International sport/Canadian values: what if they collide?

• Author: Findlay, Hilary A.
• Position: Special Report: The Law and Sports

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... sport is a highly regulated and structured international activity and often has to be carried out within the rules of international organizations.

Is Canada not the keeper of its own national house? Well, maybe not! The 2010 Olympic and Paralympic Winter Games in Vancouver/Whistler provides a unique window through which to view the impact that international sport bodies can have on Canadian laws and policies, particularly where international decisions conflict with our national laws and values. The Games showed how the Canadian legal system can find itself without recourse to intervene where such decisions run contrary to Canadian laws, and where national sport organizations can find themselves in intractable circumstances. This article examines two Canadian sport cases that led to results inconsistent with important Canadian values.

Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC), (1) captured headlines leading up to the 2010 Winter Olympic Games, putting into question the inclusion of any ski jumping events--male or female. In this case, a group of 15 female ski jumpers challenged the International Olympic Committee's (IOC) decision not to include women's ski jumping in the 2010 Olympic program. The trial court found that the IOC's decision to include only ski jumping events for men was discriminatory.

The source of the discrimination, the court said, was historically rooted in a 1949 decision by the IOC. At that time, the number of Olympic sports was expanding rapidly and needed to be controlled. In response, the IOC established selection criteria to determine which sports would be part of the Olympic program. At the same time, the IOC decided that those sports already on the program would not have to meet the newly-established criteria. In other words, they were 'grandfathered'. Men's ski jumping was among this grandfathered group and thus was not subjected to the selection criteria, and never has been since then. Indeed, it would not satisfy such criteria even today.

However, notwithstanding a finding of discrimination under Canadian law, both the trial and appeal levels of court concluded that control over the decision of what sports to include in the Olympic program rested solely with the IOC and was beyond the reach of a Canadian court to intervene. The decision was perplexing to many. How could something that was discriminatory under Canadian law, and which...