Legal Analysis: Why Abby Wambach And Co. Could Have Beaten FIFA In Court

January 21, 2015, 5:29 PM

— -- The discrimination case filed by the coalition of the world's finest women soccer players against FIFA for forcing them to play the World Cup on artificial turf was a sure winner.

FIFA's decision to play the games on turf when the men's World Cup is played on natural grass was obvious gender discrimination that, as the women said in their first brief, was an action that "devalued their dignity, state of mind and self respect" by forcing them to play "on a second class surface." If that were not enough, the women added that turf "altered the way the game was played" and subjected them to "serious risk of injury."

The ultimate measure of the strength of the women's case is that there was nothing FIFA could offer in its defense. Instead of attempting to explain the substance of its decision, FIFA responded to the women with threats of retaliation, dilatory maneuvers, hyper-technical and legalistic objections to the Ontario court where the women filed, and, finally, with defiant claims that it would ignore court orders and even cancel the tournament.

In addition to the obvious discrimination, a clear violation of the constitutions and bylaws of both FIFA and the Canadian Soccer Association, the women were brilliantly represented by lawyers from the firm of Boies, Schiller & Flexner, one of American' premier litigation law firms. The lead attorney, Hampton Dellinger, seized the initiative early in the process and was pushing FIFA into a corner from which there was no escape when the women decided to withdraw their claim.

Throughout the process, the women and Dellinger played by the rules of the Human Rights Tribunal of Ontario. When the tribunal suggested mediation as a possible method for settling the dispute, the women quickly agreed, even though they knew they would prevail in any trial. FIFA refused to participate in the court's mediation, a move that most litigating lawyers would consider unthinkable. If the tribunal suggests that you do something, you do it or at least pretend to be doing it.

Later in the process, Dellinger and the women made a settlement offer to FIFA that should have ended the dispute in an amicable way. They suggested that they would play the preliminary games on turf as scheduled if FIFA would install natural grass for the semifinal, third-place and final matches. The grace and generosity of the offer are not what you expect from a litigant who is clearly winning the dispute.

FIFA, of course, refused the offer. Although FIFA's response to the women was not a big surprise to anyone who has watched the organization in recent years, it was a bit of a surprise when on Dec. 5, FIFA officials admitted their ties to the artificial turf industry. FIFA secretary general Jerome Valcke acknowledged that turf companies pay FIFA a licensing fee for turf fields. And CSA president Victor Montaliani said he welcomed open turf sponsorship, saying "we're more than happy to talk to anybody who wants to give us money."

The women abandoned their quest for justice, as attorney Dellinger said, because they "were doing what FIFA and CSA have proven incapable of -- putting the sport of soccer first."

The women never wanted to sue FIFA. They begged the authorities to switch the games to natural grass and filed suit only as last resort. Their offers to mediate and to settle, and their persistence in the face of threats of reprisals from FIFA may not have resulted in a World Cup on grass, but they clearly demonstrated the sexism, venality and greed that are the hallmarks of FIFA and the CSA.

The women were winning their case in the Ontario tribunal. But by taking the high road and withdrawing their case, they saved the World Cup and won in more important ways.