Will COVID-19 push U.S. women's lawsuit to settlement or catastrophe?

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.

18 comments about "Will COVID-19 push U.S. women's lawsuit to settlement or catastrophe?".
  1. Bob Ashpole, March 31, 2020 at 11:23 p.m.

    I was not impressed by Prof. Haile's draft. Most significant, it wasn't current and didn't consider the judge's ruling on class certification or the parties recent motions.

  2. Beau Dure replied, April 1, 2020 at 8:27 a.m.

    How do that ruling and those filings affect the analysis?

  3. Bob Ashpole replied, April 1, 2020 at 10:35 a.m.

    At the beginning of a case there are the pleadings, but those are not limitations. They are notice of claims and defenses, but the issues can shift as discovery happens. Generally, the disputed issues are reduced as trial approaches, but not necessarily. Pleadings can be amended, but the requirement for amending the pleadings can be waived.

    The class certification decision is not only a procedural step, but the judge may, and in this case did, discuss the merits of some of the arguments USSF made. Judges can change their minds, but that rarely happens. The summary judgment process identifies specific claims and defenses of the parties and even if the judge denies the motions, the judge will often use the motions to narrow the scope of the hearing. These particular motions are intended to identify what if any factual issues are necessary to resolve in order to decide the case. Both parties are supposed to identify what factual allegations they dispute and what they agree with.

    This is why I was frustrated to not see the parts of the motions identifying the parties' position on the facts of the case. So I don't really know what the case is about.

    For example, the pleadings indicate that the plaintiffs want more than just back pay for violations of the Equal Pay Act. They want equitable relief as well for discrimination. The problem is that I cannot see what the specific injury is that they seek to correct. I don't even know if the trial covers damages or just liability. Judges have broad descretion in how they manage cases, and I have no clue as to how this judge likes to proceed. If this was a simple case, I would expect most judges to handle everything at one trial, but when there is a class action that usually means a more segmented approach.   

  4. Ric Fonseca replied, April 2, 2020 at 2:43 p.m.

    Mr. Dure:  I am not an attorney, I am a retired history professor, however, I did have a bit of a time getting through your article, and am still wondering is you are an attorney.  BUT....

    I take serious umbrage at your opening sentence when you invoke Cinco de Mayo as "buzzkill...:  Umbrage because as a Mexican immigrant (military Cold War veteran, naturalized US citizen, etc.) for the simple reason that - I am inclined to think you do not know just what the Cinco de Mayo refers to - and that is it is a Mexican National Holiday of the mid 19th Century.  I won't go into histrorical detail, but suffice to say that you please write an apology, because gee willikers, you wouldn't want someone else refer to the 4th of July or even then President's Day Holiday as "buzzkill," now would ya???

    The entire piece is very verbose and reads more like your definition of "let's bury the reasons in legaleze verbosity, to obfuscate with "buzzkill" than an explanatory piece on the trials and tribulations of the US Soccer WNT and US Soccer's forthcoming court hearing, on, yes the 5th of May, and (please, I beg of you) NOT the real Cinco de Mayo.  (If you still do not know what it symbolizes - no, NOT Mexican Independence Day, then you may perhaps google it or You Tube it, etc....)  Saludos, amigos!!!

  5. Beau Dure replied, April 2, 2020 at 7:02 p.m.

    Ric, I most certainly would refer to it as a buzzkill if this trial started on the Fourth of July. Maybe not Presidents Day, because no one really does much to celebrate that. 

    Is the objection here that Cinco de Mayo should be marked with more solemnity than most people give it?

  6. Peter Bechtold, April 1, 2020 at 3:09 p.m.

    For my life I cannot imagine that such a lawsuit would be filed in any other country. The technical side being that other countries, to my knowledge, do not have CBAs in their professional and amateur sports structures. The cultural side is well-known: the USA is considered to be the most litigious country on earth, with a gazillion examples to back this up.

    Sadly, this entire enterprise was poorly handled by both sides and will only have losers. Even the "winners" of the lawsuit will discover that theirs was a Pyrrhic victory. 

  7. Michael Saunders replied, April 2, 2020 at 11:43 a.m.

    Peter:   Must correct your first assumption that we are the only, or one of the few countries  that have CBAs.   There are similar legal vehicles made with National Teams in various sports around the worls.  At the same time you then introduce that we are one of the most litigious countries on earth.    You then conclude that this entire enterprise was poorly handled.    

    Please help me understand the alternative approach that would have realistically changed the course taken to come to a meaningful and satisfactory compromise?  Also pretty clear the USSF realized the product value in WoSo represented by the NT.  Similarly, one understands that players wanted to continue to perform in their profession of choice, so "quitting" the sport was not realistic.  

    Indeed,this type action was the one chosen by other athletes in their respective sport seeking free agency in the USA-Canada, or as the European courts ruled on the Bosman ruling regarding transfer fees.  The difference being that as a group, collective bargaining provides more leverage.  I trust I do not need to go into the rationale.     

    Anyway, I am curious as to the your alternative approach.   


  8. Bob Ashpole replied, April 2, 2020 at 1:20 p.m.

    Peter, what you might not be considering is that vast majority of countries do not have the rule of law or an effective judicial system. So the comparison to other countries is evidence that the US is ruled by laws and has an effective judical system.

    Also a large number of cases are family law cases--divorces and probates. Our society makes a political choice in deciding what must be accomplished in the judicial system.

    As for labor law and contract disputes, the vast majority of these disputes are settled before going to court with a handshake. And over 90% of disputes that get to court are settled by agreement of the parties.

  9. Beau Dure replied, April 2, 2020 at 7:04 p.m.

    Other countries also -- generally -- pay their national team players far less than we do. That's mostly because USSF once had to pay its men's national team a year-round salary. But instead of backing away from that when men were able to make a good wage playing club football, the men are demanding a big raise because USSF's revenues have gone up. 

  10. Andy Haile, April 1, 2020 at 3:18 p.m.

    Mr. Ashpole is right that the specific issues under consideration may shift throughout the course of litigation.  That said, the core elements of an Equal Protection Act claim remain the same, which is what my article addresses.  The Federation's (new) lawyers may elect to emphasis different aspects of the defense in light of PR concerns.  I've attempted in my article to give (to the extent I could) an unbiased assessment of the WNT's Equal Pay Act claim.  I have no stake in the outcome, other than wanting reason and fairness to prevail.  Others may disagree with my assessment, and that difference of opinion is why parties go to trial.   

  11. Bob Ashpole replied, April 1, 2020 at 6:02 p.m.

    This is a very interesting case. To be clear to the other readers, I don't disagree with Prof. Haile's assessment. I am just disappointed that the professor did not go further in his analysis, particularly on the establishment issue. I don't know enough about the case to form opinions of my own. 

  12. John Soares, April 1, 2020 at 5:06 p.m.

    It's complicated!

  13. Peter Bechtold replied, April 2, 2020 at 1:34 p.m.

    To Michael S. Thanks for your comments and questions. I believe that we differ mostly/only? in terminology. My reference to CBAs, and your final comment re CBA being the best vehicle, applies to the US/ North American professional sports structure where there are Franchises with owners; I remember well the strikes in MLB, the NFL and perhaps NBA and NHL(don't recall as clearly). In the rest of the world there are no franchises in monopolistic leagues without relegation/promotion, to my knowledge. Hence, players' relations are tied to their individual contracts with their current teams, although transferring to another club tends to be regulated by federations, incl. FIFA rules.
    National teams have separate agreements with their FAs regarding compensation, healthcare, etc. These are not class action suits, but agreements concluded by ever-changing groups of players before each individual tournament. There are considerable differences among the countries' handling of these delicate arrangements between FAs and groups of players.

    I have read the entire lawsuit submitted one year ago, and the responses,point-by-point from the USSF. The original objectives of both sides may have been well-intended, but the tactics have been detrimental to USSF, to Womens/Girls soccer in the US and to Soccer in the USA.

  14. James Madison, April 1, 2020 at 7:57 p.m.

    As usual, Beau Dure is not at his best when trying to analyze a lawsuit.  However, even he is spot on when he says both parties have a BIG INCENTIVE TO SETTLE, either through resuming mediation or in bilateral negotiations.

  15. Bob Ashpole, April 2, 2020 at 11:06 a.m.

    What has occurred to me is that the non-attoneys may not realize what a class action is. This class action is not the US WNT suing the USSF. It is individuals suing the WNT. The individual cases share some issues. The judge grants class certification because he decided that it will be more expeditious to resolve the common issues once for all individuals rather than separately for each individual. Issues that vary among the inidividual cases are resolved separately.

    For example the establishment issue is the same for each individual plaintiff, so the judge will resolve that once. But the resolution of the establishment issue is not a yes or no proposition, as apparently some people think. The judge could find that an establishment exists but it is smaller than what the plaintiffs claim. The impact of such a ruling may vary among the individual cases. This is a very complex lawsuit even for lawyers to understand.  

  16. Bob Ashpole replied, April 2, 2020 at 11:08 a.m.

    Misspoke. Should have said "individuals suing USSF". Not "suing the WNT".

  17. Beau Dure replied, April 2, 2020 at 7:06 p.m.

    Bob - not sure what you mean by this. The WNT - minus Hope Solo - all filed together. They pushed for class certification and got it. Solo pushed to join this suit and was pushed away by the WNT.

  18. Bob Ashpole replied, April 3, 2020 at 1:26 a.m.

    Beau, a class action is a procedural process, not a claim. The purpose of the class action rule is to provide for expeditious resolution of cases that share some of the same issues. I know of one class action discrimination case where the defendent was successful in convincing the judge to deny class certification. The defendent then spent the next 2 years litigating 60 separate trials.

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