Sunday, November 28 2021

As U.S. Soccer aims to persuade the women’s and men’s national teams to accept identical terms in their next CBAs, the organization continues to defend itself against the pay equity class action lawsuit brought by members of the women’s team.

On Wednesday, attorneys for U.S. Soccer filed their 59-page reply brief in the U.S. Court of Appeals for the Ninth Circuit. The brief was submitted by Melissa Arbus Sherry, a former U.S. Supreme Court clerk who previously served as assistant to the Solicitor General of the United States, as well as Jamie Wine and other attorneys from Latham & Watkins.

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The brief responds to the players’ opening brief, which was filed in July and authored by Mayer Brown attorney Nicole Saharsky and Winston & Strawn attorney Jeffrey Kessler, along with other attorneys from their firms. Both sides have retained high-level attorneys with deep expertise on the topics.

The case currently centers on USWNT players’ contention that U.S. Soccer violated the Equal Pay Act. The players assert that U.S. Soccer pays USWNT players a lower rate than USMNT players and does so because of sex discrimination. Federal law makes it illegal for employers to pay employees less on account of their sex.

The case is unsettled on two main levels.

First, U.S. Soccer and the players firmly dispute the other’s economic analyses as to whether USWNT or USMNT players earn more. In granting U.S. Soccer summary judgment on pay issues last year, U.S. District Judge Gary Klausner concluded that USWNT players were paid more than USMNT players on a cumulative and average per-game basis. Attorneys for USWNT insist that Judge Klausner erred in his calculations, specifically that he neglected to consider sizable differences in appearance fees and performance bonuses. They also underscore that several groups, including USMNT players, have filed amicus briefs in support of USWNT players.

Second, the two sides clash on the legal significance of USWNT’s union bargaining the terms that their players now contend are illegal. Judge Klausner stressed that the two teams, using their own unions, “bargained for different agreements, which reflect different preferences.” He added that USWNT “explicitly rejected the terms they now seek to retroactively impose on themselves.” To that point, the men’s team opted for a system of bonuses while the women’s team negotiated a system of guarantees. USWNT attorneys, however, maintain that unions and management can’t bargain pay policies that discriminate on account of sex.

U.S. Soccer’s reply brief tackles those two topics head on.

As a starting point, the brief expresses reverence for the USWNT and the principle of equal pay. Calling the USWNT “the best women’s soccer team in the world,” the brief maintains that the players “should get equal pay for equal work, as all women should.” The brief contends the two sides’ disagreement rests in “what equal pay means under the law.”

In that light, the brief reframes the USWNT players’ contention that some or most of their players would have earned more if they were governed by the CBA negotiated between U.S. Soccer and USMNT. The brief argues “the USWNT deliberately negotiated for a CBA that prioritized guaranteed salaries and substantial benefits over higher contingent bonuses . . . [USWNT players] cannot now, with the benefit of hindsight, pursue ‘equal pay’ claims based on a different pay structure they explicitly rejected.”

The brief also insists that “the massive gap in FIFA prize money accounts for more than 90% of the bonus differential at the heart of Plaintiff’s case.” While the brief says U.S. Soccer is a “powerful advocate” on FIFA policies and continues to lobby FIFA to narrow the revenue gap in money awarded to men and women players, “the law does not require U.S. Soccer to pay USWNT players tens of millions of dollars in phantom revenue it never received.”

Further, the brief stresses that while unions and management can’t agree to discriminate, that issue has surfaced with one union negotiating on behalf of women and men. Here, there are two unions, one for the men’s team and one for the women’s team. The men’s team negotiated a CBA with a “pay-to-play” model, which means—the brief charges—USMNT players “do not receive a guaranteed salary. They do not receive any benefits. And they are not entitled to play in any set number of games. If USMNT players are injured—or if matches are canceled—they are paid nothing.”

Of course, the men’s team earn six- and seven-figure salaries from club soccer teams, while women players tend to earn much less from their club teams. This creates a greater incentive for the men’s team to negotiate a higher ceiling/lower floor model with U.S. Soccer. Yet U.S. Soccer contends that dynamic is outside of its control and beyond the scope of the legal issues raised in the litigation.

Lastly, the brief insists that the Ninth Circuit ruling for the players would “countermand federal labor relations policy.” Such policy generally instructs courts to respect the give-and-take of bargaining between unions and management and not alter their choices.

It could be many months before this litigation is resolved. A yet-to-be-named panel of three Ninth Circuit judges will review the case sometime next year. The review will be “de novo” meaning “from the new” and without deference to Judge Klausner. Several months after an oral argument, the Ninth Circuit will issue a ruling. It could affirm Judge Klausner, which might prompt USWNT to petition the U.S. Supreme Court, or the panel could find Judge Klausner erred. It would then send the case back to him with new instructions. No matter the outcome, the case will likely be in court for a while.

That’s unless the parties settle. The USWNT-U.S. Soccer CBA is set to expire on Dec. 31. While CBA negotiations and the litigation are completely separate matters—the former involves upcoming pay while the latter concerns disputes over previous pay—it’s possible as the two sides talk, they might find a solution to both matters.

With assistance from Luke Cyphers.

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