If you want the full hearing, here it is. Hooper, as expected lost, and you can read the final decision on page 29.
Perhaps a neutral arbitration hearing is what the TTFF and the players need ?
SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC)
CENTRE DE RÈGLEMENT DES DIFFÉRENDS SPORITFS DU CANADA (CRDSC)
No: SDRCC 07-0051 CHARMAINE HOOPER (“Hooper”)
CHRISTINE LATHAM (“Latham”)
SHAROLTA NONEN (“Nonen”)
(CLAIMANTS)
and
CANADIAN SOCCER ASSOCIATION
(“CSA”)
and
EVEN PELLERUD (“Pellerud”)
(RESPONDENTS)
REASONS FOR AWARD
Panel: John Welbourn, L.L.B., C.Arb., MCIArb.
Hearing: On May 29, 30, 31, and June 1, 2007 at suite 1600,
144 - 4 Avenue SW, Calgary, Alberta.
Counsel for the Claimants: Alan Ross, Esq.
Agent for the Claimants: Beth Stevenson
Counsel for CSA: Pasquale Santini, Esq.
Counsel for Pellerud: Barry Gibson, Q.C.
Witnesses for the Claimants: Christine Latham
Charmaine Hooper
Witnesses for CSA: None
Witnesses for Pellerud: * Even Pellerud
* Andrea Neil
* Amy Walsh
* Christine Sinclair
* Diana Matheson
* Les Meszaros
** Bob Lenarduzzi
* appeared by video conference from Auckland, New Zealand
** attended by telephone conference from Vancouver, British Columbia
2
Background:
The Claimants filed a Request for Arbitration with the SDRCC on February 16, 2007.
CSA filed its Answer on February 22, 2007 and Pellerud filed his Answer on February
21, 2007.
On March 19, 2007, the Claimants filed a Request with the SDRCC asking that a
jurisdictional arbitrator decide whether an arbitration agreement existed between the
parties. The jurisdictional arbitrator, Richard W. Pound, Q.C., issued his decision on
March 26, 2007 which stated the issue to be submitted to the Arbitrator for
determination, as agreed by the parties.
Further clarification of the issue was issued by the resolution facilitator, John P.
Sanderson, Q.C., on April 10, 2007.
The Arbitrator was notified of his appointment on April 13, 2007. Preliminary meetings
with Counsel were conducted by teleconference on April 17 and May 17, 2007. During
these preliminary meetings the following matters were agreed by the parties or
determined by the Arbitrator:
1. The dates of the hearing and the city in which the hearing would be conducted;
2. Disclosure and exchange of documents;
3. Disclosure of witnesses, including filing of Affidavits subject to notice of intention
to cross-examine on any such Affidavit;
4. All evidence would be given under oath or affirmation at the hearing;
5. Formal transcription of the evidence given at hearing.
Counsel for the Claimants filed the Affidavits of Laura M. Fedrigo, sworn November 28,
2006 and Pasquale Ruta sworn April 10, 2007. On May 17, 2007, Counsel for Pellerud
gave notice that Ms. Fedrigo and Mr. Ruta would be required for cross-examination on
their respective Affidavits.
Counsel for the CSA filed the Affidavit of Daniel Michelucci sworn May 10, 2007.
Preliminary Matters and Jurisdiction:
On commencing the hearing the parties agreed that:
1. The hearing room was satisfactory;
2. The Arbitrator has jurisdiction to consider the issue stated by jurisdictional
arbitrator Pound, as clarified by resolution facilitator Sanderson, and to issue a
written decision that will be final and binding on the parties;
3. All evidence will be given under oath or affirmation;
4. Non-party witnesses will be excluded from the hearing until asked to give
evidence. The exception of Beth Stevenson was agreed.
3
The Claimants had attempted to retain a court reporter to record the evidence but were
uncertain if one would attend. The proceedings were not recorded.
Issue:
As stated by jurisdictional arbitrator Pound, the issue to be determined is:
Whether the decisions made by Pellerud relating to the membership, carding and
funding of the Claimants were affected by any bias, conflict of interest, apparent
conflict of interest or improper motive?
The clarification stated by resolution facilitator Sanderson, as agreed by the parties, is
that the Arbitrator shall not have jurisdiction to order the reinstatement of the Claimants
to the Women’s National Team, or the reinstatement of Hooper as captain of the Team.
Exhibits:
As agreed, prior to the hearing each party filed all documents in its possession or
control which were relevant to the issue. All documents were agreed to be entered as
Exhibits to expedite the hearing, provided that correspondence, email and other
communications, while accepted as having been sent and received, were not accepted
as proof of the statements contained therein without direct evidence.
The Exhibits are:
Exhibit Description
1 Claimants’ documents - Pages 1 - 233
2 CSA documents - Tabbed 1 -15
3 Pellerud documents - Tabbed 1-202
The Affidavit of Laura M. Fedrigo is pages 223 and 224 of the Claimants’ documents.
The Affidavit of Pasquale Ruta comprises pages 226 - 231 of the Claimants’
documents. Although notice was given of the requirement for both individuals to attend
the hearing for cross-examination, neither person appeared. For the purpose of the
record, both Affidavits are entirely disregarded.
Facts and Evidence:
At all material times the Claimants were members of the Canadian Women’s National
Soccer Team (the “Team”). Hooper had been a member since 1986 and Latham since
2000. Nonen was a member of the Team from 1999 to 2004. She played in Denmark
in 2005. Nonen was invited to a Team training camp in January, 2006 and again
earned a position on the Team.
Pellerud has been a professional soccer coach since 1988. He has been employed
since 1999 by the CSA as the head coach of the Team. Initially he carried out his
duties from the CSA office in Toronto. In 2004, with the agreement of the CSA, he and
4
his wife moved to Vancouver in conjunction with the CSA’s move of the Team
operations to Vancouver.
Pellerud and his wife rent and live in a large home in West Vancouver owned by Greg
Kerfoot (“Kerfoot”). Kerfoot is the owner of the Vancouver Whitecaps soccer
organization which includes a women’s team that competes in the W-League.
In early 2006, Kerfoot agreed to make a substantial financial commitment to the CSA
(the “Kerfoot Funding”). The purpose was to allow selected Team players to be paid a
monthly salary so that they could train and play full-time without the need to otherwise
work. Kerfoot’s commitment commenced in approximately April, 2006 and is to
continue until the 2008 Beijing Olympics. This allows the players to devote full time and
attention to preparation and qualification for the World Cup and the Beijing Olympics.
Pellerud was to select the players, a maximum of 20, who would receive the Kerfoot
Funding - $20,000.00 per year to each player selected. Added to the funding available
through the Sport Canada carding program, a player would receive $38,000.00 to
$40,000.00 per year.
Pellerud’s office is in the CSA office in Vancouver. The CSA office and the Whitecaps’
office are separate but on the same floor, in the same building. Before the Whitecaps
and the CSA each moved to the current location, the CSA sublet or occupied space in
the Whitecaps’ office.
During a Team tour against NCAA schools in April, 2006, Team players were instructed
to read a draft agreement on Les Meszaros’ laptop computer. Mr. Meszaros
(“Meszaros”) is the Team manager. The document, entitled “New Direction - Player
Support” (the “Agreement”), had been written by Pellerud and was reviewed by each
player selected by Pellerud to receive Kerfoot Funding. Following the players’ review
and comment, some revisions were made to the Agreement. Shortly thereafter, the
selected players were invited to meet, one at a time, with Pellerud and Meszaros in the
lobby of the Team hotel. Hooper, Latham and Nonen were among those selected.
Each signed a copy of the Agreement on April 4, 2006. Pellerud also signed each copy.
Shortly thereafter, Hooper, Latham and Nonen each began receiving $1,667.00 per
month, before statutory deductions, from the CSA. This was the Kerfoot Funding.
The Agreement includes the following provisions:
You (the player) agree to report to any invitation to attend National team events.
This includes formal full camps as well as potential informal local/regional events.
The National team program will cover all flight expenses to and from approved
training locations.
The player will commit to sign up with a soccer environment/club environment
that enables her to maximize her potential as a player - a decision that will be
taken in close conjunction with EP. Relocation might be required.......
During late 2005 and early 2006, a second program was conceived for an extended
Team training camp in Vancouver from September to November, 2006 (the “Residential
Camp”). The length of the Residential Camp would be significantly longer than any
5
prior Team camp, and would involve the relocation of players living outside the greater
Vancouver area to Vancouver for the duration of the Residential Camp.
The Residential Camp was a topic of discussion and speculation among the players.
On August 1, 2006, Meszaros sent each Claimant an email which was copied to
Pellerud. The email reads:
You are one of the players invited to attend Residential Camp in Vancouver. At
this time we need you to confirm your move and participation in the program
leading up to Gold Cup this fall. Please confirm your commitment by August 6.
In order to proceed with our working to secure accommodations, etc., we will
need to have this in order by this date.
If confirmation not received on time, we will ask you to reconfirm (by August 8th)
explicitly stating that you are not attending.
The evidence regarding the Residential Camp, resulting decisions and events will be
reviewed later in these Reasons.
Another Team training camp and friendly matches were scheduled for Newfoundland
commencing August 15, 2006 (the”Newfoundland Camp”), following which the Team
would travel from Newfoundland to France on a competition tour. The Claimants were
invited to attend the Newfoundland Camp and tour. Each accepted the invitation. The
CSA arranged and paid for airline travel for each. None attended the Newfoundland
Camp or the tour.
The evidence regarding the players’ non-attendance will also be reviewed later in these
Reasons.
On August 31, 2006, Meszaros sent the following email to each of the Claimants:
In light of your last-second choice not to attend the Newfoundland and France
Camp/international games, and your lack of response to our request to you to
then attend the camp late, and your lack of commitment to the upcoming
residential camp in Vancouver, you have been immediately released from the
active player roster for the Women’s National Team.
All corresponding funding, directed by the CSA, associated with this program will
be discontinued.
None of the three has since been invited to participate in any Team training camp or
match. None has received any Kerfoot Funding since August, 2006.
Facts and Evidence particular to Latham:
Prior to 2006, Latham was a striker on the Team. In 2005 and 2006, the Team was
strong at the striker position, and Latham sensed that her position on the Team may be
in jeopardy. She was not invited to a Team training camp in January, 2006. In an email
to her dated December 24, 2005, Pellerud advised her that she had not been invited to
the camp due to her unsatisfactory performance level coming off the bench, her
6
disappointing reaction to his criticism, and that her “high maintanance (sic) factor will no
longer be tolerated”.
In a prior email to Pellerud dated October 5, 2005, Latham had suggested that she try
moving to the defender position. Pellerud agreed that the move might be a good idea.
In an exchange of emails and a telephone call in January, 2006, Pellerud and Latham
further discussed the possibility of her moving to defender and he agreed to give her an
opportunity to change positions. Pellerud advised Latham of his expectations of her in
practice, games, attitude and work ethic. He advised her that she would be required to
train, practise and play exclusively at the defender position while playing for the
University of Nebraska where she was attending school.
Pellerud discussed Latham’s move with the Nebraska team coach who confirmed that
he would co-operate fully in her transition from striker to defender. In turn, Latham
committed fully and without reservation to Pellerud’s expectations of her.
On January 27, 2006, Latham was notified of her selection for the Team for friendly
matches in Mexico from February 21 – 26, and Holland from February 26 to March 5,
2006. Latham participated in those Team training camps and games. In an email dated
March 22, 2006, Pellerud congratulated her on her excellent performance in camp,
games and her new approach.
In a series of emails between February 1 and 8, 2006, Pellerud and Latham discussed
her playing for the Atlanta Silverbacks in the W-League where Nonen was an assistant
coach and player. In an earlier email Latham had mentioned that she intended to play
W-League soccer during the 2006 season. Pellerud had approved her intention.
The W-League was described during the hearing as an amateur or semi-pro league.
The players are not paid a salary or wage, but are provided room and board, and travel
costs.
In the February 1 – 8 emails, Pellerud advised Latham that he no longer wanted her to
play W-League for Atlanta. He wanted her to move to Vancouver to train for her new
position as defender and play “W”, a reference to W-League and likely the Vancouver
Whitecaps, a W-League franchise. He suggested that she call Bob Lenarduzzi, the
Whitecaps President, and make a “good deal”.
Latham advised Pellerud that she had signed a contract to play for Atlanta. Pellerud
advised her to break the commitment. Latham discussed the matter with Laura Fedrigo,
the executive director of the Silverbacks, and was advised that the Silverbacks would
not allow her to do so. Latham so advised Pellerud and asked that he contact Fedrigo.
Pellerud and Fedrigo did eventually speak and discussed Latham’s move from striker to
defender and the need for her to practise and play full-time as a defender. Pellerud’s
evidence was that Fedrigo agreed to co-operate and ensure Latham did so.
Latham had not signed a contract with the Silverbacks. She had completed and
submitted a document entitled “2006 W-League Amateur Registration Form” dated
January 20, 2006. The document in evidence does not contain any commitment by
Latham to play for the Silverbacks or any W-League team. It is a form providing
personal information and a liability waiver to the W-League.
7
In the February 1 – 8 exchange of emails, Pellerud advised Latham that if she did not
move to Vancouver as he requested, her eligibility for full-time player funding (Kerfoot
Funding) could be in jeopardy. Latham’s evidence is that she felt threatened by this
statement. Further, she believed Pellerud was trying to recruit her to play for the
Whitecaps.
Latham did not move to Vancouver. She played a number of games for Atlanta during
the 2006 season. Of the games she played, not all were at the defender position.
Pellerud learned of this and spoke with the Silverbacks’ coach to inquire why Fedrigo’s
commitment had not been honoured. The coach advised him that Fedrigo’s
commitment was not his commitment and that as a coach, he had an obligation to the
team and franchise to play Latham where she would best help the team.
During the NCAA tour in April, 2006, Latham reviewed the draft Agreement on
Meszaros’ laptop computer. She subsequently met with Pellerud and Meszaros in the
lobby of the hotel where the Team was staying, and signed the Agreement. Her
evidence is that the words, “Relocation might be required.......” were added to the
document subsequent to her initial review of the draft Agreement.
Meszaros’ evidence is that there were a few cosmetic changes to the draft Agreement
following review by the players. However, the words “Relocation might be required”
were not added and were present when the players reviewed the draft Agreement on
the laptop.
Latham began receiving the Kerfoot Funding in April, 2006.
During the Spring 2006 NCAA tour, the players had a Team meeting. According to
Latham, the players agreed unanimously that none would commit to attending the
Residential Camp until they were satisfied with the arrangements for the Camp
including accommodation, transportation and facilities. These points were of particular
concern to those players not living in the greater Vancouver area.
By email from Meszaros sent August 1, 2006, the players were notified of the
Residential Camp dates. With respect to accommodation, transportation and facilities,
the email stated:
Housing and other issues as below:
- Housing: The most realistic plan at the moment is to rent some furnished
houses where you can have one room each. This will be either in the
downtown area or south in the White Rock/South Surrey.
- Most of the charge will come from our Team budget, so you will contribute
with a minor sum, about $200.00/month or so.
- Meals: You are on your own.
- Transportation: In Vancouver or Surrey, you are on your own – unless we
can secure some inexpensive vans. We will try to find solution.
- Health issues/treatments covered by CSA.
- Training facility/fitness centre/field costs and all other camps costs to be
covered by budget.
8
By email from Meszaros sent August 1, 2006, Latham was advised that she had been
selected to attend the Residential Camp and notified that she was required to confirm
her move to Vancouver and participation in the program by August 6. The email
contained the statement, “If confirmation not received on time, we will ask you to
reconfirm (by August 8th) explicitly stating that you are not attending.”
On August 1, 2006, Hooper sent the following email to the Team players:
Hey Team,
It seems as if we are being pressured into committing to do something none of us
know about. Please don’t feel pressured to do anything before it is time. As we
discussed a few weeks ago in Minneapolis, we would not agree to any terms set
forth by the coaching staff until a contract was written up. We will then, as a
team, along with the coaching staff, agree and all sign the proposed contract.
Until we know all the stipulations for the upcoming relocation, we are not
prepared to agree to any terms as a team. In a few days, a conference call will
be set up and all the info regarding the conference call will be sent out.
Remember, the relocation can’t go on with only a few people.
Would someone (Andi?) be prepared to relay info to Even regarding this because
at this time, I might just say all the wrong things to him out of anger.
On August 5, 2006, Latham sent the following email to the Team players:
Hey guys,
I am writing this as an addition to Charmaine’s email that she sent out a couple of
days ago regarding the location to Vancouver. As we all know, we agreed as a
team not to respond to Even’s email concerning the updated relocation
information. As of today, I have been informed that no one has responded
individually. However, if someone missed on the email, or got the email late and
did respond, please email me or Charmaine back immediately and let us know. I
am currently setting up a conference call for the team on Monday, and everyone
will get an email with information on how to get on that call. So please check
your email in the next day. Lastly, the additional information Even sent out was
not to the level of what we discussed as a team during the most recent training
camp and did not address our concerns. This is regarding everything from the
start date of camp, relocation, etc.... This will be addressed in the conference
call and we will move forward AS A TEAM in terms of response back to Even.
DO NOT BE PRESSURED TO REPLY INDIVIDUALLY IF HE CONTACTS YOU.
We are a team. We agreed to stayed together and stick to what we had decided
as a team. If we are going to get what is fair, and secure the future for the
players that will come after us, we must stay together 100%. This isn’t about
individual players. This is about the Canadian Women’s National Team and
getting the respect we deserve from our Federation and Even. I hope everyone
is doing well.
By email sent August 7, 2006 to Meszaros and copied to the Team players, Hooper
wrote:
9
Just wanted to send an email just explaining why the team has had a bit of a
delay in response to your email regarding relocation. I am assuming Andrea has
relayed a message to Even stating why the team was delaying. The team met a
few weeks ago to discuss some issues pertaining to the relocation. As a team,
we thought it would be a good idea to draw up a contract, which the team, along
with the coaching staff could come to an agreement on. Until we know all the
stipulations for the upcoming relocation, we are not prepared to agree to any
terms, as a team. We believe that this will be the best situation for the team and
in the end if everyone is happy, the players are able to be at their best mentally
and physically and the team can move forward in a positive environment and
positive direction. Thanks Les.
Meszaros responded to Hooper’s email the same day as follows:
Hi Charmaine,
Thanks for your note, sorry for the late response but I am out of town until
tomorrow night.
Not sure about your comments though as we have positive responses from most
players. We are just waiting for your response, Izzy, Latham and KK. I am
sending an individual email to yourselves tonight in which we will require a
response by tomorrow.
By email sent August 7, 2006, Meszaros wrote to Latham stating:
You have chosen not to commit to Residential Camp starting September 11.
You will now be asked to confirm your decision by Tuesday, August 8 – noon
(PTime). Not responding by that time counts as a confirmation on your decision
not to participate.
By deciding not to attend, you have violated the contract you signed with us in
April – thus terminating your involvement with the full-time player program.
By email sent August 8, 2006, Latham responded to Meszaros as follows:
there has been a lot of confusion concering the relocation and that questios have
not been answered... i am giving my ok for the relocation however i am not
agreeing to the terms as of yet... we will be meeting as a team in
newfoundland..... to finalize any unanswered questions. thanks.
Latham’s evidence is that she was dissatisfied with the lack of information in Meszaros’
email of August 1 regarding housing, transportation and facilities.
An email sent by Pellerud and Meszaros August 9, 2006 to all Team players, coaching
and support staff, and CSA representatives, including Anne Pellerud, Pellerud’s wife,
included the statement:
Unfortunately two players, Hooper and Latham, have failed to commit to this
program within time limits. At this point, their lack of full commitment to the
residency has also resulted in their release from the Full-Time Program.
10
At that point, Latham’s evidence is she was uncertain of her status on the Team.
Notwithstanding, she received an email airline ticket for her flight to the Newfoundland
Camp (commencing August 15). Latham did not attend the Camp, and did not notify
Meszaros or Pellerud that she would not be attending.
The evidence of Andrea Neil, a player representative, is that when Latham, Hooper and
Nonen did not show up in Newfoundland, the Team’s four player representatives met
with Pellerud and Meszaros. Pellerud left the decision up to the players whether
Latham, Hooper and Nonen would remain as Team members. The Team’s decision,
although angry and disappointed as a group, was to give the three 24 hours to travel to
Newfoundland. Three of the player representatives tried to telephone the three non-
attendees. Christine Sinclair was able to speak with Latham who, after discussion,
advised Sinclair in coarse terms that she would not be attending.
By email from Meszaros sent August 16, 2006, Latham, Hooper and Nonen were
advised:
Charmaine, Christine and Sharolta,
Your lack of attendance in Camp is unacceptable. Charmaine, we have
arranged for childcare for Charlie.
Please make your way to Camp today. Thanks.
By the previously-mentioned email sent August 31, 2006, Meszaros notified Latham she
was released from the Team and her funding discontinued.
Latham has not been invited to attend any Team training camp, game or other event
since.
On September 20, 2006, Latham emailed Pellerud advising in part:
I wanted you to know that I do feel bad about everything that has gone on. I
know that us not showing up for the trip cost you money and put you in a position
that wasn’t right. I accept responsibility for that and i apologize to you. I should
have come and met with you face to face to let you know if I had any problems,
and I realize now that the decision I made was the wrong one...
I also know that I feel that all of us need to get together and come to an
agreement on what we should do from here... We know that you have started
the camp already and would like to sit to a (sic) least sit down with you and the
team to talk all of this out.
Pellerud responded to Latham the following day by email as follows:
Christine,
Thank you for the letter.
11
I appreciate your apology, but I am not in position right now to say whether this
will change anything. Before more comments to your email, please answer this:
Is this email with apology and a request to see the team – on your behalf only, or
is this on behalf of all three players?
Latham responded the same day, as follows:
I can only apologize for myself... I am not speaking on behalf of the others
because I can’t do that, I can only admit when I am wrong and say that I am sorry
for myself ONLY.
Thanks for the quick reply.
Pellerud did not reply. On September 25, Latham again emailed Pellerud asking that he
contact her. Pellerud responded the following day, September 26, as follows:
Christine,
Sorry it took me some time to respond to your email below. I have taken my time
to discuss with and involve my staff and player reps in assessing your email.
The team’s united response is this:
The team (staff, coaches and player group) is still upset and in disbelief
following your decision not to attend camp in NF and France. Lack of
communication on your part (until recently) has definitely worsened that
situation. While the door to the team is not entirely closed, it is almost
certain that nothing will change at this time.
Facts and Evidence particular to Hooper:
Hooper is and was at all material times, married to Chuck Codd. They have a child,
Charlie. Until August 8, 2006, Chuck Codd was a coach with the Chicago Sockers
Soccer Club.
Since birth, Charlie has apparently accompanied Hooper to each Team camp and
match.
Hooper has been a vocal proponent for increased funding for the Team and had been
highly supportive of the Residential Camp concept since the fall of 2005.
Hooper played for the New Jersey Wildcats in the W-League for the 2006 season. By
May 31, 2006, she knew that Pellerud required her to play in a game against the U.S.
team in Cary, North Carolina in late July, 2006 (the “Cary Game”). The Cary Game
conflicted with a Wildcats playoff game against the Ottawa Fury also scheduled for the
same weekend.
Four or five Team players also played for the Ottawa Fury. Pellerud did not require
these players to participate in the Cary Game. In an exchange of emails on May 31,
2006, Hooper repeatedly asked Pellerud why the Ottawa players were to be recalled to
12
the Team for the Cary Game, while Hooper and another Team player also playing for
the Wildcats were required for the Cary Game. Pellerud responded to each of Hooper’s
emails but did not give Hooper an explanation why the Ottawa players were not recalled
for the Cary Game. She also asked to be allowed to remain with the Wildcats for the
game against Ottawa.
In an interview with a Canadian Press reporter while she was in Cary, Hooper criticized
the Ottawa players for not joining the Team for the Cary Game. Hooper’s evidence was
that the reporter had advised her that Pellerud had advised him that injury problems
precluded the Ottawa players from participating in the Cary Game. Pellerud’s evidence
is that he did not speak with the CP reporter until after Hooper’s interview when he was
asked to respond to Hooper’s comments.
At that time, Ottawa and New Jersey were both in the W-League playoffs. If both teams
won their semi-final matches, the two teams would then play each other with the winner
advancing to the W-League finals in Vancouver to be hosted by the Whitecaps. The
Whitecaps, as the host organization, had a bye directly to the finals.
Hooper’s evidence is that the Ottawa team was weaker than the New Jersey team.
By not allowing Hooper and her Wildcat team mate, Karina LeBlanc, to play for the
Wildcats, the Wildcats would be considerably weakened. In fact, the Fury defeated
the Wildcats and advanced to the W-League final in Vancouver.
Hooper alleges that Pellerud deliberately manipulated the outcome of the game by
recalling Hooper and LeBlanc from the Wildcats while not recalling the Fury players to
the Team for the Cary Game. Ottawa, a weaker team in Hooper’s view, won the game
and advanced to the W-League final in Vancouver which was ultimately won by the
Vancouver Whitecaps.
The Canadian Press article, published July 28, 2006, quotes Hooper as follows:
We (Hooper and LeBlanc) are not allowed to play in that game. The Ottawa
players are allowed to play in that game. You explain that.
Although unstated, an inference of match-fixing is made.
Pellerud’s evidence is that Team camps and matches have a profound effect on both
Vancouver and Ottawa, the two Canadian W-League franchises. Generally, these two
teams have the greatest number of Team players on their respective rosters. Recalling
players from both teams for Team camps and games, significantly reduces the
competitive strength of each team. In 2006, 12 - 14 Team members also played for the
Whitecaps, and 4 or 5 players for the Fury.
In Pellerud’s view, it is important that the Team maintain a good relationship with both
the Vancouver and Ottawa W-League organizations. In the fall of 2005, he asked both
how the Team could best work with them. Both advised that the greatest help would be
to not recall players to the Team when W-League games were scheduled. Pellerud’s
evidence is that he committed to both organizations that he would not recall players
from either W-League team to the Team when a conflicting W-League game was
scheduled. After receiving the W-League game schedule in late 2005, Pellerud then
13
scheduled Team camps and friendly matches around the W-League schedule so that
there would be no conflicts.
The Cary Game was arranged at a later date which did conflict with W-League playoff
dates. However, at that time neither Ottawa nor New Jersey knew whether it would be
involved in the W-League playoffs. By not recalling Ottawa players to the Cary Game,
Pellerud’s evidence is that he was honouring his commitment to the Ottawa
organization. He had not made any such commitment to the New Jersey organization
and had no obligation to allow Hooper and Karina LeBlanc to remain with the Wildcats
for the W-League playoff game against Ottawa.
Recalling Whitecaps players to the Team for the Cary Game was inconsequential. The
Whitecaps were hosting the W-League finals and had a bye to that tournament.
Accordingly, the removal of Team players from the Whitecaps’ roster for the Cary Game
could not have any impact on the Whitecaps’ participation in the W-League finals.
Pellerud absolutely denies any intent or attempt to manipulate the New Jersey – Ottawa
game. His evidence is that he had no interest in doing so and would not derive any
benefit in doing so.
Following the Cary Game, Hooper returned to her home in Chicago. On August 1, she
received Meszaros’ email of the same date regarding the Residential Camp. She
acknowledges sending the email to the Team dated August 1, 2006 urging unity among
the Team members. She acknowledges sending Meszaros the email dated August 5,
2006 and receiving his reply the same day.
Concurrently, Hooper, her husband and Charlie were scheduled to fly to Vancouver on
August 9, 2006. The purpose of the trip was to allow her husband, Chuck Codd, to
meet with the Vancouver Whitecaps. Hooper’s evidence is that to facilitate and
accommodate Hooper’s relocation to Vancouver for Residential Camp, Pellerud had
arranged a job for her husband with the Whitecaps organization.
Hooper’s evidence is that on the morning of August 9, 2006, she received five cell
phone calls from Meszaros. The initial call came while Hooper and her family were on
their way to the Chicago airport to catch their flight to Vancouver. Her evidence is that
Meszaros advised her that the Whitecaps organization was upset with her published
comments to the Canadian Press reporter and the inference that the Whitecaps through
Pellerud were engaged or complicit in manipulating W-League games to favour the
Ottawa team and ultimately the Whitecaps. The Whitecaps organization wanted an
apology from Hooper. Hooper refused to agree to make the apology and she advised
Meszaros that the matter could be addressed when she arrived in Vancouver. She
received four subsequent calls from Meszaros, each advising her that her apology was
required. The fourth came immediately before Hooper and her husband boarded the
plane. The fifth came when she and her family were seated on the plane, the doors
sealed and the plane apparently pushing back from the gate. In the final call, Meszaros
again advised her of the necessity for an apology. Hooper again declined at which point
Meszaros advised her not to come to Vancouver. As a result, Hooper had the plane
return to the gate and disembarked from the aircraft with her family. She and her family
were detained by airport security officials for an hour or more while their luggage was
removed from the aircraft. Hooper was upset and embarrassed by the situation.
14
Hooper believes Meszaros must have been communicating with the Whitecaps between
his calls to her.
Meszaros’ evidence is that he made four cell phone calls to Hooper that day. He
believed the Whitecaps organization was upset by Hooper’s statements to the Canadian
Press reporter. The same Whitecaps organization had earlier agreed to consider her
husband, Chuck Codd, for a coaching position. Hooper had created a difficult situation.
When Meszaros made the first call, he was surprised to learn that Hooper and her
family were just leaving their Chicago home on their way to the airport to travel to
Vancouver. He advised her that due to her media comments and the Whitecaps state
of mind, she should not come to Vancouver but defer the trip until after she returned
from the Newfoundland Camp and France tour. The call was short and ended with
Hooper asking him to call her back shortly.
He did so and the second call was quite a bit longer, during which he tried to help
Hooper understand that her media comments had created a difficult situation. Hooper
told him that both her mother and husband had also told her that the trip to Vancouver
was not a good idea at that time. Meszaros asked her whether she was coming to
Vancouver to apologize. She advised that she was not and again ended the call asking
Meszaros to call her back in a short while.
Meszaros called Hooper the third time and was surprised to learn that she and her
family were still on their way to the airport. Hooper once again ended the call asking
Meszaros to call back again.
When Meszaros called the fourth time he discovered that Hooper and her family were
sitting on the plane. He said, “So that means you’re going to apologize,” or words to
that effect. She replied “No”. At that point, Meszaros said to her, “Charmaine, get off
the plane.” At this point, the final call terminated.
Meszaros’ evidence is that he was not in contact with the Whitecaps before or during
this series of calls.
Pellerud’s evidence is that to facilitate Hooper’s move to Vancouver for the Residential
Camp, he had asked the Whitecaps organization about the possibility of a position for
Chuck Codd with the Whitecaps. The Whitecaps were open to the idea but were not
familiar with Mr. Codd, his experience or coaching abilities. Pellerud did not tell or
promise Hooper that her husband was guaranteed a job with the Whitecaps
organization if he came to Vancouver.
Pellerud arranged, at Team expense, for Codd, Hooper and Charlie to come to
Vancouver. The purpose was to provide an opportunity for the Whitecaps to interview
Codd and to observe his performance as coach during a number of Whitecaps practice
sessions specifically arranged for Codd. This is corroborated by an email dated August
1, 2006 from Pellerud to Dan Lenarduzzi and by the evidence of Bob Lenarduzzi.
With respect to the Residential Camp and Hooper’s commitment to attend, Hooper
received the same email invitation dated August 1, 2006 from Meszaros as Latham
received. She acknowledges sending the August 5 email.
15
In evidence are a series of emails sent August 7 and 8, 2006 between Meszaros and
Hooper. Two of those emails have been set out earlier in these Reasons. Hooper
received the same email dated August 7, 2006 from Meszaros as Latham received and
which is noted previously.
Hooper responded on August 8, 2006, as follows:
Hi Les,
As I had emailed before, I am not committing to anything until Chuck and I have
been to Vancouver. Until then, the answer is no. If not committing by Aug. 8
terminates my involvement in the program, then that is the way it will be.
charmaine
Meszaros responded later that day as follows:
Charmaine,
We have two distinct issues. One, will you commit to coming here for residency
and train for the Gold Cup. The second is we are trying to see if we can get the
whole family out here, to make it the most comfortable for you.
I understand not responding to the second one.
We are asking you to commit to the following timelines:
- Phase 1: September 11 through October 5, the weekend of September 23
and 24 is free
- October 6 through 15 are free days, with individual training programs
- Phase 2: Camp resumes October 16 and goes through November 5. The
weekend of October 28 and 29 is free. November 4 through 12 are free
days, with individual training programs
- Phase 3: Camp resumes November 13 through 16
- Phase 4: Team building activities November 16 through 19 (open for
ideas)
- Phase 5: Gold Cup in California - 19 through 26
During this timeline we will look after your housing and ask that you contribute
$200.00/month towards this. You will look after your own meals and
transportation.
You also have our commitment that if we can do more, we will.
Thanks, Les.
Hooper responded to Meszaros later that day as follows:
Should things work out I will move out to Vancouver to train for Gold Cup.
Thanks Les.
Charmaine.
16
The final email is from Meszaros to Hooper sent August 8, 2006 which states:
Charmaine,
Not sure what you mean by “should things work out”. Can you please be clear in
your response, I need your clear commitment. It’s important for our planning and
for the team to have you do that.
Thanks, Les.
To which Hooper replied:
Should the proposal be suitable, I will move to Vancouver.
Charmaine.
The following day, August 9, 2006, Hooper received the same email from Meszaros as
Latham received, and which was copied to the Team players, coaching and support
staff, and CSA personnel.
With respect to the Newfoundland Camp, Hooper received an email airline ticket for
her airline transportation to Newfoundland, but did not attend the Newfoundland
Camp. She received the same email dated August 16, 2006 from Meszaros as
Latham received.
Diana Matheson, one of the Team player representatives, also played for the Ottawa
Fury during the 2006 season. She was one of the Ottawa players not recalled by
Pellerud to the Team for the Cary Game. Her evidence is that a day or two before
Hooper’s comments to the Canadian Press reporter, she had been told by her Ottawa
coach that there was an agreement between Pellerud and the Fury owner, made many
months before, not to recall Fury players to the Team from conflicting Fury games.
Andrea Neil in her evidence confirmed that the phrase “Relocation might be
required.....”, was in the draft Agreement when she reviewed it on the laptop computer.
She also confirmed the meeting of the player representatives with Pellerud and
Meszaros when the Claimants didn’t attend the Newfoundland Camp, and the player
meeting and the Team’s decision to give the three a final chance to attend. Neil
attempted to contact Hooper by telephone and left a message for her to call which
Hooper did not return.
Hooper subsequently received an identical August 31 email from Meszaros as Latham
received advising that she had been released from the active player roster and the
reasons for that release.
By email dated September 5, 2006, Hooper confirmed to Pellerud that she had received
the email from Meszaros of August 31. She asked where Pellerud, as coach, stood on
the decision and requested his official response as to whether she was on the Team or
released. Pellerud responded by email the following day as follows:
17
Charmaine,
This is the feedback from the player reps at this time:
No decision will be taken until the whole team comes together next week here in
residency camp. We will let you know when a discussion has taken place and a
team decision is called.
At some time subsequent to Pellerud’s email of September 6, he and Hooper spoke by
telephone. They discussed the events leading to the August 31, 2006 email advising of
her release from the Team. Hooper wanted to know what she needed to do to be
reinstated to the Team. Pellerud advised her that the process would start with her
making an apology to the Team. She then composed and sent an email on September
26, 2006 to Pellerud and Andrea Neil, one of the player representatives. On September
28, Andrea Neil forwarded Hooper’s email to the Team, as follows:
To The Team
You guys are probably wondering why I’m sending this email at this time. Well,
from since back at the beginning of the month when Even returned from his trip,
we had come to a decision that we would come to meet with the team and
apologize. I assumed that was the plan but obviously that is not the way it seems
to be going so I just wanted to send this message to try to touch base with the
team.
All along, I have been in touch with Even, discussing the events and actions of
the past. Events and actions that if could have been changed would have been
changed. I am deeply sorry at my decision not to attend the last trips. At the time,
I was very, very hurt and angry at the way me and my family were treated when
told we would travel to Vancouver to look at the situation for Chuck. We were
actually sitting on the plane to fly out to Vancouver when I got a call saying not to
come at the time. We got off the plane only to be detained by security. What
made the situation even worse was the receiving an email saying that I was off
the full time player program because of not committing. I think that the timing all
around was not the best and unfortunately the trip was a few days later and I was
still very upset about the way the situation was handled. Unfortunately, for every
action there is a reaction and my reaction was not to attend.
I feel very badly for Christine and Sharolta who actually felt badly for me and the
situation with me and my family and also the situation whereby I had sent the
email to Les on behalf of the team but got no response from anyone. Because
Christine and Sharolta were upset for me and my scenario, they reacted the way
they did. Again, that obviously was not the best decision for them, not to attend,
in the end.
Since the smoke has cleared, I have realized that obviously not attending the trip
was not the correct decision and if I could have gone back to do it again, I most
definitely would have listened to my husband and attended the bloody trip. At this
time, what’s done is done and again, I understand I let you guys down and I
would like to make the biggest effort to regain the team’s trust.
18
At the same time, please realize that there is so much more to life than this event
that has soured the team. Everyone of us is very privileged to have their health
(for the most part at least), we are able to wake up everyday and enjoy what life
has to offer, we are able to enjoy the sport we love and enjoy the camaraderie
we develop along the way. I know over the years we all have developed
relationships as team mates. For myself it has been very good relationships for
the most part. I would hate for an incident or reaction, which turned out to be
wrong, to squash what we as comrades and team mates have fought and
sweated for over the years.
I’m sure we have all made mistakes at some point in our lives, as we are all
human. I feel badly that the team feels the way they do but we all have to find
some way to feel better about the situation. I fully understand that everyone is
upset about what has gone on but I feel there has to be a healing point so if it is
going to take everyone venting their anger and frustrations at us, then so be it.
Maybe we would have to go butts up in the goal and carry the equipment
everyday for two months. I am definitely open to whatever it is going to take for
the team to feel better about the events of the past.
Sorry that this has been a little long winded. I would appreciate it if you could just
relay this message to the team.
Charmaine
On October 1, 2006, Pellerud sent the following email to Hooper:
Dear Charmaine,
Your letter of apology has been read and discussed here in camp – players as
well as staff has been made aware of this process. Nothing is hidden, and all
questions linked to your email are answered within the team environment here in
camp. The team appreciates your apology.
Although emotions and feelings of bitterness is scaling down among team
members, the team here in Residency camp has created a team environment
and team chemistry which to some extent has been reinforced by the events that
took place in August and also earlier this year.
The team has taken the decision that the current group of athletes will stay
together and maintain its focus on the daily training sessions and the upcoming
events leading up to Gold cup, rather than restart an energy tapping process
which could be the case if your proposal came through.
Thus, the decision I sent on behalf of the team earlier, remains in effect. For
now, the team will focus on its performance in camp and Gold cup only.
As always, I am always ready to answer your questions and your conserns (sic).
On October 2, 2006, Hooper responded to Pellerud by email as follows:
19
Even, well, at this time, I am a little surprised at the reactions and find it hard to
believe the team is willing to go on like this from here. Anyway, let me know if
anything changes from here.
Charmaine.
Facts and Evidence particular to Nonen:
Nonen did not give evidence and was not called upon to do so.
In addition to the general facts previously stated relating to her, Nonen did not attend
the Newfoundland Camp, although invited.
Amy Walsh attempted to contact Nonen by telephone from the Newfoundland Camp.
She left a message for Nonen to call. Nonen did not. Nonen was sent the same
emails from Meszaros as Latham and Hooper received, advising her that she had
been terminated from the full-time player funding (Kerfoot Funding) and later released
from the Team for failure to commit to the Residential Camp and failure to attend the
Newfoundland Camp.
Pellerud’s evidence, in addition to that previously noted, dealt with his relationship with
Kerfoot and the Whitecaps organization. He states that he does not have a close
relationship with Kerfoot. He pays monthly rent to Kerfoot of $1,500.00. The home is
substantial and located in West Vancouver. When Pellerud and his wife originally
moved to Vancouver, Kerfoot offered to rent them the home for one year. The
understanding was that Kerfoot intended to build a new home on that property
thereafter. Subsequently, Kerfoot changed his mind about building a new home. As a
result, Pellerud and his wife continued to reside there.
Pellerud does not consider Kerfoot a friend, rather a business acquaintance, someone
he sees infrequently. He knows Kerfoot to be a generous man, passionate about
soccer. Although Kerfoot’s current residence is only a few doors down from Pellerud’s,
he cannot recall any instance when Kerfoot has come into his home.
With respect to the Vancouver Whitecaps organization, Pellerud’s evidence is that the
close relationship he has with the Whitecaps and staff is entirely natural. Many of the
Team players also play for the Whitecaps, specific Whitecaps coaches are assistant
Team coaches and the team office is located on the same floor in the same building in
Vancouver at the Whitecaps’ office. Further, he and the Whitecaps share a common
goal to promote and develop soccer not only in Vancouver but throughout Canada.
In cross-examination, Pellerud acknowledged that he has publicly promoted and
supported the Whitecaps’ proposal of the development of a championship soccer
facility on land controlled by Kerfoot on or close to the Vancouver waterfront. He
added that he has and will always promote and support the development of elite
soccer venues in Canada. Pellerud was not aware of a condominium complex to be
developed adjacent to the proposed new soccer facility, also proposed for
development by Kerfoot or through a Kerfoot-related venture.
20
Pellerud’s evidence is that he is not affiliated with the Whitecaps organization formally
or informally and does not receive any remuneration, compensation or benefit of any
type or description from the Vancouver Whitecaps.
When shown a photograph of himself with a medal around his neck with the Whitecaps
team, apparently taken immediately following the Whitecaps’ win in the 2006 W-League
finals, his evidence was that he does not recall the photograph having been taken. He
further stated that he does not believe that he has ever refused when asked to have a
photograph taken.
Pellerud categorically denies any pressure or contact from any person in the Whitecaps
to take action against Hooper for her comments.
Bob Lenarduzzi confirmed that Pellerud does not have any official or unofficial position
with, or duties to the Whitecaps organization, nor does Pellerud receive any
compensation, remuneration or benefit of any description from the Vancouver
Whitecaps. He also categorically denies that the Whitecaps in any fashion encouraged
Pellerud to deal with Hooper in any way. He acknowledged that the Whitecaps were
“not happy” with Hooper’s media comments.
Mr. Lenarduzzi confirmed that the number of Team players also playing for the
Whitecaps has been a considerable problem for the Whitecaps. When players are
fulfilling their Team play and travel commitments, those players are not available to the
Whitecaps. This substantially reduces the Whitecaps strength and competitiveness. As
a result, the Whitecaps are required to carry significantly more players on their roster
than other teams. Further, these facts are equally applicable to the Ottawa Fury
organization, although to a lesser degree because the Fury has fewer Team players on
its roster.
Finally, Mr. Lenarduzzi confirmed that Pellerud is as fully supportive of the Whitecaps’
proposed new soccer venue in Vancouver as he is of any championship soccer venue
in Canada, including the new facility in Toronto.
In a passing comment in cross-examination, Mr. Lenarduzzi was not certain that he had
seen the photograph of Pellerud wearing a medal with the Whitecaps W-League
championship team. His comment was that had the Ottawa Fury won the
championship, he would not have been surprised to see Pellerud wearing a medal in a
photograph with the Ottawa team.
Argument:
The Claimants submit that Pellerud’s decisions that affected them were not fair. Those
decisions were prompted by Pellerud’s bias, conflict of interest, apparent conflict of
interest or improper motive.
With respect to bias, Counsel made reference to Administrative Law, Jones & de Villars,
2004, at page 366 where it is stated:
The second principle of natural justice is sometimes referred to as the rule
against bias. The rule, in its simplest form, is that decision-makers must base
21
their decisions and must be seen to be basing their decisions, on nothing but the
relevant law and the evidence that is properly before them. The integrity of our
system of administrative adjudication depends on the exclusion of extraneous
factors such as the self-interest or the prejudices of decision-makers from the
considerations that are brought to bear on decisions and the rule is designed to
preserve public confidence in the system’s impartiality.
From page 371 of the same text, the following words of Justice de Grandpré are noted:
The proper test to be applied in a matter of this type was correctly expressed by
the Court of Appeal. As already seen by the quotation above, the apprehension
of bias must be a reasonable one held by reasonable and right-minded persons,
applying themselves to the question and obtaining thereon the required
information. In the words of the Court of Appeal, that test is “what would a (sic)
informed person, viewing the matter realistically and practically – in having
thought the matter through – conclude. Would he think that it is more likely than
not that Mr. Crowe, whether consciously or unconsciously, would not decide
fairly.”
That is to say, the question of whether Pellerud was biased in his decisions must be
viewed and determined objectively based upon the proper evidence available. Those
decisions viewed subjectively from each Claimant’s individual perspective, are not
relevant.
Further, at page 381 of the text, the authors state that:
Comments or other behaviour on the part of the decision-maker that are
inconsistent with that individual as being perceived by reasonable people as
impartial will result in the disqualification of the decision-maker.
Finally, the Claimants submit a unnamed dictionary definition of “bias” which apparently
states that, “bias is a partiality that prevents objective consideration of an issue or
situation and is dealt with in an unfair way.”
Counsel for the Claimants submits that Pellerud was a decision-maker. He drafted the
Agreement between himself and the players. In so doing he assumed a new role, that
of administrator. Four months later he became the adjudicator of the Agreement when
he terminated each of the Claimants from the Kerfoot Funding program. In doing so, he
was automatically biased and therefore should have deferred to an outside party, the
decision on each of the Claimant’s continuing to receive Kerfoot Funding.
With respect to the submission of conflict of interest or apparent conflict of interest, the
Claimants refer to section 6(3) of the CSA Constitution which states:
Private interests shall not provide the potential for or the appearance of an
opportunity to benefit, wrongdoing or unethical conduct. It is important to
emphasis (sic) that conflict of interest relates to the potential of wrongdoing as
well as to actual or intended wrongdoing.
Reference is also made to an article entitled “Ethics and Conflict of Interest” by Michael
MacDonald in a publication of the W. Maurice Young Centre for Applied Ethics of the
22
University of British Columbia. The author defines a conflict of interest as “a situation in
which a person, such as a public official, employee, or professional has a private or
personal interest sufficient to appear to influence the objective exercise of his or her
official duties.”
The Claimants point to the following facts as indicia of Pellerud’s conflict, actual or
apparent, of interest, namely:
1. The monthly rent of $1,500.00 Pell
