SOCCER AMERICA: In May, the U.S. women's national team players filed a federal gender discrimination lawsuit against the U.S. Soccer Federation. What's the significance of the parties agreeing last Friday to mediation?
STEVEN BANK: It's significant in the sense that it means the parties are still talking. That means a settlement is possible, which is usually better for both parties. It doesn't necessarily mean, though, that a breakthrough is imminent. In the federal courts, judges often require the parties to go through mediation at the outset of the case to try to help them narrow the issues and to potentially avert a court case altogether. So, this might have happened anyway. That it happened voluntarily is a positive sign.
SA: Are either side's prospects improved by mediation?
STEVEN BANK: The mediator doesn't have the power to force the parties to settle or agree to anything, so even if the judge orders them to go through mediation, it wouldn't necessarily change anything. Mediation might, however, help both parties insofar as it allows them to settle the case before it is potentially merged with Hope Solo's case, which was separately filed in Northern California. It's not that the two parties couldn't settle if the cases were merged and Solo wanted to continue, but the parties might be able to better hone in on the key issues before the cases are combined.
SA: If the ruling goes in the favor of the U.S. women national team players, will that improve the working conditions of female soccer players in the USA in general?
STEVEN BANK: That's unclear. On the compensation side, it may have the opposite effect. Just paying a group of elite athletes more won't necessarily mean NWSL's pay for the next tier of players will improve. Indeed, if U.S. Soccer were to end the subsidy it pays to NWSL in the form of paying the salary for USWNT players in favor of a performance-based bonus system like the men have, then NWSL may lose those players to foreign leagues or it may cut the salaries of non-USWNT players to make up the difference.
On the non-compensation side, though, it might raise the bar for what are acceptable working conditions for female athletes, including field conditions, travel, and other issues. Moreover, the fact that the women have raised this issue in and out of the courts over the last several years may have created political and social pressure that will aid the working of conditions of female soccer players in the U.S. regardless of the outcome of the case.
SA: How receptive do you think the mediator will be to U.S. Soccer's defense that the discrepancies in pay between the men and the women are not based on gender but, are because of "differences in the aggregate revenue generated by the different teams" and fundamentally different working environments?
STEVEN BANK: The mediator's job isn't necessarily to decide who is right, but rather to help the parties see where they have common ground and to help them see potential solutions. The mediator may help the parties get an outside perspective, though, on the strengths and weaknesses of their case. For example, the mediator may help both parties understand the difficulty in establishing their revenue arguments as an evidentiary matter (in part because of things like the bundled media rights and allegations of inadequate marketing efforts).
SA: What about U.S. Soccer citing the timing of the men's and women's collective bargaining agreements? Can that be seen as a legitimate explanation?
STEVEN BANK: That is definitely part of the story for some of these issues. Because the collective bargaining agreements are on different schedules, the men and women typically "leapfrog" each other on issues such as the amount of per diem dollars allotted (which was cited in the 2016 EEOC complaint because the men got more than the women, but was omitted in the 2019 lawsuit because the women either got more than the men in their 2016 CBA or they started tying the two numbers together going forward). Other issues, however, are more fundamental and structural and don't appear to relate to the timing of the CBA's.
SA: What did you think of the Wall Street Journal article, published during this Women's World Cup, headlined "U.S. Women’s Soccer Games Outearned Men’s Games"? Were the figures reported in the article (game revenue in 2016-18) ones that could affect the lawsuit?
STEVEN BANK: I'm sure those numbers will be cited, but there are a couple of factors counting against their relevance in terms of significantly impacting the case.
First, the difference in the structure of compensation for the men (bonuses for play/performance only) and women (guaranteed salary, plus bonus) is a non-revenue distinction between their CBA's. Perhaps discovery will reveal that the women were forced to take the salary-based approach over the bonus-based approach because USSF didn't want to pay big bonuses to the more successful women, but it's not obvious to me that the women would have done better under a pure revenue approach.
If FIFA payouts for each World Cup are treated as separate revenue (which isn't mentioned in the Wall Street Journal article), that seems like it would be a bigger difference than individual game revenue over the period. Second, the game revenue seems secondary to the media rights and the WSJ article points out that the teams rights are bundled, which even a Fox executive concedes makes it hard to identify who generated the revenue. This is particularly true when media rights deals are typically long-term deals that cover highs and lows for individual teams.
SA: It seems that it's the World Cup bonuses where the difference in income between U.S. men's and women's national team players is most glaring. But isn't that a FIFA issue? Not U.S. Soccer's fault?
STEVEN BANK: It is a FIFA issue, but that doesn't mean U.S. Soccer is necessarily off the hook. U.S. Soccer theoretically could pool the amount paid to individual federations and use it to pay equal amounts to players of each team. That would seem to go against a pure revenue approach, though.
SA: What are the inequalities cited by the women's national team players that are most likely to help their case?
STEVEN BANK: The discrepancy in the number of games played on artificial turf and the amount of charter flights used for team travel could certainly help their case for gender discrimination, while the unequal marketing of their games could help their Equal Pay Act case if the revenue defense becomes important.
SA: Does the fact that U.S. Soccer helps bankroll the NWSL and pays the salaries of the league's top players, i.e., the women's national team players, help U.S. Soccer's case?
STEVEN BANK: U.S. Soccer's subsidization of NWSL could help the gender discrimination claim, insofar as there is an argument that the plaintiffs might not have had any place to play for a salary without it. The plaintiffs, however, could counter that U.S. Soccer also subsidizes Major League Soccer for the men and possibly to a much greater degree depending upon how you interpret the financial benefit to MLS owners from the grant of U.S. Soccer media rights to their separate Soccer United Marketing company.
SA: You mentioned on Kevin Flynn's Over The Ball podcast that "club salaries are the fundamental, underlying inequality." Can you elaborate on that and on how NWSL salaries could increase?
STEVEN BANK: My assumption (which could be incorrect) is that the men and women have different structural compensation arrangements because the women's club salaries are highly uncertain (no domestic women's league has survived very long) and would be very low if based solely on NWSL revenues and owner infusions of capital.
If club salaries for women increased to be on par at least with basic MLS salaries, then women might be free to negotiate a comparable bonus-only deal with U.S. Soccer. Stated more simply, the inequity in the U.S. Soccer compensation matters much more because of the inequity in club compensation.
One way to increase salaries is for sponsors to make a major commitment to NWSL, similar to what Barclay's recently announced for the English FA's Women's Super League. Another is for U.S. Soccer to include NWSL in the next media rights deal when the current one expires (I believe in 2022). A third is for U.S. Soccer to make a larger financial commitment to NWSL itself or to require men's leagues to invest in women's soccer as a condition of league sanctioning.
SA: Anything else you want to add about the women's case?
STEVEN BANK: There is an important question about allocation of resources in U.S Soccer. The lawsuit is a small sliver of that question, but people are treating it like it is the centerpiece. Ideally, it spurs this larger inquiry.
SA: I'd like to get your insight into a legal issue that's become important for youth soccer clubs. Can non-MLS youth clubs be hopeful that they'll start receiving training compensation and/or solidarity payments from foreign clubs?
STEVEN BANK: The FIFA Dispute Resolution Chamber's opinion in the Crossfire case regarding DeAndre Yedlin's move to Tottenham suggests that non-MLS clubs at least aren't barred under FIFA rules from receiving training compensation and/or solidarity payments. Whether it will happen depends upon (1) whether U.S. Soccer and its affiliates are adequately maintaining records for players not in the DA system (since most cases are lost in the DRC, much like the [Michael] Bradley and [Clint] Dempsey cases, because of inadequate record-keeping, and (2) whether the MLS player's union decides to challenge any actual attempt to charge training compensation or solidarity payments in a future case.
SA: What was the most important part of the FIFA Dispute Resolution Chamber decision regarding Crossfire Premier's case regarding DeAndre Yedlin as far as impacting other clubs' quests for compensation?
STEVEN BANK: For me, the most important part of the case in the U.S. was the rejection of Tottenham's defense that Crossfire couldn't be considered a training club because it was financed through fees and sponsorships rather than club investments.
SA: Anything else that's important to know about the quest of U.S. youth clubs for training compensation and solidarity payments?
STEVEN BANK: The obvious point is that this is far from a panacea for the pay-to-play problem in U.S. youth soccer because very few clubs develop players who go on to play professionally overseas. More importantly, though, this removes one of the price advantages to signing U.S. players. Training compensation isn't a huge cost, but it is enough of a cost that it might deter some foreign clubs from looking here. I expect some U.S. youth clubs will offer to waive training compensation as a result, recognizing that the amount of money they might lose would be outweighed by the financial benefit they would get by assembling top teams that induce paying parents to join their club.
SA: What's your soccer background?
STEVEN BANK: I started playing soccer at 4 years old and I've been playing at one level or another much of my life. I've been coaching AYSO since 2002, with the last five years on the girls side, refereeing since about 2011, and I was a board member for about three years. I also have served as a team administrator for club teams for two of my sons, spanning about 7 years over two different periods.
I got involved in the game largely because my oldest brother, who was in high school, brought me along with him to his games and practices and to semi-pro and pro games. Growing up in Cleveland, I remember going to Cleveland State games, Cleveland Cobra games (American Soccer League), and Cleveland Force games (Major Indoor Soccer League). Since coming to LA, we've been to just about everything, from U.S. women's and men's national team games, to MLS games, to UPSL games.
SA: What is it about soccer that intrigued you to the extent that you've made it part of your law school teaching?
STEVEN BANK: In part, my interest stems from my interest in the game itself, but in part it stems from my interest in the unique legal aspects of its organization and operation. It's international, it's multi-jurisdictional, it's primarily organized through non-profit entities, and, at least in the U.S., it has recently transitioned from a start-up phase to a growth phase and it has experienced growing pains along the way. All of this creates challenges that give students insight on a variety of aspects of law. Many of the lawsuits we've seen filed in the soccer industry lately are a product of these challenges and are part of the process of setting up the next transition from soccer as a growth industry to a mature one.