Neil W. Blackmon
Late Monday night, the United States Soccer Federation filed its response to the motion brought by members of the US Women’s National Team’s asking the Court to direct judgment in their favor in the now longstanding class action legal dispute and litigation over equal pay and gender discrimination.
US Soccer’s filing came only a day removed from the US Women’s National Team’s 1-0 victory over an emerging Spain at the #SheBelieves Cup, a tournament that US Soccer throws annually as a celebration of women, designed – and here I quote directly from a US Soccer press release “to encourage girls and women of all ages to accomplish their goals and dreams, athletic or otherwise.”
The timing of the pleading was expected, with a May 5 trial date on the class action lawsuit looming. But it’s hard to break free from the stunning tension between US Soccer’s actively hosting a tournament as a celebration of women and the filing that US Soccer presented to the United States District Court for the Central District of California Monday night.
Conceptually a wonderful idea, the SheBelieves Cup has suffered, since at least the outset of the USWNT’s wage discrimination complaint, originally advanced in 2016, from an existential crisis. How credible is to have an organization like US Soccer throw a tournament celebrating the accomplishments and dreams of women when they are literally in court being sued for discrimination by their own employees?
That crisis took on a new and darker dimension Monday night, with US Soccer’s legal briefs arguing, in plain language, that women are physically subordinate and inferior to men.
Let’s dive into the language in US Soccer’s response before we talk big picture implications, shall we?
The Background
Motions for summary judgment, which ask the Court to direct judgment in favor of one party on the law, are commonplace in federal practice prior to trial. Usually, each side in a lawsuit is allowed to move for summary judgment; if both sides choose to do so, those motions happen simultaneously.
A judge may grant summary judgment only if there is no dispute over “material” (legal word basically meaning critical) facts related to all or a portion of a lawsuit and when a judge can apply the undisputed facts to a legal issue (or issues) in dispute and determine, based on the pleadings and evidence in the record, whether judgment in favor of one side is appropriate without the case going before a jury or to trial.
Typically, summary judgment motions are denied, especially in cases where there is a significant debate over fundamental facts. That’s certainly a characterization that fits the USWNT-US Soccer litigation, a dispute with a host of fact-intensive, empirical data and dueling witnesses over how to interpret that data.
In this case, the USWNT has moved for partial summary judgment, seeking 66 million dollars in damages. On the other hand, US Soccer has moved for complete summary judgment, seeking to have the case dismissed outright.
It seems unlikely, based on the intense debates between experts on both sides and dispute over which mathematical models to use on key issues like revenue, that Judge Gary Klausner will grant either motion. Judges typically want juries to evaluate intense fact and expert disputes, preferring to exercise restraint and call balls and strikes.
But, as it is entitled to do, US Soccer filed a memorandum of law in opposition to the USWNT motion Monday night. This is where a party is given the chance to explain to the judge why summary judgment is not appropriate.
All of this is pretty much standard fare, and the arguments on each side were largely predictable in the context of wage and gender discrimination complaints.
It’s the US Soccer memorandum in opposition where things get… overtly sexist and weird.
U.S. forward Carli Lloyd, center, celebrates her goal against the Costa Rica with Emily Sonnett, left, and Christen Press during the first half of an international friendly soccer match Sunday, Nov. 10, 2019, in Jacksonville, Fla. (AP Photo/John Raoux)
The Substantive Arguments
In their own motion for summary judgment, US Soccer’s focus was primarily on the argument that certain baseline compensation guarantees, coupled with revenue, structural and economic differences between the men’s and women’s games differentiate the men and women’s jobs and justify a different compensation structure.
US Soccer also notes that the USWNT collectively bargained for the CBA that now seek to have deemed discriminatory by the court. While recognizing that the tide of public opinion is against them, US Soccer’s lawyers argue that in fact, “US Soccer paid the WNT far more than the MNT over the past five calendar years,” noting that even if NWSL salaries paid by US Soccer were excluded, the federation has still “paid the WNT $6 million more than the MNT over the same period.”
Noting the value of these contracts and their baseline guarantees as to salary, US Soccer argues that the higher guaranteed compensation structure provides a unique insurance value to the women’s compensation structure, one that was collectively bargained for and at a bare minimum, only different than the men’s structure, not inferior.
The US Women have answers to these arguments, of course.
They argue they only accepted the current CBA because US Soccer refused to offer more and rejected similar compensation structure to the men. They also cite a key provision in the Equal Pay Act that plainly states “collective bargaining agreements are not a defense” and if they “provide unequal rates of pay” they are null and void.
Further, the women cite competing revenue figures noting that the women have actually generated more revenue since 2015 than the men’s team, debunking US Soccer’s different revenue and economic models arguments.
Finally, the women argue that their work is substantially equal to the men’s work: citing examples such as female salespersons selling the same products as male salespersons” and noting they would not “have to show that they travel to the same clients in the same geographic regions in order to assert an Equal Pay Act claim”, among other notable examples.
It’s in answering the latter argument: that women perform equal work, where US Soccer jumps the shark and goes full-on sexist.
The Sexist Arguments
In US Soccer’s brief opposing the women’s motion for summary judgment, US Soccer plainly argues that women are inherently inferior to men, lacking the size, speed and physical attributes to do the same work.
Not only did US Soccer double down on biologically reductive sexist argumentation to try to show “different work,” they denied it was sexist to… well, be sexist… instead arguing it is “indisputable science:”
“Nor is it a “sexist stereotype” to recognize the different levels of speed and strength required for the two jobs, as Plaintiffs’ counsel contend. On the contrary, it is indisputable “science,” as even Plaintiff Lloyd described it in her testimony. (Lloyd Dep. 103-05.) See also Doraine Lambert Coleman, Sex in Sport, 80 LAW AND CONTEMPORARY PROBLEMS 63-126 (2017) (available at: https://scholarship.law.duke.edu/lcp/vol80/iss4/5) (describing the scientific basis for “the average 10-12% performance gap between elite male and elite female athletes,” which includes differences between males and females in “skeletal structure, muscle composition, heart and lung capacity including VO2 max, red blood cell count, body fat, and the absolute ability to process carbohydrates,” and noting, by way of example, that “no matter how great the great Katie Ledecky gets . . . she will never beat Michael Phelps or his endurance counterparts in the pool”). “
US SOCCER BRIEF at p. 11.
Biology just makes it harder to be a men’s soccer player than a woman’s soccer player, US Soccer’s attorneys argue.
Another reason cited for this?
Apparently the fact US men occasionally have to play home games in stadiums that either aren’t full or alternatively, aren’t full of US fans. While you have to admire US Soccer for having the audacity to appoint Bruce Arena as counsel and litigate the merits of Red Bull Arena, it’s impossible to imagine this argument having much merit. Nevertheless, there’s US Soccer, essentially arguing that if the US Women- you know, lost more games- they’d deserve to be compensated more.
US Soccer earnestly argued:
“Finally, “working conditions” under the EPA includes the “surroundings” of the job. 29 C.F.R. § 1620.18(a). In this respect, MNT players routinely play matches (important World Cup qualifiers, in particular) throughout Mexico, Central America, and the Caribbean. (1st King Dec. ¶ 69, 77, Ex. 21.) The WNT does not. (Id. at ¶ 68, 77, Ex. 20.) Opposing fan hostility encountered in these MNT road environments, especially in Mexico and Central America, is unmatched by anything the WNT must face while trying to qualify for an important tournament. (2nd King Dec. ¶ 16.) Even the hostility of fans at home crowds for the MNT in some friendlies can be unlike anything the WNT faces. (Id.) This is all evidence of substantially different jobs under the EPA.”
US SOCCER BRIEF at p. 14
Yes, US Soccer has an interest, in a court of law, in disproving an element of a legal claim– here, that the USWNT do “substantially similar work.”
The EPA, after all, only prohibits discrimination in wages “on the basis of sex for equal work, on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.” Stanley v. University of Southern California, 13 F.3d 1313, 1321 (9th Cir. 1994).
If US Soccer doesn’t challenge that element, they have to demonstrate that their type of compensation for the women is not a discriminatory rate of pay.
But what’s odd is they seem to have a colorable claim to win that very argument.
Plus, US Soccer could easily make arguments that the work wasn’t similar because of different markets for talent or different revenue potential– without collapsing on antiquated, harmful sexist tropes that belittle and demean their employees.
Further, even if these arguments somehow prevailed in court (they are unlikely to do so), is it worth the opportunity costs of being annihilated in the court of public opinion? What value is there in winning in court when the world thinks you treat your women employees like commodities or underpaid servants? How does that ever help your bottom line- which you repeatedly emphasize is important to growing the game?
That’s why it’s important to view these biologically reductive arguments through the lens of institutional sexism because in truth, US Soccer had an opportunity to make a much more narrow and compelling argument that avoided the scorched earth argumentation that is an obvious loser in the court of public opinion and an almost certain loser in a court of law. They declined. Instead, they doubled down on men are better than women, even confronting multiple US players in deposition over whether there were inherent differences.
The best of the deposition replies? None other than Kelley O’Hara, of course.
US Soccer Attorney Q: Would you agree that there are differences between the Men’s World Cup and the Women’s World Cup?
O’Hara: Such as?
US Soccer Attorney: My first question is, would you agree that there are differences?
O’Hara: Yes. One has men play in it and one has women.
O’Hara, 2020.
It’s impossible to reconcile the spirit of the SheBelieves Cup with the sexism of US Soccer’s legal filings Monday.
She Believes, but US Soccer Doesn’t
This strategic blunder by the US should- and I think will- have far reaching consequences. In fact, as a matter of practical lawyering and as it relates to effect on long-term public opinion, it’s a blunder that is probably worse if the case settles prior to trial, as is likely. What value is there for US Soccer in demeaning their own world champion players if they ultimately broker a settlement? And given the unlikelihood they win any of the biologically reductive, sexist legal arguments: what legal value did including them in the brief garner?
To begin with, it’s hard to take SheBelieves– or most anything US Soccer says about encouraging women to pursue their dreams as anything, athletics or otherwise- seriously when it adopts hardline legal positions that entrench and codify old sexist notions of male superiority in the name of reductionist “biological difference.”
At best, the SheBelieves Cup is hypocritical virtue-signaling of the worst sort: She might believe, but US Soccer doesn’t.
At worst, it’s a scorched earth legal policy adopted by US Soccer’s Chief Legal Counsel Lydia Wahlke and pursued by the powers that be at US Soccer simply to win a lawsuit at all costs that both (a) lacks focus and legal clarity, especially as to better legal arguments US Soccer could advance and (b)- and more importantly, shows a staggeringly callous and absurd disregard for the public message it sends to call your four-time world champion employees inferior to your male employees. The legal need to make this argument was negligible and the rhetoric sexist (forget the optics being bad, this is outright sexism so it is no longer merely about optics) regardless of the legal merit, which, again, as to these arguments, is negligible.
Further, given the reluctance of federal courts to grant motions for summary judgment, this was astonishingly poor high level thinking and leadership and lawyering– a strategic choice that, in the name of zealous advocacy on behalf of a client, may backfire so wildly in the court of public opinion that partner level lawyers face firing level scrutiny.
In truth, a simpler, cleaner legal strategy existed wherein US Soccer had a viable and winnable argument that genuine market differences, economics and external differences distinguish the job of US Women’s National Team player from US Men’s National Team player, justifying different compensation schemes. Instead, US Soccer lost the forest of that smart argument for the sexist trees. And why? There was no need to double down on the offensive and for the most part, legally untenable argument that women are inherently inferior to men as part of the federation’s attempt to prove it isn’t discriminating against the USWNT based on gender.
But US Soccer did it anyway.
It might be easy to blame overzealous lawyering. Some probably will.The trouble with that rebuttal is that when it comes to US Soccer, this is just the latest example of a federation largely tone deaf to the challenges of the contemporary moment.
Whether it’s abandoning the opportunity for structural and systemic change in the US Soccer Presidential election held in the aftermath of the men’s colossal failure to qualify for the 2018 FIFA Men’s World Cup; the failure to work with state and regional soccer organizations to increase access to soccer in underserved urban and rural areas; the outgoing President of US Soccer comparing the often crippling, thousands of dollars a year costs of travel and academy football to “paying for a piano lesson”; or arguing that its four-time World Champions are inferior to men based on “indisputable science”, US Soccer has no clue how to get out of its own way.
Worse, when called on it, US Soccer tends to respond with self-righteous indignation. “There’s not been a federation that’s done more for women’s soccer than US Soccer,” former US Soccer President Sunil Gulati was fond of suggesting. Echoing Gulati March 7, new boss Carlos Cordeiro sounded same as the old boss, insisting that US Soccer will continue to lead the charge for the women’s game at home and abroad.
U.S. Soccer has offered a proposal for equal pay for our women and men players in all matches controlled by U.S. Soccer.
— Carlos Cordeiro (@CACSoccer) March 7, 2020
We look forward to discussing our proposal with the WNT and to resolving this in the best interest of everyone involved. pic.twitter.com/c3xZ3AtnT7
Can you really lead the charge when you’d rather invest in legal fees fighting the women in court than in more equitable compensation? Can you really lead the charge when you suggest in legal arguments that the only “big” women’s tournament is the World Cup, which ignores the longtime role FIFA has played in allowing and accommodating regional men’s tournaments but ignoring women’s federations? Can you truly believe, as the SheBelieves creed proclaims, in the ability of women to excel and lead, in athletics or otherwise, when your legal pleadings rely on and cite “experts” like Doriane Lambelet Coleman, who has a history of awful sexist, transphobic, discriminatory scholarship?
You can’t. Not only is that not being a leader and advocate for women’s soccer, it’s regressive, discriminatory politics and worse, a failed moral choice.
Hopefully this time, it’s a brand of failed moral leadership that has consequences.
Neil W. Blackmon co-founded The Yanks Are Coming. He is also an attorney and has tried over 30 cases to verdict. Follow him on Twitter @nwblackmon.