Case Law Comment - Sagen v. VANOC (2009)

On July 10, 2009, the 15 women ski jumpers (the Skiers) suing the Vancouver Organizing Committee (VANOC) lost their bid for inclusion in the 2010 Olympic Winter Games in Vancouver/Whistler. Madame Justice Fenlon, of the BC Supreme Court, did however find that the omission of female ski jumpers is discriminatory but that control over which events are part of the Olympic Games rests with the International Olympic Committee (IOC), not VANOC. The IOC is not subject to the Charter (the Canadian Charter of Rights and Freedoms) and thus no remedy was available to the Skiers.

Nature of the Discrimination

The Skiers argued that VANOC is responsible for implementing the IOC decision not to allow inclusion of women’s ski jumping in the 2010 Olympic Winter Games as part of its contractual responsibility to plan, finance, organize and stage the Games and thus should refuse to implement any such discriminatory decision of the IOC.

Madame Justice Fenlon identified three problems with forcing VANOC to disregard the IOC’s decision to omit Women’s Ski Jumping from the Games and stage such events any different way. Firstly, she noted that the IOC owns the Olympics. At page 38 of her decision she wrote:

If an entity, including a government, tried to stage the “Olympic Games” without the IOC’s permission, no one would actually consider the event to be the Olympics. Similarly, if VANOC attempted to hold additional events during the 2010 Games, contrary to the decision of the IOC, no one would actually consider those events to be Olympic. Those events would be considered to be something else. The simple fact is that only the IOC may grant the imprimatur of “Olympic”.

As she noted earlier in her decision, an ‘exhibition’ event could be accommodated, if that was what the Skiers wished. But that was neither the issue, nor purpose, of the lawsuit. The Skiers’ claim was broader than that. These athletes did not wish an asterisk beside their names – they argued their sport had a legitimate place as an event in the Olympic Games.

Secondly, Madame Justice Fenlon noted that the staging of the Olympic Games requires the participation of international sport federations (ISFs) and national Olympic committees (NOCs). Clearly NOCs are under the authority of the IOC. ISFs are not except as they choose to engage in Olympic Games.  FIS (Fédération Internationale de Ski) - the ISF responsible for ski jumping, specifically accepted the IOC’s decision with respect to the non-inclusion of Women’s Ski Jumping in the 2010 Olympic Games. Quoting from page 38 of the decision, Madame Justice Fenlon wrote:

The FIS …has specifically stated that it has accepted the IOC’s decision with respect to women’s ski jumping; it has reiterated in the context of this litigation that the FIS is under the authority and instructions of the IOC; it says that the IOC determines the Olympic Programme and that it will not take instructions from VANOC in this regard.

Thirdly, as bluntly put by Madame Justice Fenlon, “it is most unlikely that the national Olympic committees would act contrary to the direction of the IOC” (p.39). In other words, they simply would not sanction the involvement of any competitors, should a women’s ski jumping event have been staged by VANOC.

None of these factors, in the view of Madame Justice Fenlon, were within the control, or ability, of VANOC to remedy.

In a subsequent statement, the IOC disputed the judge's conclusion stating: "We strongly disagree with the court's analysis. ... Our decision [not to include the women] was based on technical issues, without regard to gender." In her decision, Madame Justice Fenlon had found that the IOC had discriminated against women's ski jumping but not on the basis of the current criteria to admit an event onto the Olympic Programme, but rather, on the “grandfathering” of men’s ski jumping, even though it too did not meet the criteria.

Rule 47 of the Olympic Charter sets out criteria for inclusion of events in the Olympic programme. (While these criteria were deleted from the Olympic Charter in the course of changes made in 2006, the Court noted that the IOC continues to apply them in practice.) Rule 47 states, in part:

3.2 To be included in the programme of the Olympic Games, events must have a recognized international standing both numerically and internationally, and have been included at least twice in world or continental championships.

3.3 Only events practiced by men in at least fifty countries and on three continents, and by women in at least thirty-five countries and on three continents, may be included in the programme of the Olympic Games.

In evidence presented during the trial, it was the view of the IOC that women’s ski jumping lacked the universality required by Rule 47(3.3) to be placed on the Olympic Programme. Currently, 18 countries are active registrants with FIS in women’s ski jumping, representing 52% of the required number of countries. The Court noted, however, that men’s ski jumping also lacked the universality required by Rule 47(3.3) – 29 countries are active registrants with FIS in men’s ski jumping, representing 58% of the required number of countries. (Interestingly, it was reported by CBC News on July 10, 2009 that women’s snowboard cross has representation from 11 countries and bobsleigh has representation from 13 countries). The difference between men’s and women’s ski jumping was that in 1949, the IOC had put in place a rule limiting the exponential increase in the number of new Olympic events. That rule was the precursor to Rule 47 but is reflected in sub-section 4.4 of Rule 47 and reads:

47(4.4) Sports, disciplines or events included in the programme of the Olympic Games which no longer satisfy the criteria of this rule may nevertheless, in certain exceptional cases, may be maintained therein by decision of the IOC for the sake of the Olympic tradition.

The original rule and Rule 47(4.4) “grandfathered” events already part of the Olympic programme. The effect was that, as noted by the Court,  “…because men’s ski jumping events have historically been part of the Olympic Programme, the IOC did not subject [them] to its inclusion criteria. The women do not have the advantage of the Olympic tradition because of historical stereotyping and prejudice prevented women from participating in ski jumping in sufficient numbers by 1949 to be included in the Olympics. Rule 47(4.4) perpetuates the effect of that prejudice and is, therefore, discriminatory.”

In other words, while Rule 47(4.4) is not discriminatory on its face, the Court ruled its effect is discriminatory. The Court reviewed substantial evidence of the continuing difficulties for women to get the training and support needed to reach a world class level, and referred the fact that the FIS and its national members have not organized a sufficient number of high level competitions to enable women to meet the Olympic criteria under Rule 47.

The Court thus did not find the current criteria for entry onto the Olympic Programme to be discriminatory but, rather, the IOC’s application of the “Olympic tradition exception” to men’s ski jumping (in other words, men can participate in the 2010 Games even though they do not meet the current standard for inclusion because men’s ski jumping has traditionally been an Olympic event; women cannot participate in the 2010 Games because theirs is a new event and must, therefore, meet the criteria for the addition of an event to the Olympic Programme.)

Application of Canadian Charter of Rights and Freedoms (the Charter)

Before addressing the issue of discrimination, the Court first had to determine whether VANOC was subject to the Charter. In Canada, prohibitions against discrimination stem from the Charter and from human rights legislation.  In this case, the Skiers brought their lawsuit against VANOC alleging discrimination in violation of the Charter. If VANOC is not subject to the Charter, there can be no breach and that would be the end of the matter.

The Charter applies to matters of “government action”. Those legal entities that arise from government statute and are legally accountable to government are subject to the Charter. For example, municipal sport and recreation programs and facilities would come under the jurisdiction of the Charter. Privately-owned businesses, on the other hand, are typically not part of “government action” and thus are not subject to Charter provisions. This includes national and provincial sport governing bodies, which, while they may receive considerable government subsidies, are actually private organizations. However, if a private entity is either controlled by government or can be said to be carrying out a government programme or policy, it will be subject to the Charter.

VANOC was established (incorporated) once Vancouver was selected as the Host City for the 2010 Olympic Games. It is a private corporation charged with the task of planning, organizing and staging the Games. The question the Court had to answer was whether VANOC is subject to “routine or regular control” by government or is carrying out a government programme or policy. On the control issue the Court found that while the governments of Canada, British Columbia, Vancouver and Whistler are all significantly involved in VANOC, it falls short of the routine day-to-day control necessary to bring it within the jurisdiction of the Charter.  In making her determination, Madam Justice Fenlon reviewed three significant areas of control: governance, funding, and policy and operations.

On the second question, is the staging of the 2010 Olympic Games a government activity? The fact that an activity might be a “public” one is not necessarily sufficient to make it a government activity. While a government activity typically relates to implementation of a statutory scheme or government policy or programme, Madam Justice Fenlon went further, finding that the staging of the 2010 Olympic Games by VANOC was a government activity, thus bringing VANOC within the ambit of the Charter. She wrote at p. 22 of the decision:

The IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments. The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of the Olympic Games in Canada is, in my view, a rare but uniquely government activity.

In the end, although VANOC is subject to the Canadian Charter, and the Court found that the Skiers had suffered discrimination, the source of the discrimination was the IOC, which was beyond the reach of the Canadian court.

Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC), 2009 BCSC 942

Originally published: Centre for Sport and Law website (July 2009)

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