Did the US women’s soccer team win their ‘equal pay’ case? It’s complicated

While other federations put their prize money back into developing the next generation, US Soccer’s prize money is paying the current players and their lawyers

Perhaps it’s not fair to call the US women’s soccer team’s $24m “equal pay” settlement a Pyrrhic victory.

Let’s instead call it a pyromaniac’s victory. A lot of money was piled up and set on fire.

Thanks to a filing by the US women’s legal team, we can now quantify at least part of that cost: “(T)he Court should award Plaintiffs’ counsel $6.6 million in attorneys’ fees and approve reimbursement of $1,369,127 ($1,319,127 plus $50,000) in expenses.”

According to that filing, the women who stand to collect that settlement are fine with that money – with the exception of Hope Solo, who has not settled a separate lawsuit against US Soccer and has pounced on those legal fees in an effort to block the settlement with her former teammates.

The women’s legal team’s filing includes plenty of self-aggrandizement about the landmark settlement and the collective bargaining agreement that followed, the latter of which was a multiparty conversation that would be at best tangentially related to the lawyers’ aggressive posture. What’s mentioned a bit less frequently is one little detail:

They lost the case.

In the court of public opinion, the women did quite well. The fuzzy math and torturous logic of their legal team’s filings meant little when weighed against an unsympathetic US Soccer Federation, whose own lawyers drastically misstepped with a filing that claimed women have less “ability” than men, a move that precipitated the resignation of tone-deaf federation president Carlos Cordeiro. Few people critically examined the half-truths and outright distortions of arguments in which players making hundreds of thousands of dollars a year were portrayed as paupers who couldn’t afford child care. Such claims were not subject to cross-examination.

In the court of law, the women lost the bulk of their case on summary judgment, a decision that surprised the media but was less of a surprise to lawyers who actually examined the case and sought alternative remedies for the team. The key factor was that the US women had always negotiated not just for a different pay scale but for a different pay structure – many women were on salaries while the men played for bonuses only.

“The WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players,” Judge R Gary Klausner wrote. “Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT’s pay-to-play structure when they themselves rejected such a structure.”

Simply put, when the evidence was put before any critical examination in which the opposition could be heard, the women’s lawyers lost.

In their filing arguing for nearly $8m, the lawyers make a passing reference to the decision, but only to claim that the case was quite complicated: “The legal side too presented novel complexities, particularly on how to understand and apply an equal ‘rate of pay’ when presented with competing collective bargaining agreements involved differing and complicated pay structures. Navigating this key issue, especially with the intricate facts here, demanded “a high level of skill and high-quality work to overcome. … Indeed, this very issue decided summary judgment and became the focus of Plaintiffs’ Ninth Circuit appeal.”

The women’s lead lawyer, Jeff Kessler, has been wildly successful in cases involving sports other than soccer. But he has a track record of losing cases against US Soccer, only to drag them out on appeal.

At least this particular case settled before going back to court, and it’s little wonder Kessler and company want to count it as a win. But how much was spent to get to that place?

The settlement is $22m in back pay and $2m in grants for players’ service to the game after their playing days are done. If the legal team takes an $8m cut, that’s $14m in back pay and the $2m in grants.

Would the federation have settled the case for that much money several years ago?

Perhaps, especially when we consider how much the federation spent on its own legal fees. The federation’s 990 forms show some staggering bills for outside counsel. In the fiscal year ending March 2021, US Soccer paid $9.17m to Latham & Watkins and $3.2m to other firms. The year before, it was nearly $9m to Latham & Watkins. We can’t assume all of these costs went to the women’s suit because the federation is also facing other lawsuits – against plaintiffs also represented by Kessler – but it’s safe to say the federation threw a considerable amount of money to trial lawyers as well as its own in-house counsel, perhaps especially after a reshuffling prompted by the same legal filing that doomed Cordeiro.

US Soccer considered those expenses worthwhile because they were better than a $67m payout. Cindy Cone, the Hall of Fame player who replaced Cordeiro as president, frankly said that such an award would likely bankrupt the federation, and accounting at the time supported her case.

The federation’s bottom line looks better now, thanks in part to punting elite youth development to professional and youth-specific clubs and thanks in part to lower expenses during the pandemic. But the cost of this case and its settlement is still staggering.

And rank-and-file members of US Soccer are angry that so much of the federation’s budget is going toward the elite few, both players and lawyers, to such an extent that they tried to replace Cone with, of all people, the previously ousted Cordeiro. The new collective bargaining agreements that pay the able-bodied national teamers far more than their known peers won’t soothe any raw emotions. Grassroots organizers have asked pointed questions about spending on developing referees, who have literally and figuratively come under attack at several levels of the game, and coaches, who often have to shell out thousands of dollars in fees and travel costs to get advanced licenses.

So while other federations put their prize money back into developing the next generation, US Soccer’s prize money pays the current players and their lawyers.

Maybe Fifa can institute a Legal World Cup one day, and the US can lift the trophy.


Beau Dure

The GuardianTramp

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