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What's next in USWNT's wage discrimination case vs. U.S. Soccer?

SI legal analyst Michael McCann breaks down the USWNT's wage discrimination accusation against U.S. Soccer and how the process could play out over time.

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­The numbers are unmistakable: despite considerably more on-field success and greater revenue generation, U.S. women's soccer players earn much less than their male counterparts for performing very similar work. Less clear is whether these stark and disconcerting pay discrepancies indicate unlawful conduct.

As thoroughly explained by Grant Wahl, five players on the reigning World Cup champion U.S. women’s national team—Carli Lloyd, Alex Morgan, Hope Solo, Megan Rapinoe and Becky Sauerbrunn—have filed on a charge of discrimination with the U.S. Equal Employment Opportunity Commission. They allege that U.S. Soccer has unlawfully discriminate against them. The alleged discrimination is based on stark disparities in pay. Wahl details those disparities, which according to the players establish that they are paid less than half—and sometimes considerably less than half—than male players.

Here is a further explanation of how this may play out and how U.S. Soccer is likely to act:

Understanding an EEOC charge of discrimination

To be clear, the filing of a charge of discrimination with the EEOC neither establishes that unlawful conduct occurred nor proves that accompanying statements—such as charts depicting alleged pay disparities—are accurate.

A charge of discrimination is a required first step for parties in pursuing potential discrimination litigation against an employer. At its core, a charge is an allegation of wrongful conduct.

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The filing of a charge triggers an investigation by the EEOC, a federal agency charged with ensuring equality in the workplace and enforcing anti-discrimination laws. Here, the players contend that U.S. Soccer has violated Title VII of the Civil Rights Act of 1964 by paying them less, allegedly because of their sex. In general, Title VII prohibits employers from paying workers differently because of their sex.

In the coming weeks, an EEOC investigator assigned to the players’ charge will demand information from both the players and U.S. Soccer that is pertinent to the question of pay. The investigator’s demands will initially come in the form of requests; if the requests are denied or ignored, the EEOC can subpoena records. The requested information will likely include a comprehensive report by each side on pay, as well as disclosure of policies that relate to computation of wages.

U.S. Soccer, for instance, will be asked to explain how it makes calculations of pay for male and female players and reveal what factors are taken into consideration. The investigator will likely meet separately with both sides in person for purposes of fact-finding. As a result, the investigator will probably perform a site visit to U.S. Soccer’s main office in Chicago and interview U.S. Soccer officials, including president Sunil Gulati.

Assessing U.S. Soccer’s likely defenses

U.S. Soccer can be expected to raise several key defenses in its interactions with the EEOC. First, U.S. Soccer will stress that any pay disparities are consistent with salary and compensation policies found in its collective bargaining agreement with the U.S. women’s national team.

In a separate legal matter, the two sides are in disagreement over whether their CBA—or at least the terms of that CBA—have been in effect since 2013. The two sides are currently litigating the matter in the U.S. District Court for the Northern District of Illinois and the outcome of that litigation will impact whether a “no-strike” provision is enforceable. In its response to the EEOC, U.S. Soccer will contend the CBA has been in effect and cite provisions from the CBA that relate to wages.

The CBA is important for U.S. Soccer: if the players voluntarily agreed to salary constraints as part of a broader agreement on their employment, the EEOC will be less likely to find that unlawful discrimination occurred.

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In addition to relevant terms contained in contractual agreements, U.S. Soccer will likely object to the salary data and accompanying methodologies provided by the players. The players, as Wahl detailed, offer numerous calculations to insist that there is wide pay disparity and the players maintain these numbers are drawn from U.S. soccer financial statements.

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In response, watch for U.S. Soccer to offer its own set calculations that indicate no disparity in pay or at least less disparity. Perhaps U.S. Soccer will cite economic analyses that present a more complicated depiction of how players’ economic “value” is determined. U.S. Soccer would do so in hopes of showing that any pay disparities are attributable to the marketplace and consumer preferences and not players’ sex.

It will be up to the EEOC investigator to weigh the persuasiveness of the competing calculations.

EEOC investigation could take over a year

As the EEOC investigation unfolds, the investigator will learn more about both sides and their expectations. After doing so, the investigator may find it appropriate to recommend that the two sides enter into mediation, a form of dispute resolution. Mediation would involve the EEOC bringing the two sides together in hopes of finding a solution.

Unlike arbitration—which involves a binding award by an arbitrator—mediation only works if both sides agree with the mediator’s proposal. Here, for example, the mediator might sense that 1) the players would feel sufficiently remedied if U.S. Soccer commits to higher pay for women and 2) U.S. Soccer would commit to higher pay so long as the pay increases are moderate and implemented over a period of time. The mediator might then propose an arrangement along those lines to both sides. If both sides accept the proposal, it would be memorialized in a written settlement, which would also lead to a dismissal of the charge.

Assuming mediation fails, it would be a while before the EEOC investigator decides whether to recommend a finding of reasonable cause.

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The average time for investigations to resolve a charge is 10 months, a period of time that can extend significantly depending on how the parties respond to the EEOC’s resolution.

Given that the players’ allegation is heavily based on pay data and U.S. Soccer may need significant time to formulate its own set of calculations, don’t be surprised if the timeline is longer than 10 months.

If the EEOC finds probable cause, it would ask both the players and U.S. Soccer to participate in “conciliation,” a form of dispute resolution where the EEOC attempts to help both sides navigate towards a settlement. During conciliation, the EEOC might propose specific changes to how U.S. Soccer contemplates payment and distribution of revenue. If conciliation yields a settlement, it would mean that both sides find common ground and the players’ charge would be dismissed. If conciliation fails, the EEOC could then file a discrimination lawsuit against U.S. Soccer. If the EEOC declines to do so, the players would then have 90 days to file a discrimination lawsuit. Any lawsuit could take months, if not years, to play out.

If the EEOC declines to find probable cause, it would dismiss the charge. The players, however, could still file a lawsuit in that scenario, provided they file within 90 days of the EEOC’s decision.

Alternative means to end the dispute

There are other paths for the players and U.S. Soccer to resolve the wage dispute. Take their labor dispute. While the players and U.S. Soccer are currently at odds over various employment terms, their dispute will at some point end. Perhaps that time is weeks or months, rather than years, away. Whenever that time arrives, the two sides will likely agree on a new CBA. In a new CBA, U.S. Soccer would demand a global settlement that extinguishes any existing and potential claims of wage discrimination. This settlement would either require the players to withdraw their EEOC charge or the EEOC charge would be rendered moot.

It is also worth paying attention to U.S. Soccer’s federal lawsuit against the U.S. women’s national team in Illinois. If U.S District Judge Sharon Johnson Coleman rules in favor of the players, they would be empowered to strike. A strike would likely accelerate CBA talks–especially with the Rio Olympics looming in August–and perhaps lead to a new CBA before the EEOC process plays out.

On the other hand, any order by Judge Coleman could be appealed to the U.S. Court of Appeals for the Seventh Circuit. Complicating matters further, the “loser” at the district court level could seek a “stay,” which, if granted, would prevent Judge Johnson’s order from going into effect until an appeal is decided.

All things considered, the best way for players and U.S. Soccer to resolve their labor dispute would be to work out a settlement where both sides give and take. If not, alleged wage discrimination and other claims could be disruptive points of contention for a long time.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.