Neil W. Blackmon
Unless you spent yesterday with all cords and olive branches to the world cut, you know by now that five of US Soccer’s top world champion female players filed a federal complaint Wednesday morning with the Equal Employment Opportunity Commission (hereinafter EEOC). The EEOC is the federal agency that enforces compliance with civil rights laws in the workplace. US captains Carli Lloyd and Becky Sauerbrunn, as well as stars Alex Morgan, Megan Rapinoe and Hope Solo are the named complainants. The complaint alleges that the US Soccer Federation has violated the civil rights of the named complainants, and by extension, those of the US women’s national team, through drastic disparities in wages. There are outstanding, lengthy breakdowns of the math in terms of revenue and budget projections, done here by Grant Wahl of Sports Illustrated here and longtime soccer newsman Jonathan Tannenwald here. These are worth reviewing in detail. This piece will incorporate some of those numbers in ordr to focus more specifically on the legal arguments that should frame the complaint moving foward.
What the Complaint Alleges
Citing budget figures released by US Soccer last month, the complaint alleges that while the US Women’s National team generates similar revenue to the US Men’s National team, the women are in some cases paid less than half the wages that the men are paid, despite doing work that is similar in its nature in terms of the skill required and the obligations, responsibilities and demands imposed. The charts below demonstrate the wage disparities alleged in the complaint.
These graphics capably demonstrate the differences, for example, in what a man receives for an accomplishment like winning or simply playing in a friendly, or being included in the World Cup team compared to a woman. In almost every instance, the man receives significantly more money for an accomplishment that is or is almost indistinguishable in nature.
The complaint also alleges that the US Women’s National Team, on the heels of its third World Cup title and heading into a summer where it once again will be the only representative of the Federation at the Olympic Games, has become the economic engine of the USSF. They allege that their successes means that they with near certainty will smash US Soccer’s revenue projections for the past year and into the following year, as their continued victories draw not simply larger crowds at the gate, but more lucrative sponsorship deals and television revenues. The women make the argument that as such, they should at minimum be compensated for driving US Soccer’s financial growth.
What is the Complaint Seeking
Procedurally, the filing of a federal complaint alleging wage discrimination is seeking only that the EEOC open or begin an investigation into the employer who is alleged to have engaged in the unlawful conduct. This means at present, all the women are asking is that the EEOC conduct an investigation into US Soccer’s wage practices.
In practice however, even to dismiss the complaint, the EEOC will have to conduct some sort of investigation. Should that investigation result in a finding that wage discrimination did occur, the women can seek a host of remedies, including remedial measures, such as a command to the bargaining table with a floor ordered for wage structure, and monetary damages, which can also be remedial such as backpay, or punitive financial damages.
What US Soccer Is Saying
US Soccer released statements yesterday indicating that it was disappointed in the course of action the women had taken and lauding its longtime argument that it has been a global leader in the promotion, financial investment and growth of women’s soccer. A longer, four paragraph statement followed in the early portion of Thursday afternoon. That statement doubled down on the morning statement, arguing again that the USSF had been a longtime leader in the global women’s game and that its commitment to the sport and the women who play it was and is unwavering. The statement cited its commitment to negotiating a new CBA with the players at the end of the year, and referenced federation leadership and support in maintaining the NWSL, the women’s professional league in the US. While there is no question that US Soccer has taken these steps and others listed in the official statement, at no point did either statement from the federation address wage structure.
Perhaps with this in mind, or perhaps because counsel for US Soccer had by Thursday afternoon had an opportunity to at least read through the women’s complain, US Soccer conducted a conference call with a limited number of national US Soccer press Thursday evening. The Yanks Are Coming was not involved in that conference call, but the national press who were took to social media to report what federation President Sunil Gulati and US Soccer lead attorney Russell Sauer told them. Among the critical points:
— Jeff Carlisle (@JeffreyCarlisle) April 1, 2016
This comment part of the USSF effort to dispute the notion that the women are the federation’s economic engine and to suggest instead that the complaint cherry-picked financials from 2 extraordinary years. The main problem with this argument, of course, is that the women simply cited financials provided and generated by US Soccer.
US Soccer also made the argument, through counsel, that the women were now complaining about a wage structure they’d agreed to at the bargaining table.
Sauer: "It quite frankly seems odd that the players are complaining about a compensation system that they insisted upon." #uswnt
— Jeff Carlisle (@JeffreyCarlisle) April 1, 2016
Given the revenue numbers, this argument seems stronger. It suggests that in an effort to acquire guaranteed compensation, or “downside protection,” the women negotiated themselves out of pay for play, financial incentives and upward mobility. These arguments are answerable– for example the women’s attorneys could argue that the notion you should have to foreclose incentives at all to get downside protection that is still lower than the men’s is itself proof of a discriminatory wage structure– but they are solid legal positions nonetheless. This line of argument also attempts to directly frame the wage debate as simply an extension of the current legal dispute over the MOU/CBA to wage structure, an intelligent move by US Soccer’s legal counsel.
So…do the women really want to litigate this?
Certainly the women and their attorneys had the proper bluster yesterday. Represented by longtime sports labor superstar Jeffrey Kessler, of “Deflate-gate” fame, the women kept a unified front yesterday and appeared to have public goodwill on their side as will, with press releases of support coming in from various organizations, from the National Advocacy for Women’s Organization to Hillary Clinton. For his part, Kessler seemed confident, releasing a statement suggesting that the women’s complaint was “the strongest case of discrimination against women athletes in violation of law that I’ve ever seen.”
Behind closed doors, I’m not certain the idea here is to actually seek a judgment or damages. Keeping in mind that my background as an attorney involves civil rights law far more than it involves labor and employment disputes, my initial sense was that they don’t really want to hash this out in court. Instead, the EEOC complaint was an effort to outflank the USSF legally.
Remember, this complaint comes only two full months after the U.S. Soccer Federation filed its own lawsuit against the U.S. Women’s National Team in an Illinois federal court. That lawsuit was filed in anticipation of the U.S. Women’s National Team potentially going on strike. In the suit, the U.S. Soccer Federation sought a federal court order declaring that a memorandum of understanding signed by the U.S. Women’s National Team players association and U.S. Soccer had the legal operation of a collective bargaining agreement. The federation, arguing it feared a strike, wanted a judgment saying that any such strike would be a breach of the MOU, which it felt both parties knew and legally recognized as a CBA. that The players association, again led by Jeffrey Kessler, countered that the memorandum of understanding had less reaching impact, and was not the equivalent of a CBA. That suit is still pending, though many legal analysts feel that U.S. Soccer will prevail.
The idea that this complaint is leverage for CBA negotiations that will happen at the end of the year makes sense when you consider that regardless of what happens in the MOU/CBA litigation, the MOU will expire at the end of the year and the players and USSF will need a new labor deal. The idea that strong PR can be generated by making public the immense wage disparities between the women and men within US Soccer could be valuable at the bargaining table. The complaint could also represent to the USSF that the women are bunkered in, hold a position of strength and are unlikely to give in come time to draw up new CBA terms.
But What if it isn’t about leverage?
The flip side is that the women may think they can lose the debate over whether a MOU functions as a CBA and still win the wage discrimination suit. While it is true that the EEOC is less likely to find unlawful discrimination if there is a CBA– because a CBA would mean that legally the women agreed to certain salary constraints– it isn’t necessarily conclusive. The numbers, after all, are persuasive, and US Soccer will need to defend first its own accounting methodologies cited as evidence of the disparity by the women and then likely offer new calculations that demonstrate either zero disparity or less disparity. Sunil Gulati seemed to hint at US Soccer’s ability to fashion these types of arguments last evening, and more numbers should be expected as the proceedings move forward.
Also worth considering is this, as a move solely about leverage, there is danger for the women.
There is risk in suing the entity you’re about to negotiate a deal with, and if you lose quickly, it is a very short-sighted strategy. The US financial projections cited by the players demonstrate that they have legitimate, objective data points to use at the table in negotiating a new deal, and they could have done that without a federal EEOC complaint. That means if it is about “leverage”, then it is about PR leverage, because the financial data point leverage would have existed with or without the federal complaint.
Further, the women could always strike for leverage. While competitiveness reasons may prevent them from striking prior to the Olympic games, the women certainly could do that, as any ruling on the MOU/CBA is unliklely until after Rio. While US Soccer could seek an emergency declaratory judgment or an injunction to halt the strike prior to Rio, there’s nothing legally US Soccer can do to force the women onto the plane. Further, the US women have articulated concerns over the Zika virus, which are existential considerations beyond financials that would provide leverage in any litigation seeking to force the women to play in Brazil this summer. The women could also strike following the Olympic games. A strike would likely generate incredible pressure on US Soccer, who in addition to its own revenue losses from a strike, would face a hostile public writ-large and likely sponsor outrage, particularly if other rich people, such as NWSL investors, became concerned that their own league and business entities were threatened. These are factors to consider before we write the EEOC complaint off as just another move by Kessler and the players association to generate leverage.
Legal custom suggests the EEOC investigation could take as little as three to four months or longer than a year, with an average dispute resolution time of 10 months per complaint. There is no set timetable but as the investigation proceeds, the EEOC official or officials assigned the case can make recommendations to each of the parties. The investigator could suggest mediation, for example, in an effort to avoid having to make a final determination of reasonable cause. Mediation could include an order to get to the bargaining table faster, and carve out a new CBA or wage structure deal, and if the women were satisfied, it would obviate the need for further EEOC rulings on the complaint.
If no alternative dispute mechanism is successful, then the EEOC investigator or investigators would issue a ruling of whether reasonable cause exists. If they find there is reasonable cause to believe discrimination has occurred, both parties would then be ordered to participate in “conciliation”, which is legalspeak for discussions that seek out a legal settlement of the dispute. If conciliation fails, then the EEOC could initiate a discrimination lawsuit against the United States Soccer Federation. If the EEOC declined to do so, the players would have 90 days from the date the EEOC declined suit to file their own lawsuit. That lawsuit could take several years to resolve, with the catch being that if a new CBA agreeement is reached, it would almost certainly demand that the women withdraw or extinguish any remaining legal claims against US Soccer for the CBA to take effect.
Given the various different ways to resolve the underlying cause of the women’s complaint, the movie/television notion that there will ever be a “verdict” or “ruling” on the complaint seems unlikely. This is perhaps the strongest argument for the theory that the complaint is simply about improving the bargaining position of the women’s player association. But given the strong and hostile position taken up by US Soccer yesterday, these are two sides that appear to be heading farther apart from one another, with time growing scarce.
Neil W. Blackmon is Co-Founder of The Yanks Are Coming. He can be reached at email@example.com or firstname.lastname@example.org and you can follow him on Twitter @nwblackmon.