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FIFA has been running full speed into a legal nightmare since it decided in March of 2007 to ban religious items from team kit. In a decision of the International F.A. Board FIFA decided that "The basic compulsory equipment must not have any political, religious or personal statements... The team of a player whose compulsory equipment has political, religious or personal slogans or statements will be sanctioned by the competition organizer of FIFA." This new rule, which has become enforced gradually over the past few years, resulted in the Iranian women's football team disqualified from the Olympic qualifying tournament. That match took place in Jordan. Interestingly FIFA, in its public relations efforts since this event, has that that the hijab ban is based on safety and not this other rule, which is a complete about face from what they had been saying in the past when they referred to the above quoted rule specifically. With advanced and perfectly safe sport hijab options available on the market, I am not buying the "safety" argument.

As a recent law school graduate and a female athlete I could not help but wonder what would happen if that decision would have been made in Canada.

Could you imagine? It could have happened. Actually it has happened in the past regarding an 11 year old female football player in Quebec. But lets take this one step further. Imagine the 11 year old player for Quebec, or a visiting team from Iran, is banned from playing in a match held somewhere in Canada for wearing a religious item like the hijab. Now imagine the player, or the team, had sufficient financial means, drive and resentment to challenge that decision with a provincial human rights tribunal.

What would happen?

International Sport Organizations, and all sports leagues for that matter, put tremendous weight on the "rules of the game." But what will happen if (and I think when) a court or tribunal makes a ruling that the "rules of the game" are illegal due to discrimination?

There have been various human rights code decisions across Canada dealing with an individual's religious rights. Several of which involve the wearing of the hijab and similar religious items. In one such case the Ontario Human Rights Tribunal commented on an employers right to set a dress code that would interfere with a woman's religious choice to wear a hijab:

[58] I find that the respondents’ enforcement of the dress code in relation to the applicant, as well as the manner of enforcement, violated the applicant’s right to be free from discrimination pursuant to section 5 of the Code.

[59] Employers are entitled to maintain and enforce appropriate dress code policies. However, they must ensure that such policies do not discriminate on their face (e.g., no hijab allowed) or indirectly through the application of a neutral rule that has an adverse impact on a member of a protected group (e.g., no head coverings allowed), unless they can show the rule is a necessary requirement of the job that cannot be accommodated short of undue hardship.

The dress code rules in employment are roughly analogous to the so called "rules of the game." Both are set by a particular organization that must be followed by its members/employees. A quick search of the Canadian case law finds that there have been no decisions that directly decide whether or not a sports leagues rules regarding religious clothing would be struck down based on human rights laws. Although it is possible that such a case could arise since sports organizations have repeatedly been found to be under the jurisdiction of human rights codes as a "service".

It is difficult if not impossible to predict what could happen if a test claimant were to challenge FIFA's rules as applied in Canada. Recently, for example, a football referee was prevented from continuing her summer job in Montreal because she wore a hijab. Apparently the 15 year old girl is not taking the decision lightly and has contacted the Council on American-Islamic Relations CANADA branch for help appealing the decision. They intend to appeal directly to the Canadian Soccer Association to overrule the Quebec association's decision. If their efforts negotiating with the Canadian Soccer Association are not effective, this would certainly make for an interesting human rights case. It is perhaps an even stronger case than an athlete challenging the FIFA rules as this involves a paid referee and there are clearly analogous tribunal decisions in an employment relationship, as mentioned above.

This leaves Canadian football associations in quite the predicament. Whose rules do they follow? FIFA's rules of the game or the various provincial human rights codes?

The last time this issue came up in Canada the Canadian Soccer Association was put in the rather uncomfortable position of going against the FIFA rules. In an interview with the National Post, Sandra Campbell, spokeswoman for the Canadian Soccer Association, was quoted as saying "there is no rule barring Canadian soccer players from wearing the hijab. She added that Canadian soccer officials would not want to send the message that Muslim girls are not welcome on the pitch."

What will happen if Canadian associations keep letting women play while wearing a hijab and then , suddenly, they have to enforce completely different rules when the Canadian Soccer Association hosts the 2015 Women's World Cup? Will there be a stand off between the Canadian Soccer Association and FIFA? I doubt it. What if there is a tribunal decision decided BEFORE the 2015 Women's World Cup? Will FIFA temporarily drop the ban while the tournament is in Canada?

Until there is a tribunal decision on point, or until there is direction from Sport Canada or a change of heart from FIFA, everyone is currently hanging in a dangerous legal limbo. The Canadian Soccer Association will likely continue to say that there is no rule preventing women from wearing a hijab in Canada, which is completely the opposite of what FIFA is saying internationally.

I would bet that someone brings this case to a tribunal sooner rather than later.

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This post is related to an ongoing story:

• FIFA Bans Hijab, Pushes Iranian Team to the Sidelines

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