The labor path ahead for WNT: the future can still be bright

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, was 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 Haile, 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.

Klausner’s 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.
• Yes, 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.

No 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 agreement.

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 Hamm. 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.
11 comments about "The labor path ahead for WNT: the future can still be bright".
  1. Santiago 1314, May 2, 2020 at 3:10 p.m.

    Unfortunate for the Women; They Should be PAID MORE than the Men.!!!... NOT EQUAL to a Bunch of Pansi Peddle Pushers we have seen the last 4 years.!!!... Having said that: You CAN NOT compare Apples-to-Oranges; TURN DOWN The Oranges, Then Go to Court to Try and Get BOTH the Apples and Oranges.!!!... Withdraw the Suit; and Renegotiate for THE WATERMELON.!!! We are With You.!!!

  2. David Ruder, May 2, 2020 at 3:23 p.m.

    The answer is that the Woman should break away from the traditional Men's 120-year organization US Soccer and start their own Organization so they can pay themselves what they got coming based on their own P&L statement. This will also be great for traditional Soccer to progress again.

  3. Beau Dure replied, May 2, 2020 at 4:47 p.m.

    Even if the cycle comes around again and the men's revenues are higher than the women? 

    And who pays for youth development, Paralympics and so forth?

  4. Erik Lane replied, May 3, 2020 at 12:21 p.m.

    And, if they break away from US Soccer, would FIFA recognize them as an official body and allow them to participate in FIFA events?  Every other country has one governing body which FIFA identifies as that country's official soccer/football association. 

    Would FIFA want to set a precedent allowing countries to have multiple governing bodies?  

  5. James Madison, May 2, 2020 at 6:54 p.m.

    An appeal would be dumb, and maybe not legally viable at this stage. Since the court granted  summary judgment only on the equal pay claim and did not dispose of the entire case, there is no adverse judgment to appeal from.

    The better course for the women, as Beau implies, will be to make the expiration date of their next CBA simultaneous with that for the MNT.  That will make it difficult for US Soccer to wiggle out of compensating them equally with the men.

  6. Santiago 1314 replied, May 3, 2020 at 1:09 a.m.

    @James... Why would they want to make the SAME as the Men.???... As the Judge figured out... They already get Paid More than the Men...AND They Deserve it.!!!... I have No idea, Who convinced the Gals into Suing... They were Comparing Apples-To-Oranges... They were Offered the Oranges, Refused the Oranges, but Got the Apple Deal instead... Not Satisfied with that; they Lost their Brains and Sued to get the Oranges ALSO... Now, Gals; Get some GOOD Negotiators and get The WATERMELON Deal on the Next CBA...World Champs Deserve to get Paid the Best.!!!

  7. Peter Bechtold, May 2, 2020 at 7:25 p.m.

    This suit was only partially about equal payment. If one reads the entire 110 or so particulars as I have, you will see that.
    And looking at the body language of the 23 "finalists" at the world cup, I could not help but think that the activists were 3 or 4 and the rest just went along for team unity. Note also that the rest did not participate in ANY interviews before,during and after the WC in France.
    The 3/4 activists were very clear during their public appearances before leaving for France that the suit was only partially about $$$. They said"...we are doing this for girls and young women all over America and the world to show them the importance of fighting for your rights...". Their lead lawyer also said that they were taking advantage of current public sentiment in 2019 re the "Me-Movement" and "gender equality". 
    Beau is correct; they had multiple goals and overreached.

  8. Peter Bechtold, May 2, 2020 at 7:38 p.m.

    as usual, I like your commentary. Above, you ask"who shall pay for youth development" ? After a huuuge(:-) number of hours cogitating over this complex situation with USSF, I have come to the conclusion that we would be better off if the model came from basketball here. As you may know, USA BASKETBALL limits its work to fielding national teams for men, women and youth tournaments--Olympics, World Championships and qualifying for these--and selecting coaches, arranging and paying for these events. The rest of basketball they leave alone: NBA,WNBA have their commissioners; college BB has the NCAA and NAIA; high school leagues come under HS Athletic Administrations differing from state-to-state. And youth leagues are organized locally: AAU, Police Leagues, YMCA/YWCA, Boys and Girls Clubs.
    The Paralympics would normally also be handled by the Federation in conjunction with the domestic paralympic movements/organizations.

  9. Beau Dure replied, May 5, 2020 at 10:12 a.m.

    That's an interesting idea. I wonder if part of the issue would be that soccer's youth national teams are busier and more involved than basketball's. 

  10. R2 Dad, May 3, 2020 at 7:08 a.m.

    NWSL is subsidized by USSF and is thus cash flow negative. Who pays for that? Women's soccer has failed mulitple times over the past 25 years (WPS, WUSA, WPSL, W-League) and is not self-sustaining. It's not just "Who Pays For Development?", but who enables the women to have a professional league in the US? This all falls under "compensation" and why the mens and womens CBA is apples-to-oranges.

  11. Wooden Ships replied, May 4, 2020 at 11:24 a.m.

    R2, exactly. Being emotional without considering the funding reality is disingenuous and sadly, typical of these times. 

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