Officially, the U.S. women’s soccer team and the U.S. Soccer Federation may still face off in court on May 5 -- a serious Cinco de Mayo buzzkill.
Circumstances have obviously changed. The Central District of California isn’t hearing civil cases (aside from time-sensitive injunctions or restraining orders) until May 1. At least. Would anyone be surprised if the shutdown goes longer?
In theory, the case may have a ruling before that. The judge in the case, R. Gary Klausner, has said there’s no need for oral arguments on the motions for summary judgment. He’ll rule based on reading them. That’ll take a while.
But if either side wins summary judgment, it’ll be a catastrophe for the loser. Same is true if either side “wins” at trial.
If the U.S. women win and get the $66 million and change that their expert witness calculates they’d be due, U.S. Soccer will have to scale back the development plans it has put in motion, on top of any losses over the next three years due to the economic fallout from the current pandemic.
If the Federation wins, the PR nightmare will continue. The media have so thoroughly bought into the women’s narrative that we’ll surely see pitchforks outside Soccer House and the courthouse.
Make no mistake -- the latter is more likely. The women can win in the court of public opinion. But if they don’t come back to the table to try to settle, they may lose in court.
An upcoming Oregon Law Review piece by Elon professor Andrew Haile -- a former college player himself under the great coach Charlie Slagle at Davidson -- is sympathetic to the women’s team and the way they’ve been treated over their 30-year history, and Haile argues that the Federation should renegotiate the women’s collective bargaining agreement.
But Haile cites precedent to break down the women’s legal burden in this four-part test:
1. The “same establishment.” Haile says, “although the (MNT and WNT) play the same sport, they effectively operate in different markets.” They don’t occupy the same physical space.
2. Rate of pay. The MNT would have received massive bonuses had they won the World Cup. But they didn’t, and the Federation’s tax documents show top WNT players making more than any MNT player did. On the flip side, if the WNT failed to qualify, their salaried players would still get their salaries. (The WNT has indeed come closer to missing out -- see 2010 -- than the MNT has come to winning it, at least since 1930.)
3. “Equal work.” Haile cites precedent: “Judge [Richard] Posner explained that the legislative history of the Equal Pay Act indicated that ‘comparable’ jobs do not satisfy the ‘equal work’ requirement. … Other courts have stated that jobs need not be identical to be equal, but they must be ‘substantially equal’.” Haile, though, believes the women can prevail on this point: “(B)ased on the express terms of the WNT and MNT collective bargaining agreements, a court is likely to find this element satisfied.”
4. “Other than sex.” Haile sees two arguments that may back the USSF here: “The first is the economic market in which the two teams operate, and the resulting difference in revenue that they generate. The second is the different risk tolerances of the WNT and the MNT players, which explain the very different structures of the teams’ CBAs.” As to the first part: “Courts have often held that revenue generation constitutes a legitimate reason ‘other than sex’ for disparate salary arrangements.”
Haile also cites the much-discussed case in which USC basketball coach Marianne Stanley was unable to win an equal-pay case, even given the women’s team’s superior performance in postseason tournaments, because the women’s team generated scant revenue, and Stanley’s argument that the men’s team was better-marketed didn’t persuade the court. Steven Bank, the law professor who has become a soccer celebrity for his matter-of-fact explanations on Twitter and elsewhere, also cites the Stanley case.
All of this evidence leads Haile to this conclusion:
“As analyzed above, the WNT players face an uphill challenge with respect to their disparate pay claim. The difference in revenue generation and the players’ acceptance of the CBA’s guaranteed payment structure make it likely that a court will ultimately reject the merits of their claim. Even so, it is understandable and even admirable that the WNT players have pressed the issue of equal pay.”
If revenue generation is held up as a reasonable point of discussion, U.S. Soccer could have another argument to make: Can the Federation be held responsible for failing to anticipate that, despite historical precedent, the women would generate more revenue than the men in the post-Couva years? Also, would “revenue” include FIFA prize money?
Meanwhile, in court filings, the WNT lawyers have filing to exclude anything they can possibly exclude:
Several witnesses, for a variety of reasons. The most damning would be economist Justin McCray, who argues that there’s no applicable “rate of pay” comparison given the differences between the MNT and WNT CBAs and that the WNT opted to take a deal that offered less risk than the MNT’s deal. Both of those arguments hit directly at the four-part test Haile mentions.
“Justifications Based On Non-Job-Related ‘Factors Other Than Sex’”
Evidence of or reference to CBA and negotiations as defense
Evidence of or reference to third-party payments to plaintiffs
“Preclude Use Of USSF Payments To Union To Argue Payments Are Wages To Plaintiffs.” (Really? Where does payment to the union go if not to the players?)
“Preclude Reference To USSF's Non-Profit Status”: “USSF’s non-profit status is not relevant, and it does not provide a defense to any of Plaintiffs’ claims. Rather, it would only serve to evoke sympathy from jurors and lure them in to making a decision based on emotion instead of the law.”
“Preclude Evidence Of Or Reference To Other International Soccer Team Payments”
Evidence of NWSL-related compensation
Evidence of Soccer United Marketing revenues
That’s not even all of them. The end is listless.
The two sides have also combined for an epic witness list that calls for nearly 100 hours of testimony, and some of it will surely be uncomfortable. The Federation plans to bring in video of Meghan Klingenberg saying “she was paid more under the 2017 WNT CBA than she would have been paid under the MNT CBA in effect during the same time,” along with testimony on the union’s payments to players and “the conduct of negotiations from the perspective of a Player Representative.” Kelley O’Hara is on the same list for the same reasons. So is the union’s executive director, Becca Roux. The players, for their part, want to bring in recent USSF departees Jay Berhalter and Carlos Cordeiro, something they’d surely love to avoid.
Fortunately, neither side is responsible for “EMERGENCY MOTIONS to Intervene by "USA, ex rel; Stephen P Wallace, aka Private Attorney General", and for a Temporary Stay While President Donald J. Trump Reviews Case for Settlement via an Executive Order, with Brief in support filed by Intervenor Stephen P Wallace.” Mr. Wallace’s exhibits included a Wikipedia page defining a “private attorney general” and a letter from Trump thanking Wallace for his support in 2015. The court was not interested.
But both sides have made their share of spurious arguments as well, and it’s especially rich that the WNT lawyers would gripe that the USSF is attempting to appeal to sympathy by pointing to its nonprofit status, given the pages and pages of pleas to sympathy in their own filings. On the flip side, USSF lawyers could hardly have made a less relevant and more damaging argument than the “speed and strength” argument that wouldn’t have won any of Haile’s four points, is easily refuted by case precedent, and yielded an absolute hammering in the court of public opinion.
The court of public opinion, though, won’t translate into a win in court. The Federation has plenty of incentive to settle for nearly any sum that won’t force them to cut programs. (Granted, if it’s more than, say, $30 million, the men will have that much more trouble getting a raise as they seek a CBA to replace the one that has been expired for 15 months, and the next women’s CBA might force a tough negotiation as well.) The women also have plenty of incentive to settle because they’ll have a tougher time persuading a judge and jury than they’ve had persuading people in the media and social media.
And both sides have to go to the table -- even if it’s a virtual table in these days of disease. The Federation can’t make the WNT come to that table. Lawyer and soccer journalist Neil Morris put it best in a recent appearance on the Mixxed Zone podcast, reminding us all that “it takes two to tango.”
Morris continues: “You can’t just tell one side to settle. You can tell them to capitulate.”
For either side to capitulate would be a disaster. If COVID-19 forces a delay in the proceedings, it’s incumbent on both sides to take advantage of that extra time and get this resolved.