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Players' Response to CSA and FIFA Filings of 11/3-11/6

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A point-by-point rebuttal of the best arguments the Canadian Soccer Association and FIFA made to the Human Rights Tribunal in their filings of 11/3-11/6/14.
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    FIFA ’S BEST ARGUMENTS ON THE MERITS FAIL FIFA argues that the decision to use turf was not based on sex and not discriminatory (  see FIFA  Interim Remedy Response  at Para. 32). But when offering to provide a basis for its decision, FIFA leans heavily on the “climate and weather conditions in Canada.”  Russia and Qatar   both have extreme conditions, and yet the upcoming men’s World Cups  will be held on grass in those locations . So FIFA’s central, supposedly -gender-neutral rea son for staging the women’s World Cup on turf only exposes even more its lack of respect for the women’s game and its non - compliance with Ontario’s Human Rights Code.  FIFA then purports to have acted on the belief that turf is “ different but equal ”  to grass:    First, FIFA says “2 - star” turf is jus t as good as grass. This certification program has little credibility, especially because it appears to serve as a profit-center for the collection of significant fees from turf makers. And FIFA serves as both judge and jury over the quality of its own turf; for example, it relies on the “expertise” of Eric Harrison, FIFA’s supposedly -independent turf expert, who has evidently been consulting for FIFA s ince 2000. FIFA’s reliance on a synthetic surface expert like Mr. Harrison has been likened to “[h]aving Dracula speak on the need for more blood banks.” ( Forbes, Nov 2, 2014).    Second, FIFA claims that plastic pitches have been used in “ high-level ”  tournaments, but it cannot answer the central charge: they have never been used at a m en’s World Cup and will not be until at least 2026.    Third, FIFA argues, citing no evidence, that there is no increased risk of injury on turf. Yet, the data on the kind of non-contact ACL injuries that players fear most is clear and abundant: grass is safer for knees and ankles. (Journal of the American Academy of Orthopedic Surgeons, May 2013; Journal of Biomechanical Engineering, Jan. 2010; BMC Sports Science, Medicine and Rehabilitation, Mar. 2014.) Studies suggesting otherwise have been reportedly funded by turf companies (Reuters, Sep. 14, 2012). The players also submitted  photographic evidence of debilitating abrasions uniquely caused by turf. FIFA never addresses the heightened risk of these turf-specific injuries.    Fourth, FIFA suggests that the turf is part of a “long - lasting” investment in Canada. Yet nowhere does FIFA say that five of the six stadiums involved already had turf fields. (Meanwhile, CSA highlights the cost of replacing turf practice fields, while failing to mention the many grass fields convenient to each venue. CSA Response  at Para. 34).    Fifth, FIFA contends that turf makes it easier for staging other events in the stadium during the month-long tournament. The  players’   “  pitch perfect ” proposal had already taken this contingency into account. The very same modular system used in the 1994 and 1999 World Cups allowed grass to be taken in and out of stadiums.      CSA’S  BEST ARGUMENTS ON THE CORE ISSUES OF THE CASE ALSO FAIL CSA’s central argument on the discrimination claim itself is that the women’s World Cup tournament will be held in the “  best facilities. ”  ( See, e.g. ,  CSA Response  at Para. 29). But last year the Canadian men’s national team  players and coaches refused to play mere qualifying games in venues such as BC Place, and CSA accommodated their concerns. CSA’s General Secretary stated that for men “it has to be grass…our [men’s] coaching staff and players prefer grass. There’s a preference for that.” ( Canadian Soccer News, Jan. 30, 2012). This “different but equal” argument fails: If the “best” is not good enough for the men, then, under Ontario’s Human Rights Code, it’s not legal to impose it on women. At the time of bidding, Canada had three  professional-level grass stadiums: Saputo Stadium, BMO Field, and Moncton Stadium. CSA left two of these out of its bid, tore the grass out in Moncton and now claims that it has offered the women the best Canada has. O ne of their “best” facilities, Commonwealth Stadium in Edmonton, is poised to host eleven matches on its five-year old turf. Another, BC Place, which will host the final, features turf that has been roundly criticized and likened to concrete. THE RESPONSES TO THE PLAYERS’  REPRISAL CLAIMS ARE NON-DENIALS CSA and FIFA also fail to rebut the players’ reprisal claims . First, they deny that they have engaged in any intimidation or retaliation against the players; if this is true, why would they fight the players’ effort to make their promise not to retaliate a binding one? The players have offered to drop their reprisal claims if CSA and FIFA both sign such a promise; so far, they have refused. FIFA deflects responsibility from reprisals by suggesting that the national teams are separate entities. Are they contending that national teams on their own initiative would threaten their own  players with suspension? What is more, FIFA’s court filings  include in their materials a letter from the play ers’ attorney to the U.S. Soccer Federation , a document which must have been forwarded to FIFA by way of U.S. Soccer. As evidenced by repeated citations to e-mails in the filings submitted in this case, there are numerous, direct communications between CSA, FIFA and the national federations. Astonishingly, FIFA and CSA together argue that the players ’  reprisal claims do not offer enough first-hand information. Yet by intimidating the players named in the reprisal claims, CSA and FIFA are to blame for any reticence the players might feel. Secretary General Valcke personally denies these allegations, but does not once attest in his declaration to have spoken with key individuals directly involved in the players’ claims, such as the officials in the Mexican, Costa Rican and French federations. The players cannot take solace in Secretary Valcke’s claim that he never authorized any threats to be made when the fact is that they were made, and made under the auspices of FIFA and its affiliates. The same can be said of CSA President Montagl iani’s denials . Their declarations are not denials that reprisals were issued or that the players have felt and still feel threatened  –   certainly they do not reassure the players who have withdrawn based on well-grounded fears that they would be suspended if they proceeded with their claim.    CSA AND FIFA CONTINUE TO PLAY LEGAL GAMES First, FIFA still claims it has not been “served” properly, but the Tribunal, not to mention  players’ counsel, has delivered the materials in accordance with the Tribunal’s rule requiring that respondents have “effective legal notice.” FIFA cannot dispute  that it has such notice. FIFA also conducts business in Canada, in Ontario in particular, so it cannot escape its jurisdiction. FIFA officials have been working in Canada on this World Cup for years now and will make millions in revenue from it as well. FIFA appears to be in clear violation of Ontario law requiring it to maintain an agent for service in Ontario. FIFA and CSA also claim the Tribunal lacks jurisdiction; they suggest that because only one of six venues is in Ontario, the Tribunal cannot issue orders concerning the other venues. But as the  players argued in their srcinal brief, because the organizing committee headquarters is in Ontario, an order requiring a change of plans to be executed by those organizers would be well within its jurisdiction. CSA claims that FIFA, as an “international body” , requires the case be he ard in an “international forum”. B ut if CSA and FIFA are intent on discriminating against women in Canada, the Tribunal has every right to stop them. CSA and FIFA continue to demand “proof” of every players’ intention to be named.   See, e.g. , CSA Response  at Paras. 39-44. They offer no grounds for such a demand, because there are none. Several lawyers in good standing have attested that they in fact represent the players and, as with virtually every lawsuit in any court, that should be sufficient. Players’ counsel have never, for example, demanded that Mr. Joseph Arvay furnish proof that he in fact represents CSA. CSA argues that the players lack “standing” to sue because only national teams play in the tournament, not individual players. First, CSA ignores that virtually the entirety of the German and United States teams have signed onto the Application. And second, this argument defies not  just logic, but the Human Rights Code . If the national teams won’t act as teams, which in at least two instances they in fact are, then the Tribunal can and must still vindicate the rights of individuals requesting relief. The relevant human rights tribunal decisions on gender discrimination in sports have regularly addressed discrimination suffered by individual players, even though these players are on a team. FIFA has broadly proclaimed that there is no “Plan B” and now (along with CSA) claims that the  players are “out of time . ”  But organizers won’t have even completed study of the turf surfaces in Canada until the end of January in 2015 , and FIFA’s and CSA’s  disingenuous arguments that that the players are “out of time”  cannot withstand scrutiny. FIFA and CSA misled players throughout 2013 by saying that their views will be considered. In July of this year, the players informed the respondents in writing that their plans were wrong and illegal. Now, CSA and FIFA contend that they have successfully run out the clock. Not only is that false, but their reliance on legal gamesmanship tells us all we need to know about the strength of their case.
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