An attorney for Hope Solo recently told a federal judge that the 28 U.S. women’s soccer players suing over alleged gender-based employment discrimination desperately need Solo for their mediation talks with U.S. Soccer. Without Solo, the attorney warns, these Women's World Cup championship players would be poised to “back down” and “surrender.”
Thanks, but no thanks.
In Solo’s defense, she sued U.S. Soccer months before the players sued. Also, the players and their attorneys borrowed heavily from legal and factual arguments developed by Solo’s attorneys. It was Solo—not Alex Morgan, Megan Rapinoe, Becky Sauerbrunn or any of the other 25 players involved in the current fight—who in August 2018 who was the first to claim that U.S. Soccer had been violating both the Equal Pay Act and Title VII of the Civil Rights Act of 1964. Solo enjoys a logical argument that she’s owed a seat at the mediation table. As explained below, the players and U.S. Soccer are fine with Solo being at a table—just not their table.
Mediation is a non-binding process where a mediator listens to both sides and offers a recommended solution. If mediation leads to a settlement between the players and U.S. Soccer, its terms would then need to be incorporated, most likely as amendments, in their collective bargaining agreement. This is a possibility: in June, the players and U.S. Soccer acknowledged a plan to mediate after conclusion of the World Cup. Litigation filings suggest there have been recent communications between attorneys for the players and U.S. Soccer; whether such communications lead to a resolution remains to be seen.
Both sides have agreed on one thing, though: they don't want Solo granted a part of their discussions. Here's why:
Players' arguments opposing Solo’s involvement
In a five-page legal filing submitted to the U.S. District Court for the Northern District of California, which was obtained by SI.com, attorneys for the players “respectfully oppose” Solo’s petition to intervene. Solo, as detailed last week, seeks an order from Judge James Donato that would compel the players and U.S. Soccer to permit her involvement in the mediation.
The players, through their attorneys, raise four core arguments against Solo getting involved.
First, Solo’s lawsuit is separate from the lawsuit brought by the players. While the two lawsuits are substantively similar and while the players have petitioned for the lawsuits to be merged, the two lawsuits remain distinct. Mediation to resolve one lawsuit is just that: a method of dispute resolution to resolve that lawsuit. It is not a system for resolving broader concerns that happen to surface in multiple litigations.
Second, Judge Donato is not presiding over the lawsuit brought by the players. Those players sued in a different federal district, the Central District of California, and the presiding judge for their case is Judge Gary Klausner. To the extent Solo were to play a role in a lawsuit brought by players in a different federal district, the judge in that district—Judge Klausner—would need to approve such an arrangement. The players therefore maintain that Solo has picked the wrong forum and the wrong judge to demand involvement.
Third, the players insist that Solo’s case would not be prejudiced if they reach a settlement with U.S. Soccer. Solo’s case, until further notice, will remain separate. The players also stress that Solo and her attorneys have thus far preferred that their case remain separate.
Solo’s claims for back-pay and other remedies would thus continue in existence beyond any settlement reached between the players and U.S. Soccer.
It's true Solo’s case would become less impactful without the involvement of those players. Still, her case would not be erased merely because the players and U.S. Soccer reach a settlement.
Fourth, the players are clearly peeved by Solo’s portrayal of them as weak-willed. Their attorneys express, “it is regrettable that Solo has chosen to challenge the fortitude of the Morgan plaintiffs.” These players, their attorneys maintain, “are all World Championship who have proven that they bow down to no one and are relentless advocates of equal pay. ... With all due respect, they do not require Solo’s assistance.”
This is an important point: the players are unambiguously communicating that they don’t want Solo involved in a mediation in which she is not a party.
U.S. Soccer's arguments opposing Solo’s involvement
U.S. Soccer, which employs the 28 players suing the federation and previously employed Solo, also opposes Solo’s motion to join the not-for-profit’s mediation with the players.
Before offering reasons to oppose Solo getting involved, attorneys for U.S. Soccer emphasize in a filing obtained by SI.com that their client is open to mediating with Solo individually. In fact, they note that Solo “already agreed to pursue either private mediation or a settlement to resolve” her dispute with U.S. Soccer. In February, the parties expressed in a court filing a shared intent to mediate their case “no later than January 2020.” As a rebuttal, Solo could argue that the landscape of their litigation changed dramatically last month when U.S. Soccer and the players revealed an intention to mediate. Still, if U.S. Soccer is open to mediating with her, she has a weaker claim to demand involvement in the players’ mediation.
U.S. Soccer, through its attorneys, then offers three main rationales to oppose Solo joining its mediation with the players.
First, the two cases are “entirely” different and are pending in different federal district courts. To that end, U.S. Soccer insists that its agreement to mediate with Solo “has nothing to do with” its agreement to mediate with the players. Solo may want to be in the room for settlement talks between U.S. Soccer and the players, but she is an outsider, not a litigant, in that case.
Second, Judge Donato seemingly lacks the authority to join Solo with the 28 players for mediation talks. Solo, as U.S. Soccer highlights, is not only an “non-party” in the players’ case but she has thus far been unwilling to consolidate her case with that of the players. So long as the two cases remain separate, and with different federal judges presiding over them, neither Judge Donato nor Judge Klausner can likely compel parties in another jurisdiction to alter their plans for mediation.
Third, while Judge Donato ordered the parties to cultivate an efficient resolution of the litigation, he did not—and could not due to lack of authority—order “global mediation,” meaning a mediation involving the players, Solo and U.S. Soccer. In that same vein, a judge directing parties to be efficient is distinguishable from a directive to mediate.
Judge Donato will take these arguments under advisement and offer a ruling in the near future.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.