lii

~
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.
Download forms from the Tribunal's web site www.hrto.ca. If you need a paper copy or accessible format, contact us.
Human Rights Tribunal of Ontario Phone: 416-326-1312 Toll-free: 1-866-598-0322
655 Bay Street, 14th floor Fax: 416-326-2199 Toll-free: 1-866-355-6099
Toronto, Ontario TTY: 416-326-2027 Toll-free: 1-866-607-1240
M7A 2A3 Email: hrto.registrar@ontario.ca
r&~i~tiPmlofp_ljrn_a.ti.
Tribunal File Number:
Name of Applicant:
Name of each Respondent:
~-------------~--~~-~
Street #
IC/o 700
Street Name
I L/e-,t- 4~o~'~r- 5\"f'd.+
ApUSuite
I 1,,!"f) Q
Da time Phone Cell Phone TTY
'o'f S-I 'I 't'l
If you are filing this as the Representative (e.g. lawyer) of one of the parties please indicate:
Name of party you act for and are filing this on behalf of: c."-"",..j. .. ",, 'S4( ..~U" A"' ..i_.k... I ('4.- r"~~ f~i~y
LSUC No. (if applicable): ---:r. ,t.,l A fv",y, A.L . ~ FA-tl:., L,Ir (I
01/07/2010 Form 15- Page 1 of 2
~
Ontario
Human Rights Tribunal of Ontario
Response to Request to Expedite Proceedings - Rule 21 (Form 15)
What is the best way to send information to you? .
(if you check email, you are consenting to the delivery of documents by email)
EJ Mail gEmail [J Fax
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 the
issues. Mediation is confidential.
Do you agree to try mediation? DYes
I 4. Signature
By signing my name, I declare that, to the best of my knowledge, the information that is found in this form is complete
and accurate.
Please check this box if you are filing your response electronically. This represents your signature.
You must fill in the date, above.
Freedom of Information and Privacy
The Tribunal may release information about an Application in response to a request made under the Freedom of
Information and Protection of Privacy Act. Information may also become public at a hearing, in a written decision, or in
accordance with Tribunal policies. At the request of the Commission, the Tribunal must provide the Commission with
copies of applications and responses filed with the Tribunal and may disclose other documents in its custody or control.
01/07/2010 Form 15- Page2 of 2
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 Football
Association ("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 FIFA 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
- 2-
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, 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.
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 admitted
to 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 their
respective Associations. The Associations must comply with FIFA's governance and its dispute
resolution procedures for Associations, teams, clubs and players. The Associations must also
ensure that their own members comply with the statutes, regulations, directives and decisions of
FIFA bodies.
FIFA regulates Association soccer in and among the 209 jurisdictions, which covers most of the
world. 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
- 3 -
Code of Ethics and Rules Governing the Players' Status Committee and the Dispute
Resolution 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 the
competition".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 Competition
is 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 the
Competition, 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 of
Arbitration for Sport. For example, the Bylaws of the United States Soccer Federation provide
as 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
-4-
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 850,000
players 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 7 players (or even the 18) is resident in Ontario or plays on an Ontario or on a Canadian
team. 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 of
Canadian 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.
FIFA 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 FIFA Handbook of Requirements
- 5 -
can be awarded the FIFA 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. FIFA does not distinguish between
male and female players in the application of those standards.
Canada now has 19 FIFA approved 2-Star turf fields and 67 FIFA approved I-Star turf fields. A
list of FIFA 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
FIFA 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 no
increased 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.
- 6 -
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 FIFA 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 cities
were 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 championship
game, 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.
-7-
3. The Applicants' Dilatory Conduct
To the CSA's knowledge, no one filed any claim of discrimination in relation to the Competition
until this complaint was filed over a year and half after the Competition schedule was
announced. Meanwhile, the CSA, FIFA and the host cities were diligently preparing for the
Competition, 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 has
been 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 the
circumstances 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 the
applicants, the complaint also lists no documents supporting the complaint other than a
memorandum of fact and law drafted by lawyers. Despite the length of time the applicants have
been 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 the
Competition. It is clearly impractical to reconstruct the various venues, including three CFL
stadiums, to include grass playing fields of sufficient quality. While the applicants suggest that
grass fields could be temporarily laid over the turf fields, the results of using temporary grass
fields have been very mixed. The applicants have not provided any evidence that a temporary
grass 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 urgency
or that there is a meaningful remedy available to them now that will not be available if the
hearing process can run its course. Finally, where a remedy is unavailable in any event, an
expedited hearing is not appropriate (Spooner v. Northumberland County Community and Social
Service 2010 HRTO 928.
- 8 -
Even where the test for an expedited hearing could be met, except in the rarest of cases, such an
order should not be granted where an applicant has not filed their application promptly after
identifying the alleged human rights violation. As was the case in Kwan v. Hospital for Sick
Children 2009 HRTO 621, Kearney v. Ontario Hockey Federation 2010 HRTO 522, and Rapp v.
Ontario Hockey Federation 2010 HRTO 526), this is not a circumstance that warrants the
exceptional measure of an expedited hearing.
D. Application of the Law to this Case
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. The
applicants should not be permitted to sit by for a period eighteen months to three years and then
demand that the Tribunal modify its procedures and impose onerous scheduling and evidence
gathering 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 the
proceedings 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's
Statutes 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 not
presently 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.
- 9-
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 each
player 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 FIFA. 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 to
prepare 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.