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CSA formally responds to Women's World Cup turf lawsuit, arguing against expedited process and stressing involvement of FIFA, different provinces

The CSA has formally responded to the turf lawsuit filed by American Abby Wambach (20) and other prominent international players.
The CSA has formally responded to the turf lawsuit filed by American Abby Wambach (20) and other prominent international players.

The Canadian Soccer Association appears set to fight the Women's World Cup turf lawsuit from a group of prominent American and international players every step of the way. The CSA officially filed a formal response to the applicants' request to expedite the suit this week and made that response public Friday. Not only does their response argue against expediting the suit, it brings up key timing and jurisdictional issues that indicate what a substantial part of the organization's strategy will be. First off, here's what their response says about the timing involved:

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 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.

There are excellent points in there, particularly why it took so long to file a lawsuit. It was quite clear in Canada's 2011 bid that the tournament would be played on turf; in fact, FIFA's requirements for surface uniformity mean the grass in Moncton even has to be replaced by turf. The protests about it are only a recent development, and this lawsuit comes less than a year before the tournament's set to start. There's a chance this may be expedited anyways, as the closer this gets to the starting date, the more futile exploring this in court becomes, but the CSA's case that the applicants should have brought their concerns forward much earlier has some merit.

It's also interesting to consider the other issues the CSA raises in this response, namely the complicated nature of the case from both a jurisdictional standpoint and a scientific one:

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, a national organization, six host cities in various provinces, and facilities with diverse ownership and 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.

There are a lot of important points in there. The comment about this involving an international body may prove a crucial part of the defence, particularly considering how the ski jumping lawsuit ahead of the 2010 Olympics played out. That ended with a B.C. court ruling that there was discrimination, but it was by the International Olympic Committee rather than the local organizing committee, and that the Switzerland-based IOC was beyond the court's reach. There are plenty of similarities in this case with Swiss-based FIFA (which, notably, has not officially responded here), and it appears the CSA may argue along those lines. Moreover, it's worth mentioning that this case is before an Ontario tribunal, but this World Cup is going to be played in six different provinces across Canada and is being organized by a national body (the CSA). That may or not come into play, but it certainly suggests this isn't a simple case. (That can also be said about the scientific issues at play; it's far from resolved that turf causes more injuries, as the applicants claim.)

Moreover, in the last paragraph quoted above, the CSA contends that one of the key issues here isn't grass or turf, but Canada hosting the tournament at all. There's some merit there, as Canada's top stadiums in most of the cities involved are turf and are likely going to continue to be turf. It's not like the CSA's bid involves the women playing at second-tier stadiums. In fact, many of these stadiums were used (with turf surfaces) during the 2007 men's U-20 World Cup, so they've proven suitable for high-level FIFA men's competitions before. The applicants might counter that temporary grass can be installed in those stadiums for the duration of the World Cup, but that's not a settled issue, especially considering that several of those stadiums may also be used by CFL teams during that period. (If they are, that could make for disastrous grass conditions for soccer.) It's also notable that this lawsuit exclusively involves players from outside Canada; no one on the Canadian women's team has really publicly objected to the turf so far, much less joined a suit over it.

We'll see how this process plays out, but the response from the CSA gives us some clues as to how they plan to proceed. They may or may not win their request to deny the expedited hearing, but they certainly seem to have a strong case on timing and jurisdictional issues in particular. We'll find out down the road if that's enough to convince the courts relatively quickly that this case is without merit, or if it will drag on as we get closer to the World Cup next year.