North Carolina Lawyers Weekly
The U.S. women’s soccer team’s July 5 triumph over Japan in the World Cup finals capped a tournament that was everything the team’s players could have dreamt of—except, perhaps, in one important way. Unlike every previous men’s and women’s Cup, this one was played on artificial turf, a surface known to increase the risk of injuries and negatively impact the quality of the sport’s play.
Prior to the tournament, players across the globe had vocally protested the choice of surfaces, arguing that FIFA, soccer’s governing body, and the Canadian Soccer Association, which hosted the event, were discriminating against women by forcing them to play the sport’s marquee event on an inferior surface—literally an unequal playing field.
Pictured, from left to right: German national team goalie Nadine Angerer, two summer associates for Boies Schiller, U.S. national team forward Alex Morgan, and attorney Hampton Dellinger, who represented the players in their lawsuit against FIFA.
When Hampton Dellinger, a Durham attorney and former radio broadcaster for the University of North Carolina women’s soccer team (which counts six alumni among the Cup’s winners), heard the players’ complaints, he asked a friend on the team if any lawyers were helping them fight FIFA in court. Dellinger, who practices with Boies, Schiller & Flexner in its Washington, D.C., office, agreed to take on the case pro bono, representing players from a wide swath of countries, including the U.S. team.
“Part of what drew me to this issue was that it was so immediately clear that this was wrong and that gender discrimination was at the heart of it,” Dellinger said. Although the lawsuit was not ultimately successful in getting the games switched to grass, he said that he thought the battle against what he dubbed FIFA’s “grass ceiling” still had tangible positive benefits for female players.
A surface-level problem
Artificial turf is considered inferior to natural grass soccer pitches for several reasons. The most obvious is that it gives players nasty skin abrasions when they slide tackle and is believed to increase the risk of serious injuries. In addition, it affects the play of the game itself, causing the ball to move faster and bounce at times when it would otherwise roll.
Also, in the summertime, turf fields become like baking sheets. A player can easily run the equivalent of 7 miles in 90 minutes of play, and journalists at the games reported that the turf fields reached temperatures as high as 120 degrees. Dellinger said that there would have been a massive uproar if men had been asked to compete under such conditions, and argued that forcing female players to do so was demeaning to women and discriminatory.
“In many ways, it was worse than expected,” Dellinger said after this year’s Cup. “It was obviously a godsend not to have any catastrophic injuries to knees and ankles because of the turf, but there’s no doubt that the risk was greater to the players … the fact that women were singled out for what everyone knows is a second class surface is just unfair.”
Worthwhile Canadian initiative
The perhaps ironic element of the dispute is that Canada has human rights laws prohibiting gender discrimination that are far more comprehensive than any that exist in the U.S. and many other countries. In addition, the Canadian province of Ontario has a special Human Rights Tribunal, a quasi-judicial tribunal dedicated to hearing cases of alleged human rights violations. The players filed suit against FIFA and CSA in the HRTO, hoping to avail themselves of those protections, with one of the U.S. team’s most celebrated players, Abby Wambach, serving as the named plaintiff in the case.
The tribunal found, over FIFA’s objections, that it had jurisdiction in the case and that FIFA had been properly served. In response, Dellinger says, FIFA and the CSA deployed a tactic familiar to any soccer fan: it stalled and delayed until it could run out the clock. (In quintessentially Canadian fashion, HRTO proceedings begin with voluntary mediation, but FIFA declined to enter into that process.)
In January, after the tribunal declined to expedite the case, the players withdrew their complaint. In a further irony, the decision to withdraw was partly motivated by the sizable differences between turf and grass the players were protesting—teams needed to know which surface would be used in the tournament so that they could train accordingly.
“That was a very significant part of the decision to withdraw, to let the players and the coaches focus on the World Cup and to do what I thought was very much in the best interest of the sport, even though FIFA and CSA, I think, did not put the sport and certainly did not put the players first,” Dellinger said.
Muscling in on FIFA’s turf
Despite the setback, Dellinger said that the case has nevertheless yielded positive results by both raising awareness of the issue and securing the tribunal’s ruling finding jurisdiction over FIFA. FIFA has already announced that the 2019 Women’s World Cup, to be held in France, will be played on natural grass.
“There’s a lot of symbolism with this issue, but it was not a symbolic effort, and a lot of good came out of the effort,” Dellinger said.
Before joining Boies Schiller, Dellinger served as a North Carolina deputy attorney general and later practiced with Robinson, Bradshaw & Hinson, which has a robust sports law practice. Working in “sports law” is a popular career ambition for many aspiring lawyers, but Dellinger said he thinks the term is a misnomer. He painted the case as a classic anti-discrimination suit in which the plaintiffs just happened to be professional athletes.
“I think in a way there’s no such thing, or there’s not much of a thing, that you could call sports law,” Dellinger said. “There’s law, like contract law and anti-discrimination law, and you can apply it to the sporting arena.”
Fortunately for American fans, the plastic pitches didn’t stop the U.S. women from winning the tournament in dominating fashion.
“It was really uplifting,” Dellinger said about watching the U.S. squad prevail. “I had thought throughout that the players would rise above the attitude of the hosts and of FIFA, and that’s exactly what happened.”
Follow David Donovan on Twitter @NCLWDonovan
