by Sport Law & Strategy Group
Since last year, the Quebec Soccer Federation (QSF) has prohibited its players from wearing turbans and other religious headgear. This April, the Canadian Soccer Association (CSA) reminded all provinces to permit the religious headgear and warned the QSF to comply with this directive. But earlier this month, the QSF upheld its ban on turbans so, in response, the CSA suspended the QSF’s membership with the national body.
This evolving scenario serves as an interesting national-scale case study for a number of different areas, namely: jurisdiction, human rights, and communication. The potential impacts of these developments are immense.
Quebec Premier Pauline Marois is quoted as saying that “[The QSF] is autonomous, not subject to the Canadian federation and, in this regard, I support it in its orientations [to ban the wearing of turbans]”. The Premier went on to assert that the suspension of the Quebec federation for such a ban is unacceptable and that the QSF has a right to set its own rules.
With respect to the Premier’s comments, it is necessary to realize that amateur sports in Canada, particularly national sports, are both monopolies and private tribunals. This means that the CSA is empowered to determine its own rules for belonging to the national body, determine the criteria for membership, and then discipline members when those members do not meet certain obligations. In return, the members determine the purpose and objectives of the organization, approve amendments to bylaws and other high level policies, elect Directors, and so forth.
Within the CSA, the QSF falls into the ‘Association Membership’ category which is provided to every provincial/territorial soccer association in Canada. To be such a member, the QSF must submit an application and agree to a list of rules and regulations that are required for membership – as well as accede to a list of obligations once membership has been approved. These rules include agreements that the QSF is properly incorporated, will agree to the Laws of the Game, will respect the CSA’s decisions and regulations, etc. In return, the QSF is permitted to have voting rights, nominate Directors, take part in CSA competitions (like National Championships), and exercise other rights as specified in the CSA bylaws.
Further, the CSA’s bylaws outline ways in which a member may be suspended, including but not limited to “violating its obligations as a Member”. In addition, the CSA’s bylaws prohibit other members from “maintaining relations of a sporting nature with … Members that have been suspended”. This section means that other Association Members (like The Ontario Soccer Association and Soccer New Brunswick) may not interact with the QSF. This rule is commonly known as a “tainting rule” and is very common throughout sport, being one of the key levers that is used to uphold and maintain amateur sport’s monopoly.
Essentially, the QSF is only subject to the CSA’s rules if it wants to remain a member of the CSA. But without QSF membership in the CSA, there may be significant issues for soccer in Canada in the near future.
The QSF’s initial argument is that wearing religious headgear on the soccer pitch is a safety issue and, since there is no explicit directive from FIFA (the international governing body for soccer) about whether the headgear is banned or allowed, the QSF may apply the international rules however it wants in the best interests of safety.
The QSF cited the potential for injury, but was not aware of any cases of where a soccer player was injured because he or she was wearing religious headgear.
Since the QSF offers services to the public it must do so under the jurisdiction of human rights legislation in Quebec and, in Quebec, one of the prohibited grounds for discrimination is religion. That a group is banned from participating in the QSF’s services because of its religious headgear could result in a claim of discrimination against the QSF. The QSF would then have an opportunity to prove that the discrimination was justified (and presumably the safety angle would be a possible justification). However, the state of human rights law in Canada today is that such arguments of justification for discrimination must be based on compelling empirical evidence, not just anecdotal observations or casual expressions of concern. Without compelling evidence that the wearing of religious headgear poses a measurable and significant safety risk, there can be no such justification argument. Furthermore, even if there were empirical proof of a safety risk, QSF would also have to demonstrate that QSF and its member clubs could not accommodate the wearing of religious headgear without suffering undue hardship.
When a potentially controversial decision is made, most reasonable people are able to understand the decision if there is a clearly articulated argument based on its merits. The decision would be communicated alongside the reasons why the decision was made. Reasonable people would then read the decision and debate the accompanying reasons. Such a process helps an organization, especially a volunteer-run sports organization beholden to its membership, demonstrate transparency in its decision-making and service to its members.
There are two decisions that have been made in this scenario (so far) and they contrast. First, the QSF decided to uphold its ban on turbans. Second, the CSA suspended the QSF.
In its statement, the QSF referred to reasons of “safety” yet could not identify a situation in which a player had been injured because of religious headgear. The QSF also referred to vague directions from FIFA as to whether religious headgear is permitted. Both claims have little substance. Reasonable people are not able to see any connection between safety and wearing religious headgear because it has been permitted in other provinces with no negative impacts or injuries. Since that ‘reason’ is not debatable, some individuals will begin to create and debate ulterior reasons for the religious headgear ban – even if those reasons are more nefarious. The FIFA claim can be debated, but the QSF is not a member of FIFA – the QSF is a member of the CSA. The organization should be following the national body’s interpretation of the international rules, and not its own interpretation of the international rules.
The CSA’s decision has been communicated with more tact and elegance. The CSA first privately asked the QSF to reverse their decision to ban religious headgear and, when that was not successful, issued a public suspension with reasons. The reasons pointed to the QSF’s membership with the CSA as well as the CSA’s directives that were not being followed. We understand that the CSA also issued a directive to other provincial/territorial soccer bodies explaining the decision as well as the consequences for organizations that interact with the QSF while it is under suspension. Here, again, the decision and its reasons were explained clearly and organizations can debate the decision on its merits.
Within the CSA’s bylaws, the consequences for a suspended member are listed. Some of these sanctions can be operationalized as:
- Prohibiting competition against other provinces
- Prohibiting competition in national championships
- Prohibiting participation in, or hosting of, international competitions or tournaments
- Prohibiting CSA officials to referee QSF competitions
- Prohibiting QSF to vote at CSA meetings
- Prohibiting access to hearing and disciplinary matters
Practically, the ban is a potential nightmare because in less than two months Quebec is scheduled to host the Canada Games (which includes a soccer tournament). Decisions on Quebec’s, and other province’s, participation in this event will need to be made in the very near future. As well, Montreal is one of six cities that will be hosting the 2015 FIFA Women’s World Cup of Soccer, which will be the largest sporting event ever to be held in Canada. The test event for the World Cup is the 2014 FIFA U20 Women’s World Cup, for which Montreal is one of four host cities. The CSA’s sanctions will prohibit the QSF from hosting any of these events. We acknowledge, however, that it may be possible for CSA to take steps to sanction matches held on soccer pitches in Quebec without the involvement of QSF, provided that such events not involve any teams or players who are registered with QSF.
This quick summary of high-level impacts does not do justice to the many competitions, at all levels of the game, involving QSF teams competing outside Quebec or other teams competing in Quebec that will not be played because of the suspension. Thousands of soccer players and their families will be adversely affected. We are carefully watching this issue unfold and we are hopeful for a result that strengthens both organizations.