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.