Women’s World Cup TurfGate: An expert legal analysis of the players’ strategy

Editor’s note: Many soccer fans know that a group of leading women’s international players has appealed to the Human Rights Tribunal of Ontario to force FIFA and the Canadian Soccer Association to host next summer’s Women’s World Cup on grass rather than artificial-turf surfaces.

But relatively few observers outside Canada have a full understanding of the specific legal route selected by Abby Wambach, Alex Morgan and 60 or so of their colleagues, and can only guess at the strategy’s likelihood of success.

+READ: TurfGate Reader: Women’s World Cup players take 2015 pitch fight to human rights tribunal

Elizabeth Cotignola mug shot

So SoccerWire.com turned to Elizabeth Cotignola, a Canadian-based lawyer and passionate fan of the beautiful game with experience in the legal systems on both sides of the border, for an explanation. Her expert analysis should help women’s soccer fans better understand the situation, which may evolve again soon as the HRTO is expected to announce its decision on the matter this week.

Cotignola is an attorney currently located in Montréal, Québec. Born and raised the child of Italian expatriates in ‘La belle province,’ she began her career in Chicago at a boutique firm specialising in commercial litigation before returning home to Montréal, where she now works at one of the world’s leading aerospace innovators.

A former defender and lifelong devotee of the Church of [Paolo] Maldini, she loves Milan and her beloved Azzurri with a zeal most reserve for their significant others, and is currently in a tortured relationship with the Montreal Impact. The trilingual Cotignola has also written for A Football Report and XI, and maintains a blog devoted to the law of fashion. If you enjoy your football with a snide of snark, find her on Twitter at @LaDiavolina

Noting that every senior-level men’s World Cup ever played has been on natural grass, the players’ legal claims state that being forced to play the 2015 Women’s World Cup on synthetic surfaces is gender discrimination under the Ontario Human Rights Code.

“This differential treatment constitutes a violation of section 1 of the Ontario Human Rights Code,” the lawsuit reads.

First and foremost, the proceedings initiated by the players are not a lawsuit, because the Human Rights Tribunal of Ontario (hereinafter, ‘the Tribunal’) is not a court. It is an administrative tribunal, and the nomenclature matters.

To someone not versed in the subtleties of judicial procedure, an administrative tribunal may resemble a court, as such tribunals are empowered to render decisions regarding legal disputes. However, administrative tribunals are best described as ‘quasi-judicial adjudicative bodies.’ They may adjudicate proceedings, as courts do, but are not necessarily, and are rarely, presided over by judges, for example.

+READ: Women’s World Cup TurfGate: FIFA, listen up!

Why does this matter? The scope of an administrative tribunal’s jurisdiction is much more limited than that of a court. The notion of ‘jurisdiction’ refers to the authority conferred upon a court or judge to hear a dispute, evaluate the evidence presented and provide a legal remedy. The Tribunal is only authorized to hear matters that fall within the scope of the Ontario Human Rights Code.

The language used is telling – it is hypothetical. It is speculative…

A major hurdle for the players is that the Tribunal lacks jurisdiction over the parties involved. None of the applicants named in the complaint (hereinafter, ‘the players’) are residents of Ontario or ply their trade for an Ontario team. The Tribunal is not the proper arbiter of their rights and remedies. The players’ Application claims that the Tribunal possesses jurisdiction over the matter because of the ‘fundamental role the Ontario-based CSA is playing in the discrimination.’

TD Place, Ottawa

However, the Tribunal has no jurisdiction over five of the six stadia involved, as only one of the stadia are within the territorial confines of Ontario, and the Ontario Human Rights Code does not extend to services or facilities provided outside Ontario. The Tribunal thus lacks the authority to compel action in the host cities in other provinces. It cannot dictate action regarding a facility in Montreal, or Edmonton, or Vancouver, or Winnipeg or Moncton. The only competition venue in Ontario – and thus subject to the jurisdiction of the HRTO – is TD Place, in Ottawa.

Ergo, it is likely the most the Tribunal would be able to do is provide a financial remedy in the form of damages. However, the players have not sought damages, but injunctive relief – an order requiring that the Competition’s organizers take all necessary steps to ensure ‘the Competition’ (the Women’s World Cup) is played on natural grass as opposed to artificial-turf surfaces.

The players, in other words, have sought from the Tribunal a remedy which it lacks the jurisdiction to provide.

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