Fact- and reality-checking the latest round of U.S. women's lawsuit statements and filings

• by Beau Dure  @duresport, Mar 11, 2020

A couple of court deadlines have come up in the U.S. women’s team’s lawsuit against U.S. Soccer, and this time, neither side let its court filings do all the talking. Each side released a couple of statements in addition to the volumes of legal documents that are quickly draining the resources of everyone involved except the lawyers.

U.S. Soccer isn’t likely to affect the narrative. Media and public sympathy tends to go with players over “management,” especially when those players are women. (We’re excluding the Neanderthals on Twitter and on comment threads who think women shouldn’t be paid anything because they lose to boys teams.)

A few checks on those statements and filings …

U.S. Soccer President Carlos Cordeiro: “In particular, we have offered to provide identical compensation to our women’s and men’s players for all matches controlled by U.S. Soccer.”

That’s difficult to quantify given the different structures at play here, but this lawsuit surely isn’t stuck on the calculations of pro-rating the women’s salaries to match the men’s bonus structure.

One key message here is “controlled by U.S. Soccer.” The Federation doesn’t control all matches. Whether that’s simply a reality or an excuse to give the Federation a way around its “identical compensation” is an argument with multiple sides.

Molly Levinson, speaking on behalf of the women’s team, said the Federation offer “(d)id not offer equal pay even for friendlies for the majority of players on the team who are on contract.” We’d need to see some charts to figure out what that means.

Cordeiro: “(T)hey have repeatedly declined our invitation to meet on the premise that our proposal does not include U.S. Soccer agreeing to make up the difference in future prize money awarded by FIFA for the Men’s and Women’s World Cup, a number that would be more than $34 million today.”

Cordeiro also says the women are seeking $66 million to compensate for the difference in prize money in the last two World Cups, which is mostly but not entirely accurate. By my calculation comparing the women’s actual pay with the men’s collective bargaining agreement, the difference is $48.2 million. Add in interest, which is included in the calculation from the WNT’s expert economist, and it’s still a very large portion of $66 million but not all of it.

Levinson’s statement doesn’t directly deny either Cordeiro accusation, nor has any players’ representative disputed the notion that World Cup bonuses are the major sticking point in negotiations, but she makes a couple of indirect points on those matters:

First, she says the Federation “(o)ffered nothing for the World Cup, choosing to perpetuate the discrimination that the entire world condemned in France.”

Second, she says the Federation “(e)mployed dishonest tactics by asking to speak to the players and their legal representatives in confidence, demanding confidential conversations, and then immediately leaking the conversations to the media using distorted information.” If true, that could be an alternative explanation for the reticence to meet, but I’d like to know what conversations were leaked and to whom.

Levinson has not yet responded to a request to elaborate on those two points.

Levinson: “(T)hey offered women players the men’s rates negotiated a decade ago with no commitment to match the new men’s deal going forward.”

This presumes the men would get a raise of some sort in their next deal. The men’s recent statement that the women should be paid more isn’t entirely altruistic on their part -- they know they can’t get a raise to make more than the women without generating more “The men can’t even qualify for the World Cup -- why should they get paid?” headlines.

Levinson: “(The Federation’s proposal) (i)ncluded the smallest number of games possible, designed to leave out all tournaments, including the SheBelieves Cup being held right now.”

A common complaint in social media is that the women have to play more games than the men to earn the money they earn. That complaint would only be relevant to salaried players. Any players who only get bonuses would only benefit from more games.

Cordeiro: “As a non-profit, member-based organization, U.S. Soccer has obligations to all of our members -- including 22 national teams, 113 members across the country and millions of players, coaches and referees at all levels. … (Equal World Cup bonuses) would seriously impair our ability to support our mission and invest in these other critical development areas.”

Judging by the response to this point on social media a couple of weeks ago, several media members inside and outside the women’s soccer community aren’t sympathetic.

U.S. Soccer (response to women’s motion for summary judgment): “Plaintiffs’ selective complaints about the WNT CBA ignore the fact that the CBA requires U.S. Soccer to pay a $100,000 annual salary to a minimum number of “WNT Contracted Players” each year.

They go on to point out that Mallory Pugh has been on salary even though she wasn’t on the Olympic qualifying roster and that Morgan Brian is still on salary through the end of March due to severance pay.

“Selective complaints” and “cherry-picking” are big components of the Federation’s arguments.

The number of players on salary is dropping under terms of the current CBA, but that shouldn’t be relevant in a discussion of back pay.

Throughout the talk of the women’s CBA, note that it applies only from 2017 onward.

U.S. Soccer: “The WNT CBA also requires U.S. Soccer to pay the WNT’s union: (i) $350,000 annually for the right to use WNT players’ likenesses in certain ways, (ii) sell-out and enhanced attendance bonuses based on certain levels of paid attendance at home friendlies; (iii) bonuses for improved television ratings; and (iv) bonuses based on achieving certain levels of revenue from sponsorships. … There are no such payments in the MNT CBA.”

No, but paragraph 6(e) requires payments to the players’ association for certain uses of player likenesses, and the PA has the right to do an annual audit of royalties. The WNT won some commercial rights under its 2017 CBA; it’s a good bet the MNT will want the same in its next deal to replace the one that expired at the end of 2018.

And “certain levels of paid attendance” is hair-splitting -- the men receive a per-ticket bonus, just as the women do.

The ratings and sponsorship bonuses, the latter explicitly tied to Soccer United Marketing, are indeed novelties of the WNT CBA (Article 19).

U.S. Soccer: “Under Plaintiffs’ own theory of the case, U.S. Soccer is somehow engaged in sex-based pay discrimination against the WNT and the MNT at the very same time!

This refers to the declaration of Columbia University Law School labor economist Justin McCrary. Columbia has had an out-sized influence on U.S. Soccer -- while Columbia lecturer Sunil Gulati was president, Columbia trustee Lisa Carnoy was named an independent director on the USSF board.

McCrary’s math shows that the MNT would have received more compensation than if they were playing under the WNT’s CBA. While it’s difficult to do a lot of apples-to-apples comparisons, he uses a bunch of averages to show that the women would receive about the same money as the men over a year with 16 friendlies (the average number played by the women per year) and far more if they played only eight (the average number played by the men).

Also, McCrary notes that players who were under contract but weren’t called in make considerably more than men who aren’t called in, but it’s pretty easy to conclude that any number is bigger than $0.

U.S. Soccer: “WNT and MNT Players Do Not Perform Equal Work Requiring Equal Skill, Effort, and Responsibility Under Similar Working Conditions”

At least from a PR perspective, this is clumsy wording, and grilling Carli Lloyd about whether the WNT could beat a team of 16- or 17-year-old boys just doesn’t look good. No reasonable person would accuse Lloyd of putting in less “effort” than an MNT player. Steven Bank, one of the soccer community’s go-to authorities on legal matters, had a thread last month (that he has re-posted) explaining why the Federation may win in court with this argument but suffers in public.

But the “similar working conditions” part is empirically true. The Federation argues that the MNT must play World Cup qualifiers in hostile environments that have no analogue in women’s soccer. They later say the men’s and women’s World Cups are different because the qualifying process is longer and more teams enter -- and by the way, the prize money is vastly different. All true.

That said, saying the hostility at home games “can be unlikely anything the WNT faces” speaks ill of U.S. Soccer’s ability to live up to the men’s CBA (6.9 of preamble): “The Federation will make commercially reasonable efforts to provide a home field atmosphere at domestic games.”

Also mentioned: The WNT can get paid for the Olympics. The MNT cannot, and even MNT players who make the U-23-plus-three-overage-players roster for the Olympics don’t get paid.

The Federation also takes issue with any suggestion that the SheBelieves Cup and Tournament of Nations are the equivalent of the Gold Cup or Copa America, in part because SheBelieves and the TON don’t generate prize money. Maybe they should, but the Fed also argues that it created those tournaments -- basically a branded set of friendlies -- to raise the profile of women’s soccer.

So the WNT has a dilemma here. How much do you argue against tournaments that were created to give the women’s team more chances to shine? The Fed pounces on one such argument: “Plaintiffs even filed a brief with the Court earlier in this case taking the position that games in the SheBelieves Cup and Tournament of Nations are equivalent to ordinary MNT friendlies.”

The Fed goes on to do a comparison of bonuses for friendly games, and that’s one of the weakest arguments they raise. It’s also one of the easiest disparities to address. Why did they even bother to raise it here?

U.S. Soccer: “It is also undisputed that when the WNT’s union demanded equal bonuses for World Cup play during 2016 contract negotiations, U.S. Soccer declined, not because the WNT is comprised of women, but because paying such bonuses without receipt of concomitant prize money would “break” U.S. Soccer financially.

Grammatically, that should say “composed.”

The counterargument would be to pay the men less, but neither side is likely to bring up that idea.

WNT (motion to dismiss USSF motion for summary judgment): “The correct legal test under the EPA and Title VII is “rate of pay” and, as shown in Plaintiffs’ summary judgment motion, it is an undisputed fact that the female WNT players have been compensated at a lower rate of pay than the male MNT players.”

For friendlies, this is undoubtedly true. McCrary, though, argues that because the teams’ respective CBAs have “different levels of risk,” “there is no single rate of pay for either contract.”

WNT: “The EPA is clear that the same establishment requirement has been satisfied where, as here, the male and female workers have a common employer who exercises control over both work sites.”

U.S. Soccer will easily destroy this point. U.S. Soccer does not exercise control over the sites of the World Cup, World Cup qualifiers, the Gold Cup (Concacaf certainly doesn’t have to award it to the USA), etc., etc. The men’s and women’s common employer did not ask to hold the men’s World Cup in Qatar.

WNT: “The undisputed fact, from USSF’s own financial records, is that during the class period (i.e., 2015 to date), USSF received more revenue and profit from the WNT than from the MNT, according to the only revenue reports that USSF separately attributes to the MNT and WNT.”

This includes the Women’s World Cup year of 2015 and not the men’s World Cup year of 2014. So while it may be literally true, they can’t really use it to demonstrate a pattern in discrimination between the two existing deals, nor can they use it as a projection of what might happen in the future. The men can’t fail to qualify for every World Cup. One would hope not, anyway.

WNT: “But a third party’s payment to USSF—an amount that USSF did not even know at the time it negotiated either team’s World Cup compensation provisions …”

I’d really hate to argue in court that the Federation had no idea the men’s World Cup prize money would be so much more than the women’s.

WNT: “Consider the case of male and female firefighters. The only relevant consideration is whether their jobs require the same skill and effort and responsibilities. Once that is established, it would not be lawful to provide higher pay to a male firefighter because, on average, males might be able to lift more weight than women.”

I’ll defer to legal experts about the precedent, but it seems reasonable, and again, arguing otherwise is a bad look.