The IX: Soccer Monday by Annie M. Peterson for May 4, 2020
The lawsuit, the lawsuit and more about the lawsuit — Links galore! — Legal perspective from Steven Bank
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BUT THE MEN’S TEAM SUCKED!
I think — I know a lot of people had the same reaction when they read Judge Klausner’s 32-page ruling Friday on the motions for summary judgment in the USWNT’s gender discrimination case.
You can read the decision in its entirety here, if you are so inclined. Also, here’s the original lawsuit if you’d like to see it, filed by a group of players led by Alex Morgan in March 2019. They asked for more than $66 million in damages under the Equal Pay Act and Title VII of the Civil Rights Act of 1964.
There are a ton of links here in the AP’s story, which was mostly written by my esteemed colleague Ron Blum, who knows more about labor negotiations in sports than any journalist I know.
I’ve spoken to several legal experts about this case, and I always suspected the collective bargaining agreement was going to be a sticking point. 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 terms structure when they themselves rejected such a structure.”
But it ignores the fact that had the women been in a position to negotiate from a position that the men have always enjoyed — with lucrative professional contracts that largely guarantee financial stability regardless of national team performance — the playing field would different.
The ruling reinforces, essentially, that the women had to win big, including soccer’s top prize in World Cup, just to earn pay on par with a mediocre — at best — men’s team. Caitlin Murray wrote this excellent story — with math! — for Yahoo Sports, that spoke to how the U.S. failing to make the Men’s World Cup in Russia helped the federation here.
Megan Rapinoe emphasized this morning on Good Morning America that the women were never offered the same deal as the men when negotiating their CBA.
The idea resonates with nearly every professional woman I know: We’ve often had to work harder than our male colleagues just for a level of respect, let alone pay. It’s a fight that’s reinforced every single time I get “The Quiz” by some random fella who thinks that because I don’t know the batting average of the shortstop on the 1971 San Francisco Giants team that somehow I’m not qualified for this job.
Perhaps the best conversation I had this weekend was with Billie Jean King. It was mostly off the record, just a chat about equality and sports, with a little bit of mutual appreciation for Sabrina Ionescu thrown in.
But in general she pointed to the “waves” in the fight for equal rights. A big wave was Title IX. The USWNT’s lawsuit, and the fans at the World Cup chanting Equal Pay was another. Along with waves come troughs, though, the setbacks along the way.
Just because the players seemingly lost this round, it’s not over. It was just a small blip in the overall conversation.
Oh and Joe Biden had this reaction. Hmmmm.
One more quick breaking news item on Monday. NWSL following MLS’ lead here:
And with that, I’m on to the links. Obviously, because of the case, there’s a lot of them. Hope everyone is staying healthy. Wear those masks! We all matter, from the youngest and healthy, to the oldest among us, and everyone in between.
(Reminder: First, the underlined words are the links. Second. CLICK these, even if you’ve already read them. ESPECIALLY NOW, as newsrooms are forced to make difficult choices. Clicks = Attention from editors, producers and webmasters. Third, if you want to push out stuff you’ve written or read, email me! firstname.lastname@example.org.)
Alright, so there have been a lot of folks that weighed in on this issue, some good, some bad. I couldn’t include them all, but here were my favorites:
Charles Boehm opines that the USWNT may have overplayed its hand, for Soccer Wire.
Meg Linehan wrote about the case for The Athletic, drawing on her really amazing depth of knowledge about the subject. Seriously, Meg alone is worth the subscription to The Athletic. But you also get a lot of great content about other sports too!
Michael McCann takes a look at the case for Sports Illustrated.
The excellent Kelsey Trainor weighed in on the future of the case for The Equalizer.
USA Today’s Nancy Armour with a smart take on how US Soccer has already lost. This pretty much mirrors my thinking, but Nancy says it better.
And Jane McManus is ALWAYS awesome. Just this phrase from her story: “a U.S. women’s national team so used to winning faced a stinging defeat.” Geez I wish I had written that.
Sally Jenkins, you guys! Weighing in for The Washington Post.
Andrew Das of the New York Times asks the question: Can the USWNT and US Soccer find peace? And the photo of Megan Rapinoe doing the McKayla Maroney face is excellent.
It was just last Wednesday that FIFPro released its report on women’s soccer globally. Really interesting stuff, even though in the wake of the week it was overshadowed by the ruling. Here’s my story. And here’s the report in its entirety if you’d like to see it. It would be interesting to compare and contrast FIFPro’s report with the FIFA report on women’s football released last summer.
Meg Linehan also looked at the FIFPro report here.
Tweet of the week
So there were a lot to choose from, but notably Tobin Heath, who is usually quiet on Twitter, weighed in. Oh, and don’t look through the replies too closely. Can I rant on one thing? I wish CBS Sports would take down that incredibly misleading story about the boys team in Dallas beating the USWNT. I get it thrown in my face all the time, and it’s just stupid and incorrect.
Five at The IX: Steven Bank
Steven A. Bank is a professor at UCLA’s School of Law. He’s been following the case closely, and some of you may know him from Twitter, @ProfBank. I spoke to him about his thoughts following the judge’s ruling. We talked about the possibility of appealing the summary judgment.
So the skinny is that the players would have to ask Judge Klausner for an interlocutory order, which is an order in the middle of the case to stay the case while appealing the summary judgement.
Annie: Does that happen often? Do judges do that?
Bank: Well, so the short answer is, they don’t they often grant interlocutory appeals. It’s like, `Why not get everything done and then you can appeal something and come back.’
I think this is a case where it’s particularly appropriate for an interlocutory appeal because the judge wouldn’t want to have a trial on these narrow issues that are left, and then have to come back and have another trial — if the appeal is successful. If the summary judgment was reversed, then they have another trial. So that wouldn’t make much sense. So my guess is it will be granted, but it does take some time to do that. And the judge could say no, and they could appeal that order. So that it would be like an appeal just on the question of whether they should have been granted the permission for the interlocutory appeal. So I think it will happen, but it is not an automatic.
Annie: OK, so big picture, this isn’t even close to being over.
Bank: Oh, no, not at all. So if they grant that, and right now everything’s a little more delayed than normal anyways, because you can’t have in-person hearings and all of that. Then if they file a notice of appeal with the Ninth Circuit, if you if you look at the Ninth Circuit’s own guidelines, from the notice of appeal date, the average case takes 12 to 20 months to get to an a decision. That’s just a normal appeal, that’s pre-COVID-19, which could delay things. … That’s that’s just to give you a sense, it could be a year or two before you got a decision on appeal in this. For some of these players, that could be the end of somebody’s career by the time this gets decided.
Annie: Was this ruling surprising to you and how strong is the actual case that the women have to even appeal this decision?
Bank: So I was expecting some kind of a partial grant of summary judgment and partial denial on both sides. It wasn’t because I had some specific issues that I thought they were going to lose or one they were going to win on. But frequently, judges will do that in order to narrow down the issues, but because it also spurs the parties to settle by essentially using a heavy hand and saying, `Hey, a lot of these things you have is fluff, so lets get rid of this, and neither of you have as great as case that you think you do.’
So I’m not surprised that there was some level of summary judgment granted and some level denied, but I was surprised that the judge came down with what is a fairly complete victory for U.S. Soccer. Even going down to the charter flights as being the one issue that’s out there, but the turf not. So it was pretty complete, that was surprising to me. That does not indicate a decision that was more like winnowing down or narrowing down the issues and trying to induce the parties to settle. That seems like just about a victory for U.S. Soccer.
Having said that, from the very beginning, I was interviewed about this and we’re talking back down to 2016 when the EEOC complaint was filed, this case was a tough case. First of all, there are not a lot of Equal Pay Act cases filed. There are discrimination cases, Title VII cases for sure. But the Equal Pay Act is difficult to win on, for a variety of reasons. But this case is particularly tough and particularly complicated because you’ve got two unions who negotiated separately. They have separate collective bargaining agreements. The decisions made on those collective bargaining agreements are coherent and plausible.
In other words, it’s not just like the women asked for one thing and were denied but when the men asked for it, they were given it. They asked for different things. You can see that in the recitation of facts in the summary judgement ruling. The women wanted higher bonuses, but they also wanted to guaranteed pay. The men didn’t want to guarantee pay or at least we don’t actually know if they ever negotiated for that. But the fact that one had guaranteed pay and one doesn’t helps explain why one has lower bonuses than the other, at least to start. Right? So that makes it a very difficult case because not only are you dealing with the problem of how much deference you give to the decisions of the unions in these cases and the collective bargaining agreement, but you’re also dealing with how do you value, or how do you measure risk tolerance? That’s really what that’s about.
Even the discussions about, I’ve seen over Twitter, `The men made this, the women made this.’ That’s not even really the right way to think about it. That’s because the women were a group. Everybody under contract for the year made this salary. The men, it was just when you were called in that month. They went over averages, but there are plenty of men who were not getting called in enough to make barely anything. … So, there’s a lot more risk on one side than the other. And that makes it really difficult to to compare them and say one is more than the other. I thought this would be a case heavily dependent on the experts who would look at how we value these things.
Let me put it this way: If you were going to do an equal pay test case in America, this would be probably one of the worst cases to pick.