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

As many a first-year law student will tell you,\u00a0vigilantibus non dormientibus \u00e6quitas subvenit<\/em>\u00a0\u2013 equity aids the vigilant, not those who sleep on their rights.<\/strong><\/blockquote>\r\nAs many a first-year law student will tell you, vigilantibus non dormientibus \u00e6quitas subvenit<\/em> \u2013 equity aids the vigilant, not those who sleep on their rights. The law, many a dismayed litigant has discovered, is not forgiving to those who sleep on their rights.\r\n\r\nPerhaps what is most problematic about the players\u2019 case, however, is that, from a legal perspective, they simply do not have one. The Tribunal requires that complainants make out a prima facie case of discrimination. The players\u2019 argument is structured as follows: the competition is to be held on turf; turf is a subpar playing surface; ergo, because the competition will be played on turf, the players have been discriminated against, and this because of their gender.<\/span>\r\n\r\nHowever, the players have failed to establish evidence sufficient to support a prima facie case of discrimination. The term prima facie \u2013 roughly translated from Latin to mean \u2018at first sight\u2019 \u2013 is a legal term of art. A litigant is said to have a\u00a0prima facie case\u00a0when the evidence in his or her favor is sufficient to warrant that their opponent to be called upon on to rebut it. The players, however, fail to meet even this minimal evidentiary burden.\r\n\r\n\r\n\r\nGenerally speaking, for a discrimination claim to succeed, the litigant must be able to establish some sort of discriminatory animus. A prevailing preference for turf, however well-established and widespread, is simply insufficient to establish discrimination, especially given that the rationale for turf put forth by the Canadian Soccer Association is reasonable and factually sound.\r\n\r\nThe CSA maintains that the use of high-quality turf is integral to Canadian soccer due to the nation\u2019s notoriously harsh climate, and that Canada has expended significant resources to ensure its premier stadia are equipped to maximize advances in technology. Canada\u2019s bid to host the WWC was, accordingly, premised on the use of turf, and anyone familiar with Canada\u2019s facilities, the CSA argues, should have been immediately cognizant of the fact that turf would be used throughout the competition.\r\n\r\n