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US Soccer and USWNT players respond to each other’s requests for summary judgment

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You said that I said that you said was wrong, but I’m saying that what you’re saying is wrong.

2020 SheBelieves Cup: United States v Spain Photo by Ira L. Black/Corbis via Getty Images

Following up from US Soccer and the women’s national team players filing motions for summary judgment, both sides have now responded to each other’s filings. There’s not anything particularly new here in terms of arguments - which we’ll get to in a moment - but there is a sense that both sides are wearying of this back-and-forth as their legal documents grow more and more tense.

In their original requests for summary judgment (basically where you ask the court to pick your side before you have to deal with a trial), USSF hammered on a couple of key points, like that they’ve paid some WNT players more total than the MNT, that the WNT asked for the CBA they got so they can’t claim that payment under that CBA is unfair, and that the MNT have different skills (i.e. being faster and stronger than women) that mean they perform a different job from the women.

But to break things down, here’s some bullet points of USSF’s opposition to the USWNT’s request for summary judgment:

  • It is unfair to compare the men’s and women’s different CBAs, and there is strong precedent for courts not interfering in CBA disputes, since it would discourage future negotiations where one party might just turn to the courts to enforce their way instead of actually bargaining
  • There is no actual Equal Pay Act violation; the women never name an “allegedly comparable male employee” with whom they can compare work, and their arguments about being paid at a lesser rate of pay compared to men are cherry-picked arguments
  • The players get paid salaries, signing bonuses, World Cup Victory Tour bonuses, likeness rights, and other things which the MNT CBA didn’t bargain for, and which all add up to the women getting more than the men
  • According to USSF’s own economic expert, the USWNT’s economic expert used flawed methodology for calculating damages, and in fact by USSF’s expert’s analysis, the MNT would have been paid more under the WNT CBA
  • The women don’t work in the same “establishment” as the men because USSF doesn’t actually pick which teams the men and women play, or where (that’s driven by each team’s head coach and GM)
  • Skill is one of the components for comparing two jobs, and for the purposes of soccer, skill encompasses strength and speed, and as the women are not as strong or as fast as the men, they cannot be considered to be doing the same job
  • The MNT have tougher competition, and have greater “responsibility” in their jobs, because they play in more important tournaments that can generate more prize money
  • The MNT’s working conditions are different because they play in Mexico, Central America, and the Caribbean (while the WNT do not), and the MNT often encounter “opposing fan hostility” both on the road and in home crowds “unlike anything the WNT faces”
  • The WNT are asking USSF to make up the difference in World Cup prize money, but USSF cannot afford to do so, nor are they responsible for the prize gap

The WNT’s own response to USSF’s request for summary judgment pretty much stuck to their original points.

  • The court has already told USSF that it doesn’t matter that some WNT players got more total compensation than some MNT players, because the test is the rate of pay, not total pay
  • USSF uses erroneous interpretations around what counts as “establishments” and under the EPA, men and women who have “a common employer who exercises control over both work sites” work in the same “establishment” - it’s not about only working in the same physical location (playing in the same venues/cities)
  • USSF has centralized control over budgeting, financial planning, selection of game venues and logistics, scheduling, marketing, and broadcast/licensing deals and controls the “essential operations” of both the WNT and MNT
  • USSF’s own sworn witnesses testified that WNT players require equal skill, effort, and responsibility compared to MNT players
  • EPA regulations say that just because the WNT bargained for their work situation, that doesn’t mean their pay rate wasn’t still discriminatory, and in fact the WNT did repeatedly ask for equal pay but USSF was unwilling to offer similar bonus and friendly rates
  • As a matter of law, rights under Title VII and the Equal Pay Act can’t be bargained away either, so the existence of a CBA that technically allows discrimination is not a defense
  • Third party payments (in this case FIFA World Cup bonuses) don’t restrict USSF from setting their own World Cup participation compensation, nor do FIFA’s discriminatory behaviors justify USSF’s discrimination
  • USSF’s records show they spent over $4 million more on air travel and hotels for the MNT than the WNT from fiscal years 2015-2020, but the WNT played 30% more matches during this time, which demonstrates there is a genuine issue of material fact supporting claims of working conditions discrimination

The big takeaway here, at least from a fan perspective, is probably that USSF continues to double down on their “biological differences” arguments in order to demonstrate that the men and the women do different jobs. There’s not a ton of new content in terms of arguments, just the various cases and experts they’re citing to back up their positions. Ultimately, it looks like things are headed to trial, and the WNT are raring for the fight, if the statement from their spokesperson is any indication.

“This ridiculous ‘argument’ belongs in the Paleolithic Era. It sounds as if it has been made by a caveman. Literally everyone in the world understands that an argument that male players ‘have more responsibility’ is just plain simple sexism and illustrates the very gender discrimination that caused usu to file this lawsuit to begin with. So looking forward to trial on May 5.”