied what they believe they are entitled. As the clock winds down on the World Cup, the players’ perplexing legal strategy, as well as their less-than-convincing commitment to their own cause célèbre, make their cries of discrimination difficult to digest. It becomes challenging to heed the call to war when those who would wage it are themselves unwilling to do battle.

It’s tough to swallow the players’ claims that the use of turf at the Women’s World Cup will “devalue their dignity, state of mind and self-respect” when they regularly compete on this same surface without complaint yet are unwilling to put up a fight when push comes to shove. It is beginning to look like this charade is less about fundamental rights than preference, ego, and entitlement.

The players’ complaint itself utilizes the word prefer repeatedly throughout, claiming one of the most egregious indignities visited upon them is the disregard for the results of a survey conducted by FIFA regarding their opinions on artificial turf. However, as these women will soon learn (assuming they have not already), there is no legal cause of action for hurt feelings.

The words privilege and perspective have largely been absent from Turfgate’s public debate, yet they say so much. It is of note that the 15 women whose names appear in the tribunal’s decision (and there are only 15 of them, not 40, as is often reported) represent the upper echelon of the game’s elite. They are high-profile athletes have made their names with the world’s best teams and enjoy the support of celebrities and senators alike. The women who have brought this complaint do not have to worry about having equipment to practice with, or how they will get to the competition venue, or where their next meal is coming from; such as, for example, the team from Trinidad and Tobago does.

For these women, a preference as to playing surface is the most pressing concern ahead of next year’s World Cup. But can there really be any meaningful discussion of equality when, while Wambach et cie are busy tweeting opinions about the evils of turf and tying up the CSA in a futile legal battle, their comrades are begging for food? Yes, there are most athletes that would rather play a preeminent tournament on natural grass than artificial turf. Yet it should not be ignored that for nearly as many of their fellow athletes, stepping onto the field come June is itself a dream far out of reach.