U.S. Soccer’s Latest Filing Offers Pathway Forward With Players

To hear U.S. Soccer interim president Cindy Parlow Cone
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speak publicly, you’d never know the U.S. Soccer Federation is engaged in a lawsuit with the women’s national team.

This is not to suggest Cone is being disingenuous. She is a former member of that team who inherited the ongoing litigation, started by the players, over the question of what constitutes fair and equal pay.

“I think a lot of damage has been done and I think we’re going to have to rebuild that trust and rebuild that relationship [with the WNT],” Cone said just last month. “It’s not going to happen overnight. It’s going to take a lot of effort and time and energy from the U.S. Soccer side to rebuild that trust not only with our [WNT] players but with our fans and everyone engaged in the sport.”

And leaving aside the question of whether ongoing litigation is the pathway toward fixing that relationship — or if the latter is even possible to begin without the former getting resolved — it’s led to some odd outcomes, even within the lawsuit itself.

After all, the language used in previous filings brought down a presidency, with Carlos Cordeiro forced out, but as long as the federation is contesting this in court, there needs to be, you know, grounds for doing so. Lawyers are typically hired not for public relations purposes, but for an outcome.

So what can we learn from the latest filings about where that line is? A lot, actually.

No longer is U.S. Soccer making the argument that the players are less skilled, nor that the game they play is less competitive. These were not arguments made by U.S. Soccer to pointlessly denigrate the players, but rather to try and reach a standard of proof legitimizing their decisions on compensation in firm legal ground. So leaving aside the PR or even morality of said arguments, losing them from their legal bag of tricks makes for a thinner overall set of rationales. This, in and of itself, should provide motivation for the federation to settle — lowering its chance of victory in court changes the best way forward, purely from a legal perspective.

Instead, the framework centers around the limitations of what FIFA provides men and women, taking the visual further outside the relationship between the two parties.

“In addition, the specific bonuses U.S. Soccer provides to the teams in most instances is a function of the revenue that each team brings in for those matches,” it says in the most recent filing by U.S. Soccer. “For example, FIFA unilaterally controls the prize money associated with the Men’s World Cup and the Women’s World Cup, and has historically provided significantly more prize money to winners of the Men’s World Cup than to the Women’s. In fact, in 2018, FIFA awarded $38 million to the Men’s World Cup winner, but, in 2019, FIFA awarded only $4 million to the women’s World Cup winner, the WNT. It is this wide disparity—and not any discriminatory act taken by U.S. Soccer—that dictates lower bonus payments to the WNT.”

This suggests that, as part of any settlement, U.S. Soccer would have a pathway toward an ally-ship with the players on working to lobby change within FIFA. Indeed, a combination of finding more compensation and working together on this issue with legally binding set of actions could both help find resolution with the players and begin a roadmap for a closer working relationship.

Where things start to get trickier for U.S. Soccer is in the middle pages. After spending significant time arguing that the men’s team isn’t as well-compensated as the women’s team — a set of facts very much in dispute — the next section argues that the men’s team and women’s team are not comparable.

“The undisputed facts show that the WNT and MNT are both geographically and operationally distinct. The WNT and MNT play in different venues in different… cities (and often different countries), and participate in separate competitions against completely different pools of opponents… In addition, the day-to-day functions and operations of the team are overseen by separate coaching staff, technical and medical staff, and Team Administrators…The head coaches of the WNT and MNT determine who plays on their respective teams, and the teams do not interchange players or compete with or against each other.”

The legal weight of this argument aside, the underlying moral force of this argument runs counter to the very things Cone is saying. Let’s stipulate that the men’s and women’s teams are fundamentally different things for a moment. Any gap in pay between those two entities, therefore, puts a dollar figure on how much more U.S. Soccer values and supports the men’s team over the women’s team. There may be a legal path to victory by arguing this, but there certainly isn’t a satisfying outcome that leads to what Cone is publicly calling for (and which virtually everyone sees as the only tenable way forward), which is labor peace. And it’s deeply problematic on the public relations front.

Interestingly, there’s another mechanism to achieve this beyond settlement talks, and that is the expiring collective bargaining agreement. U.S. Soccer argues that differences between how the men’s team and women’s team are paid come not from discrimination, but compromises in the last CBA.

“Throughout the contract negotiations relevant to this case, the WNTPA consistently demanded terms different from those in the CBA covering players on the MNT,” U.S. Soccer asserts in the filing.

Accordingly, and with dramatically more leverage, the women’s team can both make these demands in a new CBA in 2021, and force U.S. Soccer to own this argument. Should they find broad agreement on this front, though, it can codify in a myriad of ways the new way forward on terms amenable to the players as well.

Ultimately, U.S. Soccer has not back off of its effort to get summary judgement in its favor ahead of trial. Winning in this way, as previously discussed, would not be a victory in any of the real ways the federation needs to resolve this dispute. But there is, it appears, fertile ground for finding common cause, even at this late date, for a settlement that allows both sides to win.