if american football aims to convince With the women’s and men’s national teams accepting identical terms in their next SCBAs, the organization continues to defend itself against the class action lawsuit filed by members of the women’s team.
On Wednesday, US Soccer attorneys submitted their 59-page response to the US Court of Appeals for the Ninth Circuit. The briefing was submitted by Melissa Arbus Sherry, a former clerk of the United States Supreme Court who was previously an assistant to the United States Solicitor General, as well as Jamie Wine and other attorneys at Latham & Watkins.
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The letter responds to the players’ opening order, which was: archived in July and written by lawyer Mayer Brown Nicole Saharsky and Winston & Strawn attorney Jeffrey Kessler, along with other attorneys from their offices. Both parties have retained high-level attorneys with deep expertise on the subjects.
The case currently centers On USWNT players’ allegations that US Soccer has violated the Equal Pay Act. The players claim that US Soccer pays USWNT players a lower rate than USMNT players and does so because of gender discrimination. Federal law makes it illegal for employers to pay employees less because of their gender.
The case is restless on two main levels.
First, US Soccer and the players dispute each other’s economic analyzes as to whether USWNT or USMNT players earn more. In awarding a summary judgment from US Soccer on pay issues last year, US District Judge Gary Klausner concluded that USWNT players were paid more than USMNT players, cumulatively and on average per game. USWNT attorneys maintain that Judge Klausner made a mistake in his calculations, specifically neglecting to consider significant differences in performance fees and performance bonuses. They also underline that several groups, including USMNT players, have submitted amicus briefs in support of USWNT players.
Second, the two sides clash over the legal significance of USWNT’s union negotiations over the terms that their players now claim are illegal. Judge Klausner emphasized that the two teams, using their own unions, “negotiated different agreements, reflecting different preferences”. He added that USWNT “explicitly rejected the terms they now want to impose on themselves retroactively.” Until then, the men’s team opted for a system of bonuses, while the women’s team negotiated a system of guarantees. However, USWNT attorneys argue that unions and management cannot negotiate wage policies that discriminate on the basis of gender.
US Soccer’s answer addresses these two topics.
As a starting point, the letter expresses respect for the USWNT and the principle of equal pay. The USWNT calls the USWNT “the best women’s soccer team in the world,” the letter states that the players should receive “equal pay for equal work, as all women should.” The letter states that the disagreement between the two sides rests on “what equal pay means under the law”.
In that light, the briefing reframes the USWNT players’ claim that some or most of their players would have earned more had they been ruled by the CBA negotiated between US Soccer and USMNT. The letter states that “the USWNT deliberately negotiated for a CBA that prioritized guaranteed salaries and substantial benefits over higher contingent bonuses. . . [USWNT players] can now, in hindsight, pursue ‘equal pay’ claims based on a different pay structure that they have explicitly rejected.”
The letter also highlights that “Fifa’s huge prize money gap accounts for more than 90% of the bonus difference at the heart of the plaintiff’s case.” While the letter says that US Soccer is a “strong advocate” of FIFA policy and continues to lobby FIFA to narrow the revenue gap in money awarded to male and female players, “the US Soccer law does not require USWNT- paying players tens of millions of dollars in ghost revenue that it never received.”
The letter further emphasizes that while unions and management cannot agree to discriminate, that issue has surfaced with a union that negotiates on behalf of women and men. Here there are two unions, one for the men’s team and one for the women’s team. The men’s team negotiated a CBA with a “pay-to-play” model, which means — the short-cost — USMNT players’ don’t get a guaranteed salary. They do not receive any benefits. And they don’t have the right to play in a certain number of games. If USMNT players get injured – or if games are canceled – they get nothing.”
Of course, the men’s teams earn six- and seven-figure salaries from club football teams, while female players generally earn much less from their club teams. This creates a greater incentive for the men’s team to negotiate with US Soccer for a higher ceiling/lower floor model. Still, US Soccer argues that dynamics are beyond its control and beyond the scope of the legal issues raised in the process.
Finally, the letter emphasizes that the Ninth Circuit ruling would “counteract federal labor relations policy” for the players. Such a policy generally instructs courts to respect the give and take of negotiations between unions and management and not to alter their choices.
It could take many months for this lawsuit to be resolved. A yet-to-be-named panel of three Ninth Circuit judges will review the case sometime next year. The review will be “de novo,” which means “from the new,” and disrespectful to Judge Klausner. Several months after a plea, the Ninth Circuit will issue a ruling. It could confirm Judge Klausner, which could prompt the USWNT to file a petition with the US Supreme Court, or the panel could determine that Judge Klausner was mistaken. It would then return the case to him with new instructions. Whatever the outcome, the case is likely to go to trial for a while.
Unless the parties agree. The USWNT-US Soccer CBA expires on December 31. While CBA negotiations and the lawsuits are completely separate matters – the former concerns upcoming pay, while the latter concerns disputes over past rewards – it is possible if the two sides talk, they could find a solution to both cases.
With the help of Luke Cyphers.
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