The Legal Blitz Feature: Civil Rights Implications of FIFA’s…

In a questionable 2007 decision, international soccer organization FIFA banned the wearing of hijabs by Islamic women players during matches.  The ban of the traditional headscarf, which is often required of Muslim women, affected their right to play the sport.  Last week, FIFA finally voted to lift the ban after much protest.

Reports surfaced at one point of an alternative cap, but it has drawn some opposition because it does not fully cover the neck, as hijabs traditionally do.  Some teams have tried to use other garments to cover their necks, but there has been great push-back from officials. During the ban, multiple women’s soccer teams were forced to forfeit their matches; most notably, the Iranian women’s soccer team were asked to remove their turtlenecks during a match but refused, and were subsequently forced to forfeit their 2012 Olympic qualifying match.

Of course, no league intentionally stands in the way of an athlete’s ability to practice religion. Nevertheless, this ban effectively restricted access to the game for many Islamic women.  Professor Linda Sheryl Greene is the Evjue Bascom Professor at the University of Wisconsin Law School and this academic year is also the Distinguished Inaugural Lee Chair in Constitutional Law at the John Marshall Law School, Chicago.

She is a former track and field athlete, a founding board member of the Black Women in Sport Foundation, a former member of the University of Wisconsin Athletic Board, past Chair of the United States Olympic Committee Legislation as well as past Vice Chair of its Audit Committee. She is a member of the Black Sports Scholars Roundtable. Her forthcoming article in the Wake Forest Journal of Law and Policy addresses racial discrimination in the selection of NCAA and NFL head coaches.

1.  Under American laws, would FIFA’s ban on hijabs qualify as an unconstitutional restriction on freedom of religion rights under the First Amendment, even though the motive seemed to be purely for safety?

The First Amendment restricts the federal government and the state. Because FIFA is not a government or a state the First Amendment guarantee of the “free exercise of religion” is inapplicable.

2.  Although the ban may have been viewed as facially neutral, the reality is that it restricted certain women from competing in FIFA events, though no men seem to have been affected.  Might this have other civil rights implications beyond the First Amendment, assuming again this were to fall under U.S. law?

Under traditional First Amendment law, if the federal government or a state government does an act that burdens the “free exercise of religion,” the state must justify that action by demonstrating that the government’s interest is a “compelling one” and that the policy that burden on religion is necessary to serve that interest. Unless the federal or state government compels the policy, the First Amendment is inapplicable. If local, state, or federal government imposes the limitation, such as the Department of Education or a local school board, courts will ask whether the policy was imposed to target religion in which case it would be presumptively unconstitutional, or whether the policy has the effect of burdening the exercise of religion, which would be the case if the policy bans women from wearing clothing required by their religion and forces women to choose to forgo their religion or the activity. Even though the First Amendment is not applicable, the doctrine provides a good model for FIFA and other sports governing bodies that address the participation of Muslim women in sport.  These bodies must ask whether their clothing requirements are necessary for safe participation in the sport. Sport clothing is sometimes related to performance and sometimes simply traditional wear designed to show off the body. Sports governing bodies must bring fresh nontraditional thinking to these clothing issues.

3.  Since FIFA is an international organization, what governing body (outside of the current internal committee meetings) has the power to dictate the legality of league regulations such as this?  Can the United Nations only provide guidance, without any actual enforcement? How are these issues of clothing likely to be resolved?

The United Nations is interested in the capacity of sport to contribute to peace as well as its capacity to contribute to the elimination of discrimination against women. Under UN auspices, in 2008, the International Working Group on Sport and Peace made recommendations to governments that included recommendations to broaden participation of women in sport in part to further the principles contained in the Convention on the Elimination of All Forms of Discrimination against Women.

International Olympic Committee (IOC), whose charter bans all forms of discrimination, could conceivably pressure sport governing bodies that adopt rules that effectively bar women from competition as well as nations that do not send women to the Olympics. Perhaps the IOC might threaten to exclude FIFA from the Olympic Games if the IOC concludes that FIFA is engaged in religious or gender discrimination. Human Rights Watch has asked the IOC to consider barring from Olympic competition countries that do not send women to the Olympic games. It might be path breaking for the IOC to recognize the intersection of religious and gender discrimination in this context and exclude nations that do not send women’s teams to the Olympics. I believe the matter will be resolved with an understanding that FIFA as well as national Olympic committees must make immediate efforts to end gender and religious discrimination. These efforts will prevent this issue from escalating to the point of a boycott against FIFA competition or a competition boycott against nations that preclude women’s participation in sport. The South African experience may be a cautionary tale for FIFA and certain nations. I would not be surprised to learn that there are on-going back channel discussion between FIFA, IOC leaders and certain National Olympic Committees about the effect of this matter on future international competition. The hijab controversy is just the tip of the iceberg. The larger issues involve full participation of women in domestic and international competition and the commitment of all nations to the norms of equality in the charters of international sport governing bodies as well as the IOC.

The rules of the governing bodies of sport, such as FIFA, require that competitors request exemptions from the national governing bodies, such as USA Soccer, and that unfavorable decisions be appealed to international government bodies. That happened recently in the case of the United States Muslim female weightlifter, Abdullah, who wished to compete in loose clothing and a hijab. USA Weightlifting followed existing rules and denied her an exemption. She then appealed to the International Weightlifting Federation, which decided to permit a “one piece full body tight fitted ‘unitard’ under the compulsory weightlifting costume.”

The effort to enlarge the participation of Muslim women who wish to dress modestly will require a team effort. Civil rights lawyers, religious experts, and sport professionals must work together to offer sport specific clothing accommodations respective of religious requirements that neither hamper nor advantage women. The Abdullah case is a great example of this sort of teamwork.

4.  Among its many tournaments, FIFA organizes the Women’s World Cup, the location of which varies each time (next is Canada in 2015).  If the event were to be held in a country where the hijab ban (or lifting of the ban) violates national laws, could the country’s government theoretically override FIFA regulations and require/prohibit/permit wearing of religious attire?

If a country requires or forbids the wearing of the hijab, and FIFA concludes that the policy is discriminatory against women, it should follow the course it took in connection with apartheid South Africa, banning those countries from participation in FIFA competition. But FIFA must be sensitive to the national politics involves as well as the possibility that Muslim women do not necessarily believe that a requirement to wear a hijab is gender discrimination and subordination. I applaud FIFA’s tentative decisions to permit the wearing of the hijab, and I think that FIFA will permanently permit women to be modestly attired consistent with safety. A different course would be too restrictive on female sports participation, and divisive in its national governing bodies. Countries like France that have banned the hijab may no longer be venues for international competition.

5.  What other similar religious clothing restrictions have surfaced in sports, foreign or domestic, and what was the outcome?

I have already mentioned the case of the Muslim female weightlifter Abdullah from the United States who wished to compete covered for modesty reasons. USA Weightlifting followed the International Weightlifting Federation IWF rules on clothing and denied her an exemption. Abdullah appealed, and in June 2011 the IWF decided to permit a “one piece full body tight fitted ‘unitard’ under the compulsory weightlifting costume.”  The effort to enlarge the participation of Muslim women who wish to dress modestly will require a team effort– excellent civil rights lawyers, religious leaders, and sport experts –who together may advise on the adoption of sport specific clothing accommodations consistent with religious requirements that neither hamper nor advantage Muslim women.

Kulsoom Abdullah competing at the USA weightlifting championships in June 2011

It is important to understand that the dispute about the hijab is just one issue among many relevant to the participation of Muslims—both men and women-in sport. The matter has been the subject of recent Muslim jurists’ fatwas (rulings on Islamic Law), and those rulings may offer a window into the future of sport participation by Muslims around the world.  Uriya Shavit and Ofir Winter recently published an excellent article on historical and contemporary fatwas entitled “Sport in Contemporary Islamic Law” in 20 Islamic Law and Society 250-280 (2011). Anyone interested in this issue should read the article.

6.  FIFA’s document, The Laws of the Game, states “[t]he basic compulsory equipment must not have any political, religious or personal statement.”  Does this enumerated policy perhaps make FIFA more vulnerable to lawsuit in this situation?  Might this rule have any other effect, such as being per se discriminatory, even beyond the hijab ban?

Whether FIFA is vulnerable to lawsuits will depend upon many factors including variations in domestic law. In other non-sport contexts, the European Court of Human Rights has upheld bans on the hijab.

Is the ban per se discriminatory against women? One could argue that it is not gender discrimination because some Muslim women may not choose the hijab and others may not feel obligated to wear it. And, if Muslim men who are ordinarily obligated to wear modest clothing must wear relatively immodest clothing during sports participation, some might argue that the clothing requirements equally burden both genders. But those arguments ignore the manner in which sport participation may open doors for women as well as the disproportionate disadvantage Muslim women may incur if they forgo modest clothing. Formal equality is not substantive equality. We must address these issues by taking into account the manner in which a requirement actually affects women differently than men.

FIFA’s March 3rd ruling to permit the hijab makes good sense on equality, sport, and religious grounds. Of course, sport is safer when players do not engage in provocative acts that distract from the sport or might taunt an opponent. The question is whether we should view the hijab as a political, religious, or personal statement that would be harmful to the game of soccer.  The purpose of the hijab to the woman who wears it is to preserve her modesty. When FIFA permits the hijab, it permits women to enjoy the benefits of sports participation as well as full citizenship and respect in their communities. This is a win-win situation.

7.  From a practical safety standpoint, is this really any different than an athlete such as Troy Polamalu, whose hair is a potentially dangerous extension of the uniform that theoretically makes him more prone to injury?

I can’t speak about whether Polamalu, whom I and many other people adore for both his play and his hair, or the many players of various backgrounds and great accomplishment who wear curls, dreads, or braids.  But Polamulu is more likely to suffer injury because he is so enthusiastic about his game. Seriously, though, safety is a legitimate concern unless it is an unthinking stereotypical generalization, or worse, a pretext for exclusion. After all, the international federations of rugby and taekwondo already permit the hijab.

Substantive equality is the paramount goal. Women should be able to enjoy the physical, health, social, economic, and empowerment benefits of competitive sport. The history of sport is replete with stated and unstated rules that have limited the participation of many groups including minorities and women. We are not far removed from the time when we believed that women were unsuited for certain professions and unable to compete at 26.2 miles. Let’s be honest. We’ve come a long way, but we have a long way to go before gender equality is a reality in sport.

8.  Part of FIFA’s reasoning for its original ban could have been construed to be selfish; the policy could have insulated FIFA against lawsuits where a competitor wearing a hijab is injured.  Since there is no apparent competitive advantage in wearing a headscarf, and in fact perhaps only an added danger, isn’t this really just an assumption of the risk for the athlete who elects to wear it and compete?

Assumption of risk of injury is a part of any sport, and I am pleased that FIFA did not rest on that ground. There are modified hijabs available of a wide range of fabrics that may be worn with little risk. FIFA should employ experts to design appropriate covering from which teams might choose and which are consistent with the desire of women competitors to remain modest while competitive. Also, FIFA should adopt rules to prohibit grabbing or using the hijab to inflict injury. These rules would be analogous to those in American football that prohibit a player from grabbing the facemask of an opponent or in football (soccer) in which grabbing the clothing of an opponent during a match is a cautionable offense and a possible foul. This is familiar ground. I am sure that FIFA will get it right in July.

Chris McAndrew also contributed to The Legal Blitz’s publication of this article.