Coronavirus, New U.S. Soccer Leadership and Their Impact on USWNT's Lawsuit

The May 5 trial date set for U.S. Soccer and the women's national team suing the federation for gender discrimination could be postponed, while new federation leadership signals that a settlement is desired.
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The coronavirus pandemic has impacted American society in profound ways, and this is inclusive of the courts. Across the country, hearings and trials have been canceled or postponed as courthouses shift to more limited operations. These measures are designed to reduce the spread of COVID-19, which is highly contagious and has infected more than 60,000 Americans. At the same time, courts are trying to ensure that justice and fairness—two pillars of the legal system—aren’t compromised.

This balancing act has officially altered the trajectory of pay equity litigation brought by members of the U.S. women’s national soccer team against U.S. Soccer.

As indicated in a memorandum issued by the U.S. District Court for the Central District of California, the Los Angeles-based federal court has activated its “Continuity of Operations Plan” (COOP). COOP started on March 23 and will remain in place through and including May 1. During this time, no civil cases will go forward except for emergency time-sensitive matters, such as temporary restraining orders. Those matters will be resolved telephonically. Certain types of proceedings in criminal cases will proceed in person though many will be conducted over the phone.

The activation of COOP means that an important pretrial hearing in the USWNT-U.S. Soccer litigation is canceled. Attorneys for both sides were scheduled to meet on March 30 in the courtroom of Judge Gary Klausner. During the hearing, both sides would have argued over their dueling summary judgment motions as well as the players’ motion to exclude the testimony of three of U.S. Soccer’s expert witnesses.

A summary judgment hearing can be pivotal in a case. A judge will grant summary judgment when there is no dispute about key facts related to all or part of a lawsuit, and, when applying those facts to a legal issue, the judge determines how that issue must be resolved. The granting of summary judgment essentially takes the case away from a would-be jury. The judge decides that there is a necessary outcome and thus no trial is necessary. Here, both sides have offered expert testimony and empirical data in hopes of persuading Judge Klausner that the right answer is obvious.

Neither side will get an opportunity to advocate its positions in person. In a new scheduling notice, Judge Klausner expresses that the March 30 hearing “has been taken off the motion calendar.” Judge Klausner will decide on summary judgment, and the admissibility of expert testimony, based on written briefs submitted by both sides.

It’s unlikely that Judge Klausner will grant either side summary judgment. There are sizable disputes about key facts, and the two sides agree on little related to the economics of women’s professional soccer. They even disagree about how revenue ought to be calculated. However, if Judge Klausner concludes that there is a correct version of facts, he would be more inclined to grant summary judgment.

USWNT fans at the SheBelieves Cup

The activation of COOP also raises questions about whether the trial scheduled for May 5 will start on time.

The partial shutdown of the court through May 1 doesn’t automatically necessitate the postponement of the trial. As of this writing, Judge Klausner hasn’t postponed it, and it’s possible that some of the hearings that are scheduled through May 1 could be resolved solely on written briefs, as outlined above. Those that require in-person hearings could be postponed to the fall or later. The court might prefer the least disruption to existing trial schedules rather than changing everything. If so, then trials that are set to begin on May 2 or later could continue as scheduled.

That said, there are plenty of reasons to believe that the May 5 trial date won’t be kept.

First, if the pandemic necessitates an extension of COOP further into May, June or beyond, expect the court to extend the time period. The coronavirus situation in California is, like in many states, troubling. California Governor Gavin Newsom has ordered that residents stay home and has cautioned that it may be some time before normalcy returns. 

Meanwhile, Los Angeles mayor Eric Garcetti and the Los Angeles County Public Health’s Office have issued multiple proclamations that prohibit group gatherings and that place other restrictions on person-to-person interactions. It’s honestly hard to imagine there being a jury trial in Los Angeles in early May, particularly for a civil matter. While the USWNT-U.S. Soccer litigation raises larger questions about fairness and gender, it will ultimately be resolved through the exchange of money; this is not a criminal case where someone could be sentenced to jail or prison and lose freedoms.

Furthermore, hearings that would have occurred at some point through May 1 may be very time sensitive and necessitate being heard in-person after the COOP period ends. In that type of scenario, Judge Klausner would be inclined to postpone the USWNT-U.S. Soccer trial date in order to accommodate more pressing matters.

To that point, while the resolution of the soccer litigation is important, it’s not obviously more time sensitive (or more important) than other matters that lack the same high profile. The USWNT and U.S. Soccer are operating under a collective bargaining agreement that doesn’t expire until Dec. 31, 2021. It’s also not clear when soccer matches will resume during the pandemic. USWNT’s upcoming friendlies have been canceled. Meanwhile, the 2020 Summer Olympics have been postponed to 2021. The Olympics postponement has competition effects on the USWNT, though the players are forbidden in their CBA from striking at any point.

Bottom line: both sides seem have time on their side.

A delayed trial might also supply more time for U.S. Soccer’s new leadership to mend fences with USWNT players and offer them more favorable settlement terms. Both new U.S. Soccer president Cindy Parlow Cone and CEO and secretary general Will Wilson have expressed conciliatory comments about the litigation and signaled a desire to resolve it before a trial. Wilson, for example, said on Monday that ending the case without a trial is a “priority” and that “finding a solution would be the best way to go forward.” U.S. Soccer has also changed its legal team in hopes of bringing new ideas and voices to settlement talks.

In short, while U.S. Soccer is still the same defendant that USWNT players believe has violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964, U.S. Soccer is now run by a new group of people. These people weren’t the ones who made the decisions that USWNT players find objectionable, even if those comments remain on the record. This new dynamic makes a settlement more possible and more likely.

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.