What's next in USWNT players' suit against U.S. Soccer

Anyone looking for a quick resolution to the pay discrimination lawsuit filed by 28 members of the U.S. women's national team against U.S. Soccer in U.S. District Court in Los Angeles on March 8 will be disappointed.

Mediation talks between the parties ended without a resolution on Wednesday afternoon.

Morgan v. U.S. Soccer: Players' Complaint | Federation's Answer

While the goal of mediation is to reach a settlement satisfactory to both parties and avoid lengthy and expensive litigation in court, it can also help move the parties forward by identifying areas of agreement and strengths and weaknesses of each party's legal positions. It can also accomplish a more basic goal -- improving communication across party lines.

Any sense that the parties were on the same wave length on some or all issues was not apparent from statements issued on Wednesday, first by the women and then by the federation:

Statement from Molly Levinson, a spokeswoman for the players:
“We entered this week’s mediation with representatives of USSF full of hope. Today we must conclude these meetings sorely disappointed in the federation’s determination to perpetuate fundamentally discriminatory workplace conditions and behavior.

"It is clear that USSF, including its board of directors and President Carlos Cordeiro, fully intend to continue to compensate women players less than men. They will not succeed. We want all of our fans, sponsors, peers around the world, and women everywhere to know we are undaunted and will eagerly look forward to a jury trial."

Statement from U.S. Soccer:
"We have said numerous times that our goal is to find a resolution, and during mediation we had hoped we would be able to address the issues in a respectful manner and reach an agreement.

"Unfortunately, instead of allowing mediation to proceed in a considerate manner, plaintiffs’ counsel took an aggressive and ultimately unproductive approach that follows months of presenting misleading information to the public in an effort to perpetuate confusion.

"We always know there is more we can do. We value our players, and have continually shown that, by providing them with compensation and support that exceeds any other women’s team in the world.

"Despite inflammatory statements from their spokesperson, which are intended to paint our actions inaccurately and unfairly, we are undaunted in our efforts to continue discussions in good faith."

Many moving parts. Given the complexity of the facts of the case, the various dynamics involved in the case and the multiple arenas in which the equal pay fight is taking place, it was hard to imagine that there would be a quick resolution.

-- Hope Solo, who is no longer a member of the women's national team, has a similar lawsuit filed against U.S. Soccer in a separate U.S. court in California.

-- Three different bills related to the case have been introduced in Congress. The Athletics Fair Pay Act Bill was introduced by Senators Dianne Feinstein (D-Calif.) and Patty Murray (D-Wash.). Sen. Joe Manchin (D-W.Va.) introduced a bill that would withhold federal funding for the 2026 World Cup, the USA will co-host with Canada and Mexico, if U.S. Soccer didn't pay the women’s and men’s teams equally, and Rep. Doris Matsui (D-Calif.) introduced similar legislation.

-- In the aftermath of the USA's repeat as world champion, players have been invited to appear on all the major talk shows and used the forums available to them to take their case to the American public. They've received the support of both U.S. Soccer sponsors and sponsors linked to the U.S. Women's National Team Players' Association.

-- The women have a collective bargaining agreement with U.S. Soccer that runs through 2021. The collective bargaining agreement men's national team players have with U.S. Soccer expired at the end of 2018. Any agreement on equal or equitable pay would have to be tied to new collective bargaining agreements for both teams.

-- In response to overwhelming support for the women in the media, U.S. Soccer responded with its side of the pay dispute, presenting an outline of its case to its members. Politico reported the federation went so far as to hire two Washington lobbying firms to tell its story to lawmakers and Democratic presidential candidates.

What's next. Attorneys for women's national team players and the federation are slated to appear in Federal court on Monday for a scheduling conference, where they will present their discovery plans and case schedules.

Basically, there's a month's difference in the schedules the women and the federation have proposed. In either case, the case would not go to a jury trial -- assuming there is no settlement -- until the end of 2020, after the Summer Olympics in Japan. (Nothing here applies to Solo's case, which is an entirely separate legal proceeding.)

USWNT attorneys. The women are represented by Jeffrey Kessler and other attorneys from law firm Winston & Strawn. The origin of the case is a suit filed by five players Kessler represented in 2016 before the EEOC, the federal agency that enforces civil rights laws against workplace discrimination.

Kessler is the same attorney who represented MLS players in an unsuccessful lawsuit against MLS and U.S. Soccer in the early years of the league, and he represents the NASL against U.S. Soccer and MLS in the antitrust suit going forward in U.S. District Court in Brooklyn. (Unable to get a temporary injunction on U.S. Soccer's decision to sanction the NASL as a Division 3 league, it did not go forward with its 2018 season.)

Kessler, whose expertise is in the area of antitrust law, summarized his practice by saying in an interview in 2016 that “I have consistently been involved in representing athletes in their struggle against owners that don’t recognize their rights and economic worth." (He's also won high-profile cases against the NCAA and IOC.)

(Years ago, Kessler represented the old NASL against the NFL in an antitrust suit seeking to have the NFL's cross-ownership ban lifted. The NASL won a permanent injunction on appeal in 1982 in a case that went all way to the Supreme Court, but by the time punitive damages were awarded -- all of $1, trebled to $3 -- the NASL was on the verge of collapse.)

U.S. Soccer attorneys.
  The federation is represented not by Latham & Watkins, its law firm for more than a quarter century, but by Seyfarth Shaw, known as a management-side law firm. All three attorneys of record in the case in Federal court are women.

Seyfarth Shaw has been involved in some of the most publicized labor disputes of the last half century, representing California growers against Cesar Chavez’s United Farm Workers in 1973, the Washington Post in a pressmen's strike in 1975-76, Newport News Shipbuilding against the United Steelworkers in 1979 and Yale University against clerical and technical workers seeking to unionize in 1984.

In recent years, Seyfarth Shaw's clients in workplace claims have included McDonald’s, hit by a large number of harassment lawsuits and complaints, and the Weinstein Company, which was dismissed earlier this year as a defendant in a federal racketeering lawsuit involving Harvey Weinstein.

10 comments about "What's next in USWNT players' suit against U.S. Soccer".
  1. Ginger Peeler, August 15, 2019 at 11:58 a.m.

    Seems to me that hiring two PR firms is indicative of 
    U.S. Soccer’s total lack of desire to compromise, despite their public statement. 

  2. Peter Bechtold replied, August 15, 2019 at 2:18 p.m.

    Logic ?
    Was it not the USWNT representatives (players, PR folks and others) who went public 3 months before the WC finals began ?

  3. Bob Ashpole replied, August 15, 2019 at 4:53 p.m.

    Peter, you have to be aware of the EEOC complaint and attendant press coverage in 2016. This isn't a dispute that started this year. 

    Claiming the filing of a Complaint as evidence that someone doesn't want to negotiate a resolution flies against all experience to the contrary. That would be like saying that filing an answer denying the Complaint is evidence that someone doens't want to negotiate.

    Given that Carlos has publicly admitted USSF discriminated in the past it is perplexing that USSF is defending the suit generally on the basis that 1) USSF didn't discriminate and that 2) it is impossible to divide a lump sump by the number of matches played to compare the actual pay rate of the women to the men.  

  4. Bob Ashpole, August 15, 2019 at 1:42 p.m.

    I question the 2nd paragraph of USSF press release. The Central District has very strong local rules that essentially make everything said or done during mediation confidential. The plaintiff's statement avoided telling what happened in the mediation. USSF talked about what plaintiff's counsel did. 

    I don't think the assigned judge or USSF's attorneys are going to like it at all. The assigned judge may have avoided seeing the press release, but he still won't like it. Trust me--everyone involved in the mediation knows the confidentiality rules in advance.

    http://www.cacd.uscourts.gov/sites/default/files/general-orders/GO-11-10_2.pdf See Sec. 9.

  5. Bob Ashpole replied, August 15, 2019 at 1:53 p.m.

    I might add that it is a dirty ploy. Ethically plaintiff's counsel cannot defend themselves, even to summarily deny the USSF allegation about what they did during the mediation.

    I wonder if whoever issued the press statement has ever dealt with a federal judge before?

  6. James Madison, August 15, 2019 at 2:47 p.m.

    As an experienced mediator who would have relished being selected by the parties to serve in this case, it strikes me that both press releases pushed the boundaries of mediation confidentiality.  My guess is that neither side was that interested in reaching a settlement at this stage.  If I were the mediator, I would stay in touch with the parties, and, with a year to go before trial, I think it more likely than not that, after tough negotiation, a settlement will emerge. The current CBA gives the parties a lot to build on. I would not be surprised if one of the WNT goals was to synch their CBA expiration dates with that for the men.

  7. Bob Ashpole replied, August 15, 2019 at 4:29 p.m.

    I agree that Plaintiff's statement "pushed the boundaries" but I think USSF crossed the boundary in the second paragraph. Given that the assigned Judge is not supposed to have any information about what happened in the mediation, the press release is a problem even if the judge doesn't read about it. 

    I agree with your assessment of the appropriateness of resolution by settlement. Apparently USSF has fallen in love with their own case. To me it is cut and dried. The facts are like a Title IX suit against a public university for not providing equal support of women's activities, where the public university tries to justify the discrimination by saying but "We make most of our revenue from men's football." As if they were running a for-profit business!

    The plaintiff's have won in one respect already. After the administrative action was filed, USSF started the girls DA--about a decade after they started a boys DA. Kind of difficult to defend that in court. 

  8. Bob Ashpole replied, August 15, 2019 at 5:05 p.m.

    In response to your last sentence, the men's representatives are trying to get USSF to agree to joint barganing, men and women. If I am recalling a recent press article correctly.

  9. Ric Fonseca, August 16, 2019 at 11:12 p.m.

    The law firm L & W, didn't a former USSF Prez work for them?  Also, for US Soccer to have selected another firm - S S - it seems they want a firm that has a strong anti-labor background.  Just reading the groups they've "worked" against tell me a lot. i.e. US Soccer doesn't seem too "willing" to do the right thing.  

  10. Bob Ashpole replied, August 17, 2019 at 8:31 a.m.

    It isn't unusual to hire a law firm that is experienced to handle litigation.

    What concerns me is the management priorties demonstrated by the decision to spend money on lobbiest and lawyers when the money is supposedly intended to promote amateur soccer, which is supposed to be the primary goal of the organization.

    A lot of people are focused on the professional game, but the professional game is not why US law recognizes USSF as the ruling body for soccer and not why a 20% minimum of USSF's board must by statute consist of amateur soccer players for USSF to maintain its legal status.

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