As U.S. Soccer and members of the U.S. women's national team inch toward what would be a historic trial on May 5, attorneys for the two sides continue to flood the U.S. District Court for the Central District of California with motions, exhibits, declarations and other filings. Among those filings is U.S. Soccer’s memorandum opposing a request by the players’ four class action representatives—Alex Morgan, Megan Rapinoe, Becky Sauerbrunn, and Carli Lloyd—for partial summary judgment.
U.S. Soccer’s memorandum was submitted late Monday in the court of Judge Gary Klausner, who is presiding over the litigation. In the memorandum, U.S. Soccer arguably advances its legal defenses–while also undermining its relationship with fans and consumers and taking a pointed aim at the same players they claim are not being discriminated against.
Writing for U.S. Soccer, attorney Brian Stolzenbach of Seyfarth Shaw maintains that women's players are asking Judge Klausner to rule in a way that “would be unprecedented in American jurisprudence and would be fundamentally inconsistent with federal labor law.” Stolzenbach first asserts that the fundamental flaw of the players’ legal theory is that they compare a pay system that their own labor union, the U.S. Women's National Soccer Team Players Association, negotiated with the pay of players who aren’t in their bargaining unit—players on the men’s team.
To that end, U.S. Soccer stresses that courts have consistently rejected attempts by unionized employees to compare their employment terms to employees who are outside of their bargaining unit. Stolzenbach maintains that if Judge Klausner rules in favor of the women, then the judge would impermissibly intervene in a collective bargaining process that a bonafide labor union and management willingly accepted. This is not a situation where an employer pays individual workers more or less because of their gender. This is a situation, U.S. Soccer insists, where the workers have a union that collectively negotiated how all women's players are paid.
For that reason, Stolzenbach writes that the players “want the Court to grant them victories they could not achieve at the bargaining table by rewriting a few provisions in their CBA to give them additional compensation, without any regard for the give-and-take at the bargaining table (and its many beneficial terms for [players]) that delivered the CBA in the first place.” Stolzenbach’s basic message is that if the players are correct that they deserve higher pay, they should retain a better union to negotiate their pay. Under this logic, the players shouldn’t expect a court to undo what their union negotiated. In that same spirit, if judges required employment conditions that effectively altered CBAs, CBAs would become less reliable for both labor and management and they’d be less inclined to bargain with each other.
Stolzenbach also takes aim at the argument that women's and men's players perform equal work, and it's here where U.S. Soccer's arguments take a pointed turn.
A finding of equal work is important under the law. Women's players must establish that their work is sufficiently equal to that of the men in order to prevail under the Equal Pay Act. Under the Act, “equal work” refers to work that is roughly equal in terms of effort, skill and responsibility. Responsibility is functionally defined as the degree of accountability in performing a job. In legal filings, the players note that the core responsibilities of women's and men's players are basically the same: they must all remain in top physical shape and must perform at a high level. The players also note that Jay Berhalter, the recently departed chief operating officer for U.S. Soccer, has testified that both teams require similar responsibilities.
In an attempt to debunk the players’ reasoning that women's and men's players have jobs that require a similar degree of responsibility, Stolzenbach cites a number of alleged differences:
· “MNT players have responsibility for competing in multiple soccer tournaments with the potential for generating a total of more than $40 million in prize money for U.S. Soccer every four years. WNT players compete in only one soccer tournament every four years that has the potential to generate any prize money at all, and most recently that amounted to one-tenth of the amount the MNT players could generate.”
· “MNT plays in matches watched on television by many millions more people than the WNT.”
· “The average viewership for MNT matches over the first three years of the current WNT CBA was nearly five times as high as that for WNT matches, excluding matches in the Women’s World Cup.”
· “As for the World Cup, when the MNT last qualified, the ratings for its four World Cup matches were watched by more viewers than all the WNT matches in 2019 combined, Women’s World Cup included.”
· “In games for which U.S. Soccer holds the television broadcast rights (and therefore can monetize the ratings), the MNT has averaged more than three times as many viewers per game since 2017. “
All told, Stolzenbach asserts that these purported “facts” demonstrate “the job of MNT player carries more responsibility within U.S. Soccer than the job of WNT player, from an Equal Pay Act standpoint.”
Stolzenbach attempts to supplement this argument, even wading into some territory that could be described as misogynistic.
He insists that men's players face much more demanding working conditions and thus have fundamentally different—and, by implication, harder—jobs. He contends that men's players encounter “opposing fan hostility” in road environments, particularly in Mexico and Central America, that is “unmatched” by anything experienced by women's players. Stolzenbach stresses that the women don’t play in Mexico, Central America or the Caribbean when trying to qualify for tournament play. Further, Stolzenbach maintains that “science” confirms there are different levels of speed and strength required for men's and women's players. He insists it is not a “sexist stereotype” to recognize this distinction.
The women and their legal team, led by Jeffrey Kessler of Winston Strawn, firmly disagree with all of these points. For one, the contention that women's players don’t face the same level of fan hostility as men's players could be rebutted by the fact that women's players are the world champions—and no group of players are more challenged than those on the best team. For another, women's players have played on the world stage while having the added responsibility of representing a social cause for women’s rights.
Kessler might also question why “fan hostility” toward players is a factor at all. Also, As we've detailed previously, Kessler claims that former U.S. Soccer president Sunil Gulati insisted while under oath that pay differences between men and women reflect gender differences in speed (Stolzenbach insists that Kessler has intentionally “mischaracterized” Gulati’s testimony). Kessler contends that U.S. Soccer pays women players less not because of collective bargaining preferences but rather because of dismissive attitudes towards women's players.
The assertion that the men have more demanding and higher-profile soccer jobs than the women offends many observers. Remember, the women's team hasn’t lost a match in 14 months, has won four of the eight FIFA Women's World Cup championships and, by any current meaningful metric, remains much more popular in the United States than the men. Meanwhile, the men have never appeared in a FIFA World Cup final, let alone won one, and last qualified for the World Cup in 2014. The notion that the women hold jobs that carry less responsibility than the men is hard to square with common sense. One could credibly argue their jobs have more responsibility.
Along those lines, Molly Levinson, a spokesperson for the women's players, told The Athletic’s Meg Linehan on Tuesday that the “responsibility” argument by U.S. Soccer is blatantly sexist:
Even U.S. Soccer's most ardent supporters find the federation's legal approach objectionable, with the American Outlaws releasing a scathing statement of their own on Tuesday:
Back to Stolzenbach. Remember his role: he’s an attorney and specifically a litigator retained by U.S. Soccer. He isn’t paid to win over soccer fans, journalists and social commentators. He’s paid to win legal disputes for his clients. To that end, Stolzenbach must convince Judge Klausner and potentially jurors that women's and men's jobs are different enough that an Equal Pay Act claim can’t be established. This is why Stolzenbach forcefully advocates factual assertions that advantage his client from a legal perspective, even if those same assertions are disputable–and even if they offend the public or the players themselves.
The situation isn’t about Stolzenbach. He’s just a lawyer doing his job in the context of a multifaceted litigation. The more relevant question is why U.S. Soccer is in this position at all. U.S. Soccer ought to be thinking about the big picture, including in regard to brand and reputation. The fact that U.S. Soccer must rely on legal arguments that insult many soccer fans–and belittle the same players they are trying to prove are treated fairly–could ultimately inflict more damage on U.S. Soccer’s name than any wage gains U.S. Soccer hopes to obtain in the litigation.
Bad optics and lacking tact seem to be ongoing hurdles for U.S. Soccer. A few days ago, on the eve of International Women’s Day, U.S. Soccer president Carlos Cordeiro released a letter claiming that U.S. Soccer had offered women's players “equal pay” for matches under U.S. Soccer control (meaning not World Cup matches). The players dispute Cordeiro’s characterization and insist that U.S. Soccer’s understanding of “equal pay” would only cover some of the women in the litigation. Regardless of which side is correct, Cordeiro’s public move to pressure women's players–while they're in the middle of the SheBelieves Cup, a tournament that celebrates the women's aspirations and goals–likely did little to bridge the divide.
If U.S. Soccer hopes to reach a settlement with the players and avert a trial, those players will need to be convinced that U.S. Soccer respects their dignity and worth. For U.S. Soccer to essentially claim that the women’s jobs are inferior to those of men might be logical in the context of a legal brief submitted to a judge; however, it’s not going to score points elsewhere.
It all reaffirms that U.S. Soccer better get ready for trial.
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.