No, the WNT didn’t lose in court because the MNT lost in Couva

The court ruling that decimated the U.S. women’s soccer team’s lawsuit had a peculiar irony that didn’t escape the sharp eyes of many who read the case: The women’s earned more than the men, not just over the course of five years but per game, because the men failed to qualify for the World Cup and therefore missed out on a ton of bonus money. And that fact was Point No. 1 in the decision.

Image by Mdesigns from Pixabay

Yes, that could be another verse for Alanis Morissette to consider.

No, it didn’t cost the WNT the case. It just saved Judge R. Gary Klausner a bit of time. “The Court need not address the remaining elements of Plaintiffs’ prima facie case,” Klausner wrote, surely with a sigh of relief that he didn’t have to delve into anything more complex than that.

Both sides presented plenty of hypotheticals; e.g., whether the MNT would make more under the WNT deal or vice versa. This period of time just gave the judge a scenario that he couldn’t dismiss as implausible — because it actually happened.

In any case, a lot of analyses are overlooking the more damning part of Klausner’s ruling. The women willingly traded higher bonuses for greater stability. They can’t turn around and complain that they would have been paid more under a deal they didn’t actually want.

That fact also saved Klausner some time. He didn’t have to walk through the four-part test of the WNT’s legal burden that Elon professor Andrew Haile, a former Davidson soccer player, spelled out in an Oregon Law Review piece. Klausner only really addressed No. 2: Rate of Pay.

The judge didn’t deal with No. 1: The “Same Establishment,” on which U.S. Soccer had a legitimate argument that the MNT and WNT “effectively operate in different markets,” as Haile said. Nor did he address No. 3: “Equal Work,” on which Haile was more bullish on the WNT winning. The USSF had plenty of sound arguments on No. 4: Pay differences for reasons “Other Than Sex” — including revenue generation.

Here’s where we find another irony, one that acts as a bit of a counterweight to the first one. Yes, the men’s failure to qualify for the World Cup suppressed their pay. But it also suppressed the team’s revenue, which had been running well ahead of the WNT’s in the years before this all started in 2016. (The exception was a World Cup year, but that difference hardly made up the differences in 2011-15.)

So if the case had gone to court back when the EEOC complaint that became this lawsuit was filed in 2016, before the men’s disastrous World Cup qualifying campaign, U.S. Soccer would have had that much stronger of an argument that the disparity is due to reasons “other than sex”: Just look at the revenue.

That’s not necessarily fair. U.S. Soccer is a nonprofit charged with growing the game in the United States. That’s why it pays for things like Paralympic soccer and development programs that are guaranteed to lose money. They should be supporting women’s soccer even if they lose money. (In the strictest sense, they do, but the women’s team certainly helps bring in the sponsorship and marketing money that is by far the biggest revenue-driver in the USSF budget.)

Which brings us back to the point you’ve seen from so many knowledgeable people in women’s soccer such as Andrew Das, Kelsey Trainor and Julie Foudy: Any more progress the women make will be made at the negotiating table that they’ve avoided for a while. (It’s certainly possible that U.S. Soccer made that table unpleasant at times.)

So the suit may have served a purpose beyond any settlement the WNT may get on the remaining points on support for the team aside from paychecks. That’s the conclusion of Caitlin Murray, who literally wrote the book on the WNT and points out that the suit sparked a strong wave of public attention and pressure that has forced U.S. Soccer to address a few issues already.

Unless the women appeal, which would be an appalling decision akin to when MLS players — also represented by Jeff Kessler — dragged out their case two unnecessary years, everyone has a chance to avoid embarrassing situations.

The WNT can avoid having their case picked apart in court. They can avoid having Meghan Klingenberg, Kelley O’Hara and union chief Becca Roux called by the Federation, which found items in their depositions that they believe favored their side.

The Federation can avoid the optics of cross-examining beloved celebrities. Even if they’re not asking the insulting questions about skill and physical abilities that prompted USSF President Carlos Cordeiro’s resignation and an abrupt reshuffling of their legal team, USSF lawyers surely would love to avoid questioning Alex Morgan (pending pregnancy) and Megan Rapinoe while journalists who don’t know the details of the case sit with poised skewers.

And the Federation finally has the opportunity to wriggle out of a situation it created by accident — an MNT contract with World Cup bonuses they’ll never need to pay the men and can’t afford to pay the women.

The MNT won’t like hearing this, but World Cup bonus money is the whole reason the Federation is in this mess. When U.S. Soccer agreed to a deal that would pay the MNT north of $25 million if they won the Cup, a significant but not overwhelming chunk of FIFAs $38 million prize money, they didn’t anticipate that the women would see the same money, which would have given the Federation a loss of more than $20 million on FIFA’s laughable $4 million prize money for the Women’s World Cup.

In Australia and Norway, the federations have reached “equal pay” deals because women accepted equal percentages of prize money, not equal payouts. The USWNT certainly wouldn’t have accepted that calculation in their request for back pay. U.S. Soccer probably would have.

FIFA has pledged to double the prize money for the 2023 Women’s World Cup. But unless they double that figure and then double it again, we’ll still have a large disparity in the winnings available for the MNT and the WNT.

Everything outside the World Cup bonuses can and should be as equal as possible. U.S. Soccer might not accept the argument that the SheBelieves Cup would be as important as the Gold Cup or Copa America if only they asked FIFA to recognize it as such, but the details aren’t impossible to work out.

Seriously — the women made that argument about the SheBelieves Cup. If you want another bit of irony, just bear in mind that U.S. Soccer created that competition for the sole purpose of boosting the women’s game.

And that’ll give us one last opportunity to look at the women’s court filings and see the contortions their lawyers made. These are from the Plaintiffs’ Statement of Additional Genuine Disputes in Support of Their Motion for Partial Summary Judgment:

Disputed that the “results of friendly matches, such as those in the SheBelieves Cup or Tournament of Nations, are not as heavily weighted in FIFA’s team rankings as those in non-friendly competitions such as the Gold Cup, Copa America, or the FIFA Confederations Cup.” This purported “fact” is only Mr. Gulati’s opinion.

Sunil Gulati would need very little time to produce the documents backing up this “opinion.” Actually, the women also get more heavily weighted rankings from continental competitions than they do from the SheBelieves Cup.

Disputed that “in the world of international soccer there is more prestige involved in winning an official continental championship, such as the Gold Cup or Copa America, than winning a friendly tournament such as the SheBelieves Cup or Tournament of Nations. This additional prestige results from factors such as the number of participants in the tournaments, the fact that the continental championships are continental championships in the first place (and not friendly matches), the fact that they include knockout rounds and a final match, and the comparative age of the tournaments.” This purported “fact” is only Mr. Gulati’s opinion.

Good luck disputing that in court.

USSF has acknowledged that it has not attempted to register the SheBelieves Cup and the Tournament of Nations, tournaments it hosts, with FIFA, and that FIFA’s recognition may not be needed.

What does that even mean?

How much money did both sides have to pay their lawyers to come up and refute such ridiculous points? Billable hours aren’t cheap.

The women might not get as much back pay as they wanted. But we can turn to the future and figure out how to solve this.

Let’s go back to Julie Foudy again for her solution: Pool everything together and split it …

The arguments against:

  1. If the MNT made a decent World Cup run, they’d end up making less money than they would under their own deal.
  2. Each team, likely within each union, would need to figure out how to split their money.

The arguments for:

  1. Figuring out how to split that money within each team may be a good thing. In the WNT, we’d have to hope they do more to get money to more people in the talent pool. As it stands now, the difference between being the 23rd player and being the 27th player in the pool can be the difference between a solid six-figure payout and the need to find a side hustle.
  2. One Nation, One Team. While the MNT union has mastered the art of being performatively woke in its statements backing the WNT, even though a $66m payout to the WNT — especially given the COVID-19 budget cuts — would effectively kill any hope they have of getting a raise in the new deal to replace the one that expired 16 months ago, there’s a rift between some MNT fans and WNT fans. Shockingly, bashing the MNT apparently didn’t sit well with a lot of supporters. Split the pot equally, and then every MNT success helps the WNT and vice versa.
  3. No more lawsuits. Equal pay. Surely no more strike threats either. As revenue increases, player pay would increase as well.

So if you’re looking for a way to inspire the next generation of women’s players, make a deal that ensures labor peace and equal pay (however they can define it) now and down the road. And try to leave a bit of money to develop the younger players who’ll form the generation after that.

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