Women’s Team Settlement Shows Progress and Complexity of Legal Battle

In this July 7, 2019, file photo, United States’ Megan Rapinoe, left, talks to her teammate Alex Morgan, right, after winning the Women’s World Cup outside Lyon, France. (AP Photo/Alessandra Tarantino)

LOS ANGELES (CN) — The U.S. women’s soccer team’s settlement of claims against their governing federation of inequitable working conditions represents a breakthrough in the parties’ long running legal battle, but experts said Wednesday the path to resolving remaining equal pay claims is riddled with complexity.

The U.S women’s national team players — holders of the Women’s World Cup trophy — filed a gender discrimination lawsuit in March 2019 against U.S. Soccer Federation claiming women would have earned more compensation under the men’s national team’s pay structure.

Women also say in their lawsuit the federation deprives them of the expensive charter flights and hotel rooms and superior medical and training staff provided to the men’s team.

The federation has argued in court papers both national teams operate under separate collective bargaining agreements and that many women’s contracts are supplemented by their salaries in professional domestic soccer leagues.

In May, a federal judge in Los Angeles struck a blow to the players’ claims when he granted the federation summary judgment, finding the women earned more in cumulative pay under the work contract they collectively bargained for.

But both sides announced Tuesday a proposed settlement over players’ inequitable working conditions claims, with the U.S. governing body agreeing to provide hotel accommodations, charter flights and professional training and support staff that is on par with what the men’s national team is provided.

The agreement means the claims won’t be put to trial, which had been scheduled for next month.

Susan Estrich, professor of law and gender discrimination at the University of Southern California, said in an interview Wednesday the proposed settlement represents important progress for the world of womens’ sports.

“It may sound like small things but they’re rather large things when you’re living on the road,” Estrich said of players’ working conditions. “Quality of life matters and it matters in terms of performance. They would never treat an NBA player that way.”

But the equal pay claims remain unresolved, having not been covered in the proposed settlement.

“It was not a good day for equal pay,” Estrich said. “Women’s soccer, unlike a host of other women’s sports, has already captured the affection and attention of people who probably never watched women play anything. Now the federation is saying, ‘You can have a nice flight and stay in a nice hotel, but you come home to small paycheck.’”

The federation did say Tuesday it agrees to select match venues that have natural turf, not the artificial surfaces that women have said for years are the cause of injuries and represent a step down from professional level fields men play on.

Final approval of the settlement will be decided next year by U.S. District Judge R. Gary Klausner.

The path to resolving wage discrimination claims is entangled by prospective court rulings and hopes that a settlement is still possible.

The womens’ attorneys indicated they will now appeal Klausner’s summary judgment ruling from May while continuing to seek millions in back pay.

U.S. Soccer president Cindy Parlow Cone, a former national team player, told reporters Tuesday the women’s team rejected a contract offer that matches the men’s terms and that paying the requested $67 million in back pay would likely bankrupt the organization.

But if the federation — with the winds of a summary judgment victory at its back — prevails on the Ninth Circuit appeal, they could negotiate a reduced settlement with players, said Gina Miller, employment law attorney at Snell and Wilmer.

“The federation is negotiating from a position of strength and they’re not incentivized to pay a lot to settle the case,” Miller said. “That changes if the Ninth Circuit reverses but I’m sure the federation put a dollar figure on that risk. They’re basically willing to roll the dice.”

Miller told Courthouse News the optics of a federation victory on the women’s Ninth Circuit appeal could play out adversely for them in the court of public opinion.

“A win legally doesn’t necessarily mean a win publicly in the eyes of the public,” Miller said in an interview Wednesday. “That will make your business successful in the long run; how the public views you.”

While a victory for women — both a successful appeal and a ruling from Klausner ordering a massive payout — would be celebrated, a U.S. Soccer bankruptcy triggered by a payout could impact long term development of the sport, Miller said.

The federation faced criticism earlier this year after claiming that women’s national team players should earn less money because their game requires less skill, responsibility and ability than the men’s game.

Current compensation levels are fair because the U.S. men’s team is “bigger, stronger, faster” than the women, the federation said in court papers. The claims drew heavy criticism from current and former professional soccer players.

The federation’s former president Carlos Cordeiro resigned from his post shortly after and the federation removed the argument from the case.

Months later, President-elected Joe Biden, then a candidate for POTUS, weighed in on the issue.

“To @ussoccer: equal pay, now,” Biden tweeted. “Or else when I’m president, you can go elsewhere for World Cup funding,” referring to the 2026 men’s World Cup in the U.S., Mexico and Canada.

Marc Edelman, law professor at Baruch College, City University of New York, noted Wednesday the federation’s actions come as the incoming Biden administration is showing its commitment to racial and gender diversity in leadership.

“Given that the U.S. government, as a technical matter, could rescind the governing authority that has been granted to any Olympic governing body, including U.S. Soccer, the leadership of U.S. Soccer probably wants to tread very carefully to ensure there’s not even a lingering suspicion of unequal treatment between female and male athletes,” Edelman said in a phone interview.

“Don’t you think it’s at least a bit surprising that almost immediately upon the election of Biden U.S. Soccer began singing a different tune on gender equity?” 

The Biden administration may bring more scrutiny to equity and safety matters within U.S. governing bodies for sport, including scandal-plagued USA Gymnastics, than the Trump administration has, Edelman said.

Joshua Gordon, a sports business and law expert at the University of Oregon, told Courthouse News the proposed settlement shows both parties actually agree equal pay claims should be resolved but haven’t found the mechanism for doing so.

“There’s probably an agreement about pay, but no path to get there,” said Gordon, an arbitrator for the Court of Arbitration for Sport. “They can continue to let it play out in court, but both sides lose a little control of destiny if they do that.”

A decision ordering back pay could bring financial harm and damage the “ecosystem” of U.S. soccer development, Gordon said. “I don’t think there’s a whole lot of bluffing here.”

But that ruling could also allow both parties to seek help from a third party, and that support could come from Congress, Gordon said.

“I’m not reading that they’re running to court because they disagree but because one side doesn’t know how to resolve it,” Gordon said. “If backpay is forced upon both parties because of a court ruling, that might compel Congress to act.”

Senators Dianne Feinstein, D-California, and Patty Murray, D-Washington, introduced a bill last year that would require every sports federation or governing body in the U.S. to implement an equal pay policy for their athletes.

Under the Athletics Fair Pay Act, equal pay will be mandated by law, including for all Olympic and amateur athletes.

The bill updates the Ted Stevens Olympic and Amateur Sports Act and requires national sports bodies to pay female athletes equally and to report annually to Congress on efforts to end pay discrimination.

Feinstein also joined other lawmakers last year in introducing the Even Playing Field Act, which would require equitable working conditions for U.S. national team athletes and coaches.

Feinstein did not immediately respond to a request for comment on Tuesday’s proposed settlement or whether she would introduce additional legislation relevant to equal pay for athletes.

The women’s national team has won three World Cup tournaments, four Olympic gold medals and is currently ranked number 1 in the world by soccer’s international governing body.

Meanwhile, the men’s national team failed to even qualify for the 2018 World Cup tournament in Russia and have never won the international competition.

The federation has said in court filings that World Cup organizer FIFA — soccer’s global governing body — shares the blame for vastly smaller cash prizes for women national teams who clinch the coveted trophy.

The women’s collective bargaining agreement expires in December 2021 while the men have operated without a contract since 2018.

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