In the latest sign that the much-anticipated jury trial involving U.S. Soccer executives and members of the U.S. women’s national team will never happen, attorneys for the players have filed a petition to stay (postpone) the trial scheduled for June 16. The players also seek a declaration from Judge Gary Klausner that there is final judgment on the players’ pay discrimination claims.
On May 1, Judge Klausner granted summary judgment to U.S. Soccer on pay discrimination claims. However, he preserved the players’ claims concerning alleged discrimination in air travel, hotel accommodations and medical and training support (“working conditions”). As explained more fully here, a partial summary judgment is not a final judgment, and a final judgment is needed for an appeal. Unless Judge Klausner grants final judgment, the players would be prohibited from appealing until after the trial.
The players assert there is “good cause” for Judge Klausner to stay the trial and grant final judgment. As of now, there is an unwanted possibility of two trials. One trial would concern claims over working conditions. If an appeal of Judge Klausner granting summary pay discrimination claims is successful, then a second trial would concern pay discrimination claims. Two trials would arguably constitute an inefficient use of court resources and taxpayer dollars.
The players also stress the public health and safety advantages of postponing a trial during a time where there are shelter-in-place orders and where a trial involving social distancing practices could raise unwanted complexities. Further, according to court documents, U.S. Soccer does not oppose the players’ requests. Chances are, Judge Klausner will postpone the trial for working conditions claims and grant final judgment on the pay discrimination claims.
As a pragmatic matter, Judge Klausner granting final judgment on the pay discrimination claims would accelerate the appeals process by about a month and a half. Instead of waiting for the conclusion of a trial that would likely end at the end of June or early July, the players would be able to more immediately file a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit.
Moving up the appeal by six weeks is not an insignificant amount of time, but it wouldn’t lead to a swift resolution. In the Ninth Circuit, the median time from a notice of appeal to a decision is about 23 months, with a ballpark range of 16 months to 25 months. A three-judge panel on the Ninth Circuit probably wouldn’t issue a ruling until 2022.
Also, while some commentators predict the players would fare better with Ninth Circuit judges, who are often depicted as liberal or progressive, than they have with Judge Klausner, who was nominated by President George W. Bush and is regarded as conservative-leaning, that prediction overlooks certain realities. For one, of the 49 judges and senior judges on the Ninth Circuit, 25 were nominated by Democratic presidents and 24—including 10 nominees of President Donald Trump—were nominated by Republican presidents. Any three of the 49 could be assigned to the panel for the panel.
In addition, the issues in the case are not easily placed into ideological buckets. For example, a judge who might be described as “liberal” could rule for U.S. Soccer on grounds that the players' union agreed to the pay system at the heart of the case and that to hold otherwise could undermine labor-management relations. Alternatively, a judge who might described as “conservative” could be inclined to rule for the players given that the original text of the Equal Pay Act stresses “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 EPA are null and void and of no effect.”
A delayed trial and impact on CBA talks
The postponement of the June 16 trial would likely prove far more consequential than a modest acceleration of the appeal’s timeline. A postponement would allow both sides to engage in additional rounds of settlement talks. New U.S. Soccer president Cindy Parlow Cone and new federation CEO Will Wilson had both previously signaled a desire to reach an out-of-court resolution with the players. Such an ambition hardly guarantees that a settlement will be struck. Remember, the players demand more than $66 million in damages. Meanwhile, U.S. Soccer’s projected revenues during the coronavirus disease pandemic are uncertain. The two sides have also been at odds since March 2016, when five players—Carli Lloyd, Alex Morgan, Hope Solo, Megan Rapinoe and Becky Sauerbrunn—filed on a charge of discrimination with the U.S. Equal Employment Opportunity Commission. Additional months of talks might lead to the same outcome: no deal.
A related timeline might nonetheless prompt the two sides to reach a deal. The players’ collective bargaining agreement with U.S. Soccer is set to expire on Dec. 31, 2021. While next December is a long way off, it likely precedes when an appeal would be decided. Given that any settlement that contemplates pay alterations would probably necessitate to changes to the CBA, the two sides might find it efficient to either resolve the litigation and rework—and extend—the CBA or agree to terms on a new one entirely that satisfies the parties to a greater degree and calms the discord.
Given their extraordinary on-field success, the players would be well-advised to demand a CBA that more closely resembles the one for their men's counterparts. While the women are paid mostly through guarantees, with bonuses playing a minor role, the men receive lower guarantees but can earn very high bonuses. A system where women's players could earn more through bonuses would likely prove advantageous. The U.S. is the world’s best women’s soccer team and hasn’t lost a match since a January 2019 friendly at France. If one is exceptional at a particular occupation, a bonus structure can prove highly profitable.
Hope Solo’s very similar case should not be overlooked
There is still one other factor in the litigation worth noting. In the shadows of the players’ class action lawsuit is a separate equal pay case brought by their former teammate, Solo. The goalkeeping great sued U.S. Soccer about seven months before the more celebrated case, Morgan v. U.S. Soccer, was filed last March.
Like her former teammates, Solo claims that U.S. Soccer has violated both the Equal Pay Act and Title VII of the Civil Rights Act of 1964. Her basic theory of liability matches that of the women's players: U.S. Soccer has allegedly paid its women less than its men due to gender-based discrimination. U.S. Soccer’s defense is essentially the same, too. U.S. Soccer insists that the women players earn as much, if not more, than the men and that the women's players’ union collectively bargained the pay scheme at issue. Solo v. U.S. Soccer and Morgan v. U.S. Soccer are parallel cases.
Solo’s case, however, is in a different federal district, the U.S. District for the Northern District of California, and is under review by a different federal judge, Judge James Donato. While there have been efforts to consolidate the two cases, none has succeeded. In fact, at times, Solo and her former teammates appear to be at odds. Last year, the women's players filed a motion objecting to Solo becoming involved in mediation talks between WNT players and U.S. Soccer.
Solo’s case is currently on pause—more technically, it is “administratively closed pending further order.” In February, Judge Donato granted a joint request by Solo and U.S. Soccer to stay the proceedings. The joint request noted that Solo intends to coordinate discussions of her Equal Pay Claim with the players and that the outcome of the players’ summary judgment motion “will likely have an impact on [Solo’s] claims.” As of now, that outcome is a negative one.
Solo and U.S. Soccer have agreed to provide updates to Judge Donato every 90 days, with the first update scheduled for later this month. For now, all pre-trial deadlines in Solo v. U.S. Soccer have been vacated.
If the Solo case eventually resumes, Judge Donato would not be automatically bound by Judge Klausner’s rulings. Decisions in one federal district are persuasive authority for courts in other federal districts, but they are not binding precedent.
Judge Donato, who was nominated by President Barack Obama in 2013, might evaluate evidence differently and apply the law differently than Judge Klausner. For example, Judge Donato might reason that, because women's players and U.S. Soccer offer conflicting calculations on wages and revenue, a jury should hear the evidence and decide which side is more persuasive. To counter that possibility, U.S. Soccer would likely insist on the legal principle of res judicata, which is a Latin expression that means “a thing decided.” U.S. Soccer would contend that Solo’s claims are duplicative to those of the women's players—to that point, Solo and U.S. Soccer’s joint request highlights the commonality of the two cases—and Judge Klausner’s legal reasoning should be respected. In response, Solo could maintain that her case involves different attorneys and expert witnesses, and, when studied by a different federal judge, might lead to a contrasting outcome.
The bottom line: litigation involving the pay and workplace conditions of the women's players is complex and could have many turns ahead.
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.