A civil lawsuit is, in many respects, a game of poker.
And the women’s national team overplayed its hand.
District Judge R. Gary Klausner
’s decision to
squash most of the women’s legal arguments, released late Friday
a surprise on some levels. Steven Bank
, one of a valuable band of soccer-loving lawyers providing free insights on social media, guessed that the judge might nudge the parties toward settlement
“by pointing out some of the weaknesses of their arguments,” but this was more of an outright unidirectional shove than a nudge.
Yet the hints that the women were going to
face a tougher time in court than they did in the court of public opinion have been there all along. One detailed take
was from Elon professor and former Davidson player Andrew
, who raised many issues with U.S. Soccer’s treatment of the women’s team over history but saw a difficult road ahead for the women in court.
analysis said the following:
• The women’s team was actually paid more than the men -- not just in terms of total compensation but in terms of pay per game.
the men get higher bonuses, but the women asked for a trade-off of lower bonuses for steadier pay.
Here’s the killer: “This history of negotiations between the parties
demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base
compensation and the guarantee of a higher number of contracted players. Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have
made had they been paid under the MNT's pay-to play structure when they themselves rejected such a structure."
The women’s unique pay structure, Klausner argues, has an
economic value. It’s not defined by either side but it’s clearly valuable to the WNT.
There’s no coming back from that.
No need to cite the different work
environments when one team plays World Cup qualifiers all over Central America and the Caribbean while the other team plays in one short, cozy tournament.
No need to cite the case in
which Southern Cal women’s basketball coach Marianne Stanley
was unable to persuade the court that she should be paid the same as her counterpart on the men’s team.
need to wade through the swampland of differing revenue numbers.
It’s not a total loss for the women: “Upon review, the Court finds that Plaintiffs ' Complaint fairly
encompasses a claim for discriminatory working conditions with respect to (1) field surfaces; (2) travel conditions (specifically, charter flights and hotels), and; (3) support services (specifically,
medical and training support).”
That said, the judge tossed out the concern over field surfaces. U.S. Soccer didn’t address the claims on hotels and support services. The
only definitive win for the women was on the disparity in charter flights, and that’s one the federation could possibly win at trial by pointing to the different needs of each team.
The women can appeal, but they should be wary of a precedent involving the most notable lawyer on their massive legal team -- Jeff Kessler
. Twenty years ago, Kessler represented MLS players
who were challenging the league’s structure and its effect on their salaries. The players lost. They appealed. All they got from that appeal was two more years without a collective bargaining
The women’s CBA will expire in 20 months. The appeals process could easily take that long
So the women have a choice here: Option A:
Appeal at all costs, setting up Kessler and the federation to continue their
Moriarty vs. Sherlock Holmes duel. Kessler is also representing the NASL in its never-ending suit against the federation, and he’s facing the federation on behalf of Relevent Sports, a case in
which the most recent court filing is a letter from Kessler expressing a willingness to participate in oral arguments remotely given the COVID-19 pandemic. (He is not representing Hope Solo
nor is he representing the U.S. Soccer Foundation in a suit that has devolved into testy accusations and squabbles over how much more time this should all take.) Option B:
Settle, then use their public goodwill as leverage in obtaining a better deal starting in 2022.
Settlement might be easier now that former
WNT player Cindy Parlow Cone
is the federation’s president. Not Carlos Cordeiro
, who won the crucial Athletes’ Council vote in the 2018 election but issued public statements
that were poorly received on the WNT case and finally resigned amid the outcry over the federation’s insulting legal tactics. And not Sunil Gulati
, whose hard-line negotiations angered
MLS and U.S. Soccer players for more than 20 years.
And getting back to negotiating a new deal might be for the best, anyway. Perhaps it’s finally time to work out a deal in tandem
with the men so that neither side is likely to sue. The downside is that such negotiations would fall during a period of economic uncertainty, but on the bright side, the federation may see a
healthier bottom line without the prospect of a massive payout of back pay to the women’s team.
Option A just doesn’t look good in a risk-reward calculation. If nothing else,
Friday’s ruling demonstrates that a judge doesn’t care how many parades this team has or that Megan Rapinoe
has become the most famous women’s soccer player since Mia
. Court is not a popularity contest.
In negotiating a new CBA, though, the women hold all the cards. Friday’s ruling will only shore up the sympathy women’s soccer
fans and the mainstream media have for them.
The back pay surely isn’t going to be everything the women wanted. But the future can still be bright.