Odds are, the pay equity litigation brought by members of the U.S. women’s national soccer team won’t go to trial on May 5–or at any point. New U.S. Soccer president Cindy Parlow Cone and CEO and secretary general Will Wilson have both voiced a desire to settle. U.S. Soccer leadership has also reshuffled the not-for-profit’s roster of attorneys in hopes of softening the tone of the legal debate.
Meanwhile, the coronavirus disease pandemic has limited operations at the Los Angeles-based federal courthouse where the trial would be held. Although a trial starting on May 5 is currently possible—the court’s limited operations order is set to expire on May 1—the worsening of the pandemic suggests that will likely change. Courts are poised to extend limited operations orders into the summer months. If so, they’d remain reluctant to hold hearings for civil matters, which are fundamentally about money, and instead devote available time to criminal trials, which can lead to a person’s loss of freedom.
With a greater impetus to strike a deal and with increasing uncertainty over court availability, attorneys representing U.S. Soccer and a class of players led by Alex Morgan, Megan Rapinoe, Becky Sauerbrunn, and Carli Lloyd will probably work out a deal. In doing so, they’d end a legal dispute that started in 2016, when five USWNT players filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission. A settlement would preempt a historic showdown between players and U.S. Soccer officials in the courtroom of Judge Gary Klausner and that would be decided by jurors.
But “odds” are exactly that: a forecast of what will probably happen and what probably won’t happen. They aren’t guarantees. Sometimes the unlikely occurs.
That is why a joint witness list, filed by both sides on Monday and obtained by Sports Illustrated, is so important. The list indicates which persons each side would like the opportunity to call to the witness stand should a trial occur. To be clear, some of the persons listed probably wouldn’t be called. Developments before and during a trial often change attorneys’ strategies, including with respect to which witnesses to call. The list is only about who could be called.
The list is also a procedural requirement. Under the Federal Rules of Civil Procedure, both U.S. Soccer and the players are obligated to provide notice of intended witnesses. Brief summaries of anticipated testimonies must also be included. Further, both sides must reveal which exhibits (pieces of evidence) and written statements they’d like to attempt to introduce during the trial. Although movies and TV shows sometimes give the impression that trials involve the dramatic appearance of unexpected figures on the witness stand and the introduction of “smoking guns” pieces of evidence that dumbfound the other side’s lawyers, the reality—that is, the rules of procedure—tell a different story.
With each side providing a list of witnesses, there is much to learn as to how a trial would unfold.
Breaking down the players’ witness list
For the players, the four class representatives are among 18 names listed. Not all of the players would necessarily testify. To that point, a footnote indicates that one of the witnesses has a potential (and completely understandable) conflict with a trial scheduled in May. “Alex Morgan,” the footnote explains, “may be unavailable at trial because of her pregnancy, and in the event that Ms. Morgan is unable to attend trial, Plaintiffs intend to call [teammate] Christen Press in her place.” Morgan is due to give birth to her first child in April.
The players would testify about the collective bargaining negotiations between their union, the USWNTPA, and U.S. Soccer. They would also discuss pay issues and working conditions, including field surfaces (playing on grass fields versus playing on artificial turf) and modes of transportation, such as quality of airplane seats and shuttles. Their testimony would be intended to show that they are paid less and treated worse than members of the U.S. men’s national team.
In order to prevail, the women’s players must establish that U.S. Soccer has broken the law. They assert that U.S. Soccer has violated two laws, the Equal Pay Act and Title VII of the Civil Rights Act of 1964. These laws make it illegal for employers to differentiate employees’ wages on the basis of sex. Employers can rebut gender discrimination claims by showing that pay differences between men and women reflect different (and not comparable) types of jobs, a seniority system or bargained choices reflected in a CBA.
As witnesses, the players would be subject to both direct examination and cross examination. During direct, the players’ attorneys would ask them questions that empower the players to show how they have been treated worse on account of their gender. This would be a crucial sequence in the trial. Jurors would likely be paying close attention to the players, whose personal narratives might prove highly persuasive. The players would try to explain how, in their view, differences between U.S. Soccer’s treatment of the women’s and men’s teams are a function of discrimination against women, not economics or bargaining.
However, during cross examination, attorneys for U.S. Soccer would ask the players’ questions that are designed to elicit answers that contradict or confuse the players’ testimonies during direct. If conducted effectively, cross examination would lead the players to express statements that unintentionally favor U.S. Soccer. Attorneys representing U.S. Soccer would try to get the players to say that the jobs of men and women’s team are different in various ways and that the USWNTPA rationally agreed to the rules that the players now object.
The players’ witness list also includes a group of experts. Dr. Finnie Cook, an economist who conducts economic analyses of lost wages and benefits, is among them. She would testify that the players are owed substantial backpay damages. Backpay refers to wages and fringe benefits that would have been paid but for the employer breaking the law. The players have demanded at least $66 million in damages. Cook’s testimony would help to explain and justify the calculations that led to this figure. During cross-examination, attorneys for U.S. Soccer would attempt to discredit Cook and undermine her methodology and process.
Dr. Roger Noll would also testify for the players. Noll, a professor emeritus at Stanford University, is a prominent economist in sports litigations. He served as an expert witness for former UCLA basketball star Ed O’Bannon in O’Bannon’s successful case against the NCAA over the unauthorized use of players’ names, images and likenesses in video games. Noll described the NCAA and its member schools as behaving as a “cartel” when denying players’ opportunities for compensation tied to their identity rights.
Here, Noll would serve as a “rebuttal expert,” meaning he would dispute the economic arguments offered by experts retained by U.S. Soccer. Specifically, he would challenge U.S. Soccer’s position on appropriate methods for calculating revenue generation and the extent to which revenue generation justifies differences in compensation for the two teams. He would also attempt to undermine testimony by U.S. Soccer’s experts as to how to compare rates of pay between the two CBAs.
The reference to expert testimony is a reminder that much of the trial would be centered on dueling economic analyses. Put more bluntly, there would be a lot of “math” in the trial and disagreements over methods and calculations. The attorneys for both sides would need to keep the attention of jurors who might find some of the experts’ discussion to be esoteric and boring.
The players also list former U.S. Soccer presidents Sunil Gulati and Carlos Cordeiro, former U.S. Soccer chief operating officer Jay Berhalter and other persons connected to the defendant, U.S. Soccer, and its sponsors as potential witnesses. Obviously, these persons are not “on the players’ side.” However, the players would like to reserve the right to call them to the stand so they’d explain differences between the CBAs for the two teams and how the teams are treated differently in terms of pay and hotel and travel arrangements. These witnesses would also be asked to address topics such as U.S. Soccer’s finances, revenues, budgeting, and marketing and sponsorship issues. Gulati, in particular, would be of interest to the players given his pretrial testimony. Attorneys for the players believe he made insensitive comments about the game speed of women players versus that of men (attorneys for U.S. Soccer reject that portrayal–in a trial, the jury would decide).
Breaking down the federation’s witness list and next steps
U.S. Soccer’s portion of the joint witness list contains 19 names. Some of the names are repeats from the players’ portion. One of those repeats is Gulati, who for U.S. Soccer would testify about differences in tournament play involving the women’s and men’s teams. Remember, U.S. Soccer’s defense is partly predicated on each teams’ players having fundamentally different jobs. Gulati’s testimony could aid U.S. Soccer in that regard.
Morgan is also listed by both the players and U.S. Soccer as a possible witness. Based on Morgan’s pretrial testimony, U.S. Soccer believes she would admit under oath that differences in wages reflect lawful collective bargaining rather than illegal sexism. If U.S. Soccer’s expectation of Morgan’s testimony proves correct, her testimony would undermine the case that she and other players have brought.
U.S. Soccer also would like the opportunity to call Ross Moses to the stand. Moses is U.S. Soccer’s director of analytics and research. He would testify about TV ratings and attendance. Part of U.S. Soccer’s defense is that the global market for games played by the men’s team is more substantial than ones played by the women’s team. This line of reasoning goes to economics and justifications as to how the teams are compensated.
The witness list for U.S. Soccer also includes a group of experts. Three of them are subject to a pending motion by the players to exclude their testimony (the players also hope to exclude the testimony of Moses, while U.S. Soccer has petitioned for the exclusion of testimonies by Cook and Dr. Caren Goldberg, another expert). U.S. Soccer would like to be able to call to the stand Philip Miscimarra (former chairman of the National Labor Relations Board), Carlyn Irwin (forensic accountant and experienced expert on economic calculations) and Dr. Justin McCrary (professor at Columbia Law School and labor economist). They would help U.S. Soccer try to show that differences in pay between the teams reflect bargained choices, not the gender of the players, and that the women players’ portrayal of pay differences rely on flawed methods.
As of now, the two sides are scheduled for a pretrial conference on April 20. If it occurs, it would likely be held telephonically since the courthouse is closed for non-emergency civil matters.
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.