The sports fans among us are very aware of the 'human element' in the officiation and regulation of sports. Sometimes, there are controversial calls - bad calls on the field, or discipline off the field. And, for the most part, sports fans (and players) recognize that this is just a reality of the game. We gripe, then we move on.
So the recent case of West Toronto United Football Club v. Ontario Soccer Association is quite striking.
The dispute involves an Under 16 Boys Tier 1 Division soccer team, the West Toronto Cobras 98 (the "Cobras"). On August 23, 2014, they played the semi-final game of the Ontario Cup tournament, against the Woodbridge Strikers. The Cobras won, though the Strikers had raised some issue about the Cobras allegedly using six players as 'call-ups' improperly.
On August 27, the Strikers made a formal protest in relation to the alleged call-ups. The OSA's Protest Committee gave the Cobras until noon the next day to respond, and they did, denying the use of any call-ups.
On August 29, the OSA - of its own initiative - raised a new issue, alleging that one of the Cobras players had only been added to the roster on August 12, too late to allow him to play in the Ontario Cup. This took the Cobras completely by surprise - they were able to speculate that there may have been an administrative error at the Toronto Soccer Association (which couldn't be contacted until after the long weekend), and asserted that the player in question, Tristen, had been on their roster for the entire season. On September 3, the TSA confirmed to the Ontario Soccer Association that, in fact, there was an administrative error on their end, that Tristen had been accidentally removed from the roster (and placed back on it) on August 12, and had been playing for the Cobras for the whole season. It was an issue that hadn't come to anybody's attention until the OSA looked at the roster during the process of the Protest.
The Protest Committee, after receiving that information, essentially disregarded the TSA's advice. They concluded that there was 'no evidence' that his removal from the roster had been accidental, and that therefore he was ineligible and shouldn't have played in the semi-final game. As a result, it awarded the semi-final game to the Strikers, and they advanced to the final.
On September 5, the Cobras advised all parties that it would dispute the finding of the Protest Committee, but the final match was played (and won) by the Strikers on September 6, and they would advance to the National Club Championships. The Cobras attempted to file an appeal with the OSA, but the OSA returned the appeal materials, asserting that there was no appeal available from the decision of the Protest Committee.
Therefore, the Cobras brought an application for judicial review to the Superior Court of Justice.
Historically, judicial review was generally regarded as being available to challenge exercises of statutory power: If I'm empowered by a statute to make a certain decision, I'm obligated to exercise that power in a rational and fair-minded manner, and if I don't, then my discretion can be subjected to a judicial override.
However, there's some case law expanding judicial review beyond exercises of statutory discretion, in appropriate circumstances, and these circumstances called for it: The OSA controls the playing of competitive soccer in Ontario. "Put simply, you cannot play competitive soccer in this Province without subjecting yourself to the authority of the OSA." Justice Nordheimer was satisfied that there must be some fair process available for officials to be able to deprive teenage athletes of their hard-fought win.
On the face of the facts, the Protest Committee's decision was unsustainable. They'd raised an issue on their own initiative, and were completely unreceptive to reasonable explanations by both the Cobras and TSA confirming the inadvertent nature of the administrative error. (In fact, even before receiving the information from the TSA and making their decision, they'd already published a schedule for the finals, showing the Strikers playing in it.)
In the absence of some incontrovertible proof, the OSA concluded that there was 'no evidence' supporting the Cobras' position. Quite the contrary, there was significant evidence supporting the Cobras' position, no evidence to the contrary, and no apparent reason to doubt the veracity of the Cobras' and TSA's evidence.
From a lawyer's perspective, the Protest Committee's decision was clearly unreasonable. (Bear in mind, of course, that athletic committees don't typically have lawyers in them.)
But here's the rub: The Strikers have already moved on, already played a final match on the basis of having won the earlier one.
Justice Nordheimer crafted an unusually flexible remedy, ordering that, unless it's impractical to do so, the Final should be replayed between the Cobras and the other finalist, the Panthers. If that's not practical, then the Cobras should replace the Strikers as winners of the Ontario Cup, and should proceed to Nationals. Justice Nordheimer concluded that this result would do "no disservice" to the Panthers who already played and lost the Final match.
As it turns out, the OSA proposed a date for a replay, in the tight timeframes, but the Cobras unsurprisingly claimed to be unavailable that date - keeper injuries, and a top player overseas. Suffice it to say that the Panthers aren't exactly on the same page as Justice Nordheimer's "no disservice" conclusion.
Accordingly, the Cobras were given the title, and advanced to the Nationals, where they won Silver this past weekend, losing 2-1 to Coquitlam.
Firstly, I should say that it's downright lucky that the Strikers won the Ontario Cup final match. Despite their objections, Justice Nordheimer is right that that fact put the Panthers into a position of having nothing to really complain about. They played the loser of the Cobra/Striker match, and still lost. Yes, it's possible that it would have turned out differently against the Cobras, but there's no real reason to think it would have or should have.
Had they beaten the Strikers, that would have been a much more difficult scenario to resolve. It would be impossible to fairly resolve without a Cobra/Panther match, and even then there would invariably be 'fairness' complaints from the losing side because the short notice wouldn't leave either team at its best.
One might well argue that the Panthers should have been a party to the proceeding, given the potential impact on them of the order sought. (Incidentally, they were given notice of the proceeding, and didn't appear. Should they have paid a lawyer to try to secure a rematch?)
This decision is definitely fact-driven to a certain extent. The OSA's decision-making process was deeply flawed and deeply unfair to the Cobras, and that definitely pushed towards Justice Nordheimer taking jurisdiction: There has to be some place to go for a remedy, and where if not here? And, as strange as it is in some ways, I think it's probably the right call. And, to Justice Nordheimer's credit, he did remark a couple of times that courts should be very reluctant to interfere in sporting results.
Still, I'm a little concerned about floodgates: Sports organizations have to make decisions about eligibility, disqualifications, or team selections all the time. And, truthfully, they aren't necessarily very good about making sure that such decisions are fair. I've seen athletic tournaments - at the high-performance national level - where the person who created the 'draw' (i.e. the schedule of who plays whom) was a competitor in the tournament. Surprise, surprise - all the stiff competition ended up on the other side of the draw from his team, and he ended up progressing to a level that got him a cash prize. In my experience, I've seen a number of such issues - people being disqualified from events because of administrative errors without a fair review process, coaches selecting their own juniors for regional rep teams without an objective tryout process, etc. And they often do have difficult ethical or legal decisions to make, with real consequences: How to apply the criteria for funding grants to athletes; how to apply eligibility criteria for national representation in international tournaments, etc.
And it's never just about the individual athletes about whom the decision is being made - there are always other athletes affected. If an athletic organization allows a person with questionable eligibility to represent Canada at the Olympics, for example, that's likely to push somebody else off the Olympic team. If you waive a requirement for funding eligibility in recognition of somebody's extraordinary circumstances, that will mean that a different athlete doesn't get funded. It's easy to be sympathetic to somebody asking for special treatment, but it's always sum-zero, with another person being negatively affected by the decision.
I definitely see the need for fair decision-making processes, and I definitely see how certain athletic organizations are lacking in that area, but the prospect of significant athletic litigation worries me. Every time a decision is made, will the athletes play subsequent matches under threat of judicial intervention? Will athletes and athletic organizations - already significantly underfunded in most sports - need to start budgeting for substantial legal fees on a regular basis?
But the worst part is that it undermines the finality of games: Losing is an important part of athletic development. Losing gives you an opportunity to grow. Nobody likes to lose, but the ability to accept a loss, learn from the loss, and let it motivate you to train harder and play better next time, is pretty fundamental for a high performance athlete.
If we ever come to the point that a lost athletic match becomes like a lost trial - "Yeah, we lost the match, but we're reviewing our options for an appeal" - then I think we'll have forgotten what sport is really about.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.