When the United States women’s national team suffered a major setback in its gender discrimination lawsuit against the U.S. Soccer Federation, it surprised people who had followed the case closely.
It’s not that the USWNT was expected to win, but given the high-profile nature of the case and the nuances involved, it seemed likely it would at least go to trial.
Instead, on Friday a judge gave the green light for a dispute over travel accommodations to go to trial, but batted down the USWNT’s claims of unequal pay, ruling in U.S. Soccer’s favor. The judge determined that the women were actually paid more than the U.S. men’s national team, and that comparisons to what the women would’ve earned under the men’s contract weren’t valid.
The judge’s decision was far more sweeping than experts following the case expected, and now it leaves plenty of questions behind. Yahoo Sports reviewed legal documents in the lawsuit to answer some of the biggest questions.
Was the USWNT really paid more than the USMNT?
When the judge granted a summary judgment in favor of the U.S. Soccer, his decision seemed to hinge on this: The women were paid more than the men and there was no “genuine dispute” about it. The lack of “genuine dispute” simply means there was not conflicting evidence that a jury would need to wade through during a trial, so the judge could use the facts that both sides accepted as true to decide the case without a trial.
Why was there no “genuine dispute?” Because the USWNT’s lawyers didn’t really challenge the notion that the women were paid more per game.
In a review of the documents filed for this lawsuit, Yahoo Sports found that the attorney for the USWNT, Jeffrey Kessler, challenged the inclusion of some of the compensation numbers that U.S. Soccer filed as evidence — but he did so on legal grounds, not factual ones, and he didn’t challenge all of them.
U.S. Soccer, in arguing the women had been paid more, relied on financial analysis that showed the USWNT and its players union had been paid a total of $37.3 million between 2015 and 2019 while the men were paid $21.2 million. If payments for the NWSL and the unions were removed, along with some other comparisons, the USWNT was paid $24.5 million and the men’s team had been paid $18.5 million.
Kessler said that “these comparisons are legally irrelevant” and the court should exclude comparisons of total compensation as evidence. The reason was simple: Just because a woman was paid more overall doesn’t mean she wasn’t paid less for her work. If a woman worked three hours at $10 per hour and a man worked one hour at $20, the woman could have both been discriminated against and been paid more overall.
The legal standard needed to account for rate of pay. But when Kessler had the chance to refute the rate of pay claimed by U.S. Soccer for the men and women, he didn’t.
The same financial analysis that included total compensation also set an average of compensation per game played. In that analysis, the men were paid a lower average per game of $212,639 compared to $236,952 for the women. But in the USWNT’s “statement of genuine disputes” — the team’s chance to challenge U.S. Soccer evidence they believed to be false — they failed to argue the information wasn’t right.
It appears the USWNT’s case hinged on potential compensation and the maximum the women could’ve earned vs. the men. The USWNT side felt that the bonuses offered to players constituted an unfair rate of pay. But the judge didn’t care about that and was critical of using hypothetical scenarios — he was more concerned with how much money had actually been paid out, and he said it wasn’t fair to fragment those payments into isolated elements, such as friendly bonuses only.
The women had been paid more, the judge said, and the evidence showed it wasn’t simply because they worked more. There was no “genuine dispute that WNT players are paid at a rate less than the rate paid to MNT players,” the judge said. Indeed, he added, the women “have not demonstrated a triable issue that WNT players are paid less than MNT players.”
The irony remains that the USMNT helped U.S. Soccer out by failing to qualify for the 2018 World Cup. If they had qualified, they would’ve been paid more, flipping this entire discussion on its head, but that’s just another hypothetical.
Should USWNT's lawyers have used NWSL as leverage?
Reading through the court filings, it’s clear that the USWNT’s lawyers wanted the National Women’s Soccer League to be excluded from any calculations about how much pay the players had received.
The USWNT’s lawyers wrote that “playing for an NWSL team is a separate job from playing for the WNT, and what the WNT players earn for playing for their NWSL teams is not relevant.”
In fact, the USWNT legal team went out of its way to argue that not every player on the team is required to play in the NWSL. That’s true — there is a provision allowing USWNT contracted players to compete in Europe during off-cycle years. But there is a limit to how many USWNT contracted players can exercise this option. It was arguably a bit of a stretch to say USWNT players don’t have a requirement to play in the NWSL, but it was one Kessler and the USWNT legal team made in order to keep the USWNT’s reported compensation as low as possible.
Clearly, this strategy didn’t work. The judge agreed that, even without including NWSL pay, the USWNT had been paid more.
So, what if the USWNT side instead leaned into the NWSL as a factor and sought to include it? Well, it might’ve fixed the per-game compensation argument the judge felt was enough to dismiss the case.
The number of NWSL games in a season — between 20 and 24 — and a relatively small NWSL salary for players — between $62,500 and $72,500 — would have sharply reduced the USWNT’s average pay per game.
According to U.S. Soccer’s own analysis, which the judged accepted, the USWNT was paid $31,699,530 total for playing on the national team and the NWSL, excluding per diem and union payments. So Yahoo Sports crunched the numbers: If that total were to be divided by 111 national team games and 112 NWSL games, that’s a per-game compensation average of $142,150 for the USWNT.
That is easily much less than the $212,639 the USMNT averaged.
It’s certainly not apples-to-apples since the men aren’t compensated by U.S. Soccer for club play at all. But to the extent that the USWNT had to decide whether or not to include the NWSL, perhaps it would’ve helped to attempt the opposite of what they did.
Did USWNT reject the same contract as USMNT?
The judge was emphatic that the USWNT can’t compare its own CBA to the men’s CBA because the women never wanted the same contract. But is that really true?
There’s no evidence that the USWNT was ever actually offered the exact contract as the USMNT.
In fact, U.S. Soccer admits that it offered a pay-to-play structure “similar” to the way the USMNT is paid but “never offered the WNT Players Association the same level of wins or draw bonuses for friendlies” and never offered the same World Cup bonuses, either.
In his ruling in favor of U.S. Soccer, the judge seems to accept that that the USWNT being offered the same general “structure” was merely enough. The judge wrote that the women “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.”
But if the women had been offered the same contract, which would’ve included much larger bonuses for qualifying for and competing in a World Cup, perhaps they would’ve accepted it.
After all, if the USWNT had the same contract as the USMNT, they could’ve made the same amount for simply qualifying for the World Cup as they actually earned for winning the whole tournament: $2.5 million. For reaching the semifinal, which the USWNT has done in every edition of the World Cup, they would’ve earned an additional $15.1 million.
It’s unclear from the documents Yahoo Sports reviewed that the USWNT ever asked for the same contract, however.
The judge said the back-and-forth emails showed the USWNT “was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players.” Indeed, negotiations quickly focused on guaranteed contracts.
Former U.S. Soccer president Sunil Gulati allegedly said offering the USWNT the same World Cup bonuses as the USMNT would “break” the federation, which could be taken as preemptive notice that the USWNT would never get the same contract. But the USWNT’s lawyers disputed that Gulati ever said that and pointed out that U.S. Soccer had a surplus of $150 million at the time.
If the USWNT did want the same contract, that fact is buried somewhere in the thousands of pages associated with this lawsuit, and it could be part of an appeal. Otherwise, it’s too late — the USWNT can’t submit new evidence in an appeal.
Should job performance have been a factor?
When the judge ruled that the women had been paid more than the men by U.S. Soccer, he said it couldn’t be explained away by the women working more. But he completely ignored one crucial element: job performance.
The compensation between the USWNT and USMNT the judge used in his ruling was very close — on a per-game basis, the two teams were paid within $8,000 of one another. But in that time, the USWNT won two World Cups and the USMNT didn’t even play in one because they performed poorly and couldn’t qualify.
The judge indicated in his ruling that he was willing to consider the possibility that the women were paid more because they played more games. That could’ve meant that the women were paid more but were still discriminated against. Again, the judge used the example that if a woman in an office were paid $10 per hour and a man were paid $20, the woman could be paid more if she worked more. But it doesn’t mean there was no discrimination.
The math didn’t support the theory that the USWNT was paid more because it played more games. But there seems to be a fair argument that USWNT players were only paid more because they won more games. That may be a fittingly analogous metric to the hours-worked or games-played metrics.
The USMNT lost about four times as many games as the USWNT did in the period covered by the lawsuit, despite playing fewer games. It’s safe to say job performance had a lot to do with the USWNT being paid more, but the judge didn’t even acknowledge this fact.
The fact that the USMNT’s failure to qualify for the World Cup may have helped U.S. Soccer win its lawsuit shows how flawed the judge’s reasoning may be, and it could come up in an appeal.
Can USWNT equal pay appeal work?
The judge in this case, 78-year-old R. Gary Klausner, doesn’t have an ironclad record of his decisions standing.
The decisions in five out of nine of his employment cases have been reversed by the Ninth Circuit appeals court, and his overall reversal rate is around 27 percent.
Judge Klausner's overall reversal rate is 27.3%, with 59.1% affirmed and 13.6% aff in part/rev in part. Klausner is more conservative than the 9th circuit as a whole, but it's not like he's an automatic reversal pic.twitter.com/yFrgP6rCVg— Steven Bank (@ProfBank) May 2, 2020
Klausner, who was appointed by president George W. Bush in 2002, tends to be more conservative in his decisions than the Ninth Circuit, which has jurisdiction in states across the west coast and Hawaii and is considered liberal.
But that doesn’t necessarily mean the Ninth Circuit is going to want to reverse his decision here.
This case is indeed about gender discrimination, but there’s also a question of the role of unions in labor negotiations. The biggest flaw in the USWNT’s case is that they collectively bargained for the contract they signed after a protracted back-and-forth with U.S. Soccer, and later touted it as a victory after it was signed.
The court may be hesitant to do anything that erodes the autonomy of unions and introduces the possibility that negotiating and signing a CBA doesn’t guarantee so-called “labor peace” between unions and their employer.
How much can the USWNT settle for?
Whether an appeal will or won’t work, this case is still likely destined for a settlement.
The USWNT used financial analysis to argue the team and its former players deserved around $67 million retroactive payments.
In settlement talks, U.S. Soccer hasn’t offered anything near that, with sources pegging the federation’s highest offer at around $9 million.
That was a non-starter for the USWNT at a time when the team had enormous leverage. The court of public opinion has been firmly on the USWNT’s side and, until the judge’s ruling, the possibility loomed that U.S. Soccer would be forced to pay a ton in damages.
But now that the USWNT is on the ropes in this case, will they be willing to come down closer to that $9 million mark?
They will probably have to, but it’s not as if U.S. Soccer is in a position to drop its offer. At the end of the day, the USWNT and U.S. Soccer still need to work together and co-exist, and letting a judge force the resolution won’t help matters.
The two sides need to reach an agreement collaboratively, and they need to reach one that each party can feel OK about. Otherwise, the fracture in the team-federation relationship will be far costlier than any settlement.
Caitlin Murray is a contributor to Yahoo Sports and her book about the U.S. women’s national team, The National Team: The Inside Story of the Women Who Changed Soccer, is out now. Follow her on Twitter @caitlinmurr.
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