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USWNT Challenges Use of U.S. Soccer's Expert Witnesses in Gender Discrimination Case

Should the USWNT's gender discrimination case vs. U.S. Soccer go to trial, the use of expert testimony could prove vital, which is why the players' side is challenging the federation's approach.

If U.S. Soccer and members of the U.S. women’s national team go to trial over the players’ pay equity claims, expert witnesses would play crucial roles. Each side has retained experts who would offer testimony that draws on their employment and educational proficiencies and addresses the core question of whether U.S. Soccer has illegally paid women's players low wages. These experts would also face cross-examination by the opposing side’s attorneys. Jurors often find expert witnesses persuasive on the witness stand. Experts can appear authoritative, knowledgeable and credible. Although experts are paid by one of the two sides, they sometimes seem less biased than other witnesses.

In a new court filing, the lead attorney for the players, Jeffrey Kessler of Winston Strawn, hopes to persuade Judge Gary Klausner that the testimony of three of U.S. Soccer’s experts should be deemed inadmissible and excluded from the proceeding. The players previously objected to the same three experts. Kessler uses the latest filing in Judge Klausner’s Los Angeles federal court to expand the player’s arguments.

The Federal Rules of Evidence instruct that expert testimony should be excluded when it will likely cause unfair prejudice, confuse the issues or mislead the jury, or when it is based on unqualified views or untrained opinions. Attorneys can use these rules and accompanying case law to argue for a “Daubert” motion. Such a motion is based on a U.S. Supreme Court holding (Daubert v. Merrell Dow Pharmaceuticals). It maintains that testimony drawn from questionable methods or inexpert understandings ought to be excluded. The players’ motion cites Daubert several times.

The first expert targeted is Philip Miscimarra. In 2017, President Donald Trump named Miscimarra chairman of the National Labor Relations Board (NLRB). Four years earlier, President Barack Obama appointed Miscimarra to the NLRB. Miscimarra is an accomplished authority on labor law and a partner at the law firm Morgan Lewis. Last month, U.S. Soccer filed an expert brief on behalf of Miscimarra, whose testimony supports U.S. Soccer’s contention that the not-for-profit has complied with the Equal Pay Act and Title VII of the Civil Rights Act of 1964. In general, those laws make it illegal for employers to discriminate employees’ pay on the basis of gender.

The players insist that Miscimarra’s testimony is inadmissible on account of him presenting what Kessler describes as an “incorrect, highly misleading” argument that is “certain to lead to juror confusion.” Kessler cites cases where courts identify the risk of an attorney serving as an expert since there is “a danger that the jury may think that the ‘expert’ in the particular branch of law knows more than the judge.”

In objecting to Miscimarra’s testimony, the players take particular aim at an argument U.S. Soccer believes is central to its defense: The players are represented by a union that agreed to a pay system that the players now believe is illegal. In his report, Miscimarra contends that labor law would be undermined if players could agree to terms in a collective bargaining agreement and then later use those same terms to argue that they have been unlawfully paid. Miscimarra warns such an outcome would trigger “after-the-fact mid-contract changes” that defy labor law and its overarching principles. These principles defer to the choices of unions and management in their CBAs and are premised on the belief that courts won’t attempt to rewrite CBAs.

The players maintain that Miscimarra’s position ignores important doctrines. In filings, Kessler has written that the Equal Pay Act contains a provision that expresses “collective bargaining agreements are not a defense” and that “any and all provisions in a collective bargaining agreement which provide unequal rates of pay in conflict with the requirements of the Equal Pay Act are null and void and of no effect.” He also cites court holds indicating that “collective bargaining agreements may not perpetuate discrimination in violation of Title VII and the Equal Pay Act.” The players insist that Miscimarra’s viewpoint should not count as expert testimony because it arguably regurgitates a viewpoint that U.S. Soccer’s attorneys already raise (and one that the players assert is incorrect).

U.S. Soccer has previously and forcefully objected to the players’ portrayal of Miscimarra. U.S. Soccer maintains that, as the former chair of the NLRB, Miscimarra possesses respected views on labor policy that go beyond his role as a practicing attorney. In a filing earlier this month, U.S. Soccer attorney Brian Stolzenbach of Seyfarth Shaw writes that “Miscimarra’s testimony about the ordinary course of collective bargaining negotiations, based on his extensive knowledge and experience in the area, would be extraordinarily helpful to a jury in placing these arguments and statements in context.”

The players also object to the testimony of Carlyn Irwin, a forensic accountant and experienced expert on economic calculations. The players maintain that she submitted analysis that wrongly argued that total pay, not rate of pay, is the proper method of comparing pay for women's and men's payers. Judge Klausner has signaled that rate of pay is the more appropriate method since total pay ignores that the women won more games than the men and that many of the women players hold second jobs in soccer by playing for teams in the National Women’s Soccer League. Kessler maintains it would be “legally irrelevant and confusing to the jury” for Judge Klausner to permit her testimony.

Earlier this month, Stolzenbach (on behalf of U.S. Soccer) disputed this line of reasoning by stressing that Irwin’s testimony offers the correct view. He also maintains that Irwin’s testimony helps to illuminate how the CBAs for the women and men contemplate different compensation policies: Women's players earn more through guarantees but with less upside whereas men's players earn mainly through lucrative bonuses instead of guarantees.

Lastly, the players petition Judge Klausner to rule the testimony of Justin McCrary, a professor at Columbia Law School and a labor economist, inadmissible. McCrary concludes that neither the pay system for women's nor men's players “is systematically better or worse” and that “there is no single rate of pay for either” group. He also claims that, for friendly matches, the CBA for women's players typically pays them more than does the CBA for the men. McCrary’s testimony helps U.S. Soccer assert that women's players were not subject to gender discrimination since their pay system is, in the view of McCrary and U.S. Soccer, not inferior.

Writing for the players, Kessler asserts that McCrary’s findings are based on inadmissible opinion rather than factual analysis. To that end, Kessler maintains that McCrary’s “opinions are totally divorced from the actual record facts.” Kessler asserts these views “are based upon hypotheticals that assume an unrealistically small number of games in comparison to the actual record facts . . . it is undisputed that during the class period since 2015, the WNT has played an average of 22 games per year, and the MNT has played an average of 17.25 games per year. These facts destroy U.S. Soccer’s claims that McCrary’s hypotheticals based on the WNT playing either 16 games per year or 8 games per year during the class period are realistic.”

The players and U.S. Soccer's intense arguing over expert witnesses illustrates how much experts could potentially sway juror opinion. This is a complicated case where both sides have offered in-depth, detailed and conflicting arguments. Which experts can testify, and which topics they can discuss while on the witness stand, might determine which side wins.

Judge Klausner is currently scheduled to hold a hearing with both sets of attorneys on March 30. The date for the hearing has not (yet) been changed due to the coronavirus pandemic, though many courts have postponed hearings. If the hearing occurs, we’ll learn more about the admissibility of expert testimony.

As previously detailed, the significant changes in the last week at U.S. Soccer–president Carlos Cordeiro's resignation, former U.S. women's player Cindy Parlow Cone's ascent to his chair and the addition of Latham & Watkins to the federation's legal team–as it relates to this case could indicate that a settlement is more likely. Parlow Cone spoke in no uncertain terms about the misogynistic arguments peddled by the federation through Seyfarth Shaw and seemed to open the door for more pre-trial discussion.

"I know how important it is for both the federation and the players to move beyond this and keep working together on what unites us,” she wrote in a letter on Monday night. “We only have one federation and one senior women’s national team. We have to work together and move forward in a positive manner toward what I know are mutual goals, growing the game and winning.

"We are still hopeful we can find a positive resolution for both sides."

Regardless of whether that becomes the case, the players' side is at the very least still taking the necessary steps to try to strengthen its stance should the dispute go to court.

Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.