Julie Foudy, a former U.S. women’s national team captain and a driving force behind the squad’s push for equity with its male counterparts in the 1990s, is among those advocating negotiation to mend what she calls “a broken, fractured relationship.” By entering settlement talks, Foudy said, the women would not be conceding defeat but rather extracting the best from the current impasse.
“By settling, you’re not saying, ‘I’m losing’ or, ‘I’m giving in,’ ” Foudy said in a telephone interview. “It’s part of the negotiating process. [The U.S. women] do deserve a lot more and will get a lot more [in a settlement]. There has been so much energy wasted in the fight that we lived for so long. There comes a point where, can’t we not bring the players to the table and get this sorted?”
UCLA law professor Steven Bank, who specializes in business and tax law and teaches a seminar in soccer law, also sees wisdom in settling, noting that U.S. District Judge R. Gary Klausner’s ruling shifted the leverage to U.S. Soccer.
“There is no question that between [last] Thursday and Friday afternoon [following the ruling], the women potentially lost millions of dollars,” said Bank, alluding to the team’s pursuit of roughly $67 million in back pay. “That is the harsh reality.”
Bank said an appeal could take two years or more, with no guarantee of success. Even in victory, Bank added, there’s no certainty that U.S. Soccer, along with many other sports leagues, will be solvent in the wake of the economic crisis triggered by the novel coronavirus pandemic.
Co-captain Megan Rapinoe made clear in the wake of the ruling that the team is receptive to settlement talks.
“I think that we’ve been very transparent about our openness to a settlement,” Rapinoe told “CBS This Morning” on May 4, four days before the team filed its appeal. “Ultimately what we want to get to is something that’s fair and equal, and if that comes in the form of a settlement, we are definitely open to that. I don’t think anybody is dying to go into litigation or go to trial or go through a lawsuit. This has been a very arduous process as players. We’re always open to that.”
The class-action suit, filed March 8, 2019, alleges institutionalized gender discrimination in pay and working conditions relative to the men’s national team. Klausner sided with U.S. Soccer on the issue of pay, noting that in the relevant time frame the women earned more than the men. He also noted that the women chose a pay structure that included a guaranteed salary and other benefits over the option of the men’s pay-for-play model. Given that, he ruled, the women could not retroactively argue their compensation was discriminatory.
Needa Chaudhry, general counsel of the National Women’s Law Center, said she was surprised and disappointed by Klausner’s ruling, disagreeing with the rationale that an employee who accepts unfair compensation waives the legal right to argue it is discriminatory.
“It’s not a defense under the law to say that [an employee] agreed to discrimination,” Chaudhry said in a telephone interview. “It’s not a defense legally, and I don’t think it’s a defense morally.”
Molly Levinson, spokeswoman for the women’s team, echoed that analysis in a statement Friday.
“Equal pay means paying women players the same rate for winning a game as men get paid,” it read. “The argument that women are paid enough if they make close to the same amount as men while winning more than twice as often is not equal pay. … The argument that women gave up a right to equal pay by accepting the best collective bargaining agreement possible in response to the Federation’s refusal to put equal pay on the table is not a legitimate reason for continuing to discriminate against them.”
Klausner allowed the claims of inequitable working conditions related to travel, medical care and training to proceed. A June 16 trial date has been set in Los Angeles.
There are two routes to victory for the team in appealing: a three-judge panel concludes there are enough disputed facts to warrant a trial, or the panel finds the lower-court judge erred in some fashion.
According to Bank, it takes an average of 23 months for an appeal to be resolved in the Ninth Circuit. That could be extended by coronavirus precautions that are likely to prioritize more urgent cases and could delay jury trials. But nothing precludes settlement prior.
U.S. Soccer stated in a March 7 letter to supporters that it offered the women’s representatives “multiple contract options” that included the same compensation as the men for matches controlled by the federation. Subsequent invitations to meet were rebuffed, the letter stated, because U.S. Soccer’s proposal didn’t include compensating the women for the roughly $34 million difference in prize money awarded by FIFA for World Cup participation.
In addition to the women’s gender-discrimination case, U.S. Soccer is also defending itself against two potentially costly antitrust suits. With legal fees mounting and coronavirus precautions canceling revenue-generating games, the federation in mid-April laid off employees and canceled its youth development academy. It’s unclear what will remain in its coffers to replenish grass-roots programs, subsidize the National Women’s Soccer League and pay players once the virus is contained and the lawsuits are settled.
“It was in both sides’ interest to settle this before the ruling came down,” Bank said. “It’s even more so now. Who knows if the NWSL is going to survive? U.S. Soccer could run out of money and declare bankruptcy. All these things are problematic.”
Less than a year ago, the women’s team seemed invincible. In July, a crowd of 57,900 erupted in chants of “Equal pay! Equal pay!” at the conclusion of the team’s 2-0 triumph over the Netherlands at the World Cup final in France. The team returned to a parade in New York and was favored to add another world-beating flourish by claiming a fifth gold medal at the 2020 Tokyo Olympics.
With Klausner’s decision, the legal advantage shifts to U.S. Soccer.
Despite that victory, U.S. Soccer has ample reason to want to settle. Many fans view the federation as discriminating against and disrespecting its most accomplished athletes — the women’s team. The win-at-all-costs language of U.S. Soccer’s court filing — in which the federation defended any inequity in compensation and working conditions by arguing the women played a different game than the men, one that was slower and inherently less stressful — only exacerbated that sentiment.
“U.S. Soccer is actually pretty good at winning these cases, but that’s not really the goal here,” Bank said. “The goal here should be to have a good relationship with their players and to grow the game. You can win in court and lose in every other way.”
Added Foudy: “I think they realize they won, in air quotes, the legal battle from a compensation standpoint. But they have obviously lost public sentiment. They know this was a no-win situation, and they want to settle.”
To that end, U.S. Soccer took a notably conciliatory tone in responding to Klausner’s ruling, issuing a statement that read in part, “We look forward to working with the Women’s National Team to chart a positive path forward to grow the game both here at home and around the world.”
U.S. Soccer’s recent change in leadership also suggests the timing may be right for settlement talks. For the first time, the federation has a female president — Cindy Parlow Cone, a veteran of U.S. national teams who helped the squad to the 1999 World Cup title and Olympic gold medals in 1996 and 2004. Parlow Cone, who took over in March, has declined requests for interviews about the lawsuit.
A potential settlement might include U.S. Soccer’s commitment for greater investment in girls’ soccer and the NWSL, along with improved working conditions and a more amenable pay structure.
Foudy said she believes the way forward is for U.S. Soccer and the men’s and women’s national teams to agree to pool revenue from all sources and, after setting aside a portion for developing young players, coaches and officials, divide what remains equally between the men and women.
“Just put it in one pot, stop fighting about it, and grow the game together,” she said.
U.S. Soccer then could turn its attention, resources and clout to persuading FIFA, the sport’s international governing body, to narrow the disparity in World Cup bonuses: $400 million for men’s teams, $30 million for women.