New USSF president Cindy Parlow Cone tries to get equal pay lawsuit back on track

Arguments continue to fly fast and furious between US Soccer and the US women’s national team in their equal pay lawsuit. Now we have further filings in support of both sides’ requests for summary judgment, although with one very key difference for US Soccer: they’ve added new counsel, and Cindy Parlow Cone is at the helm. Their latest filing had attorneys from Latham & Watkins listed as counsel, although the federation’s original firm, Seyfarth Shaw, is still a part of their legal team. Parlow Cone also released this statement to the media just before the filings dropped online, presented below in its entirety:

Last week’s legal filing was an error. It resulted from a fundamental breakdown in our internal process that led to offensive assertions made by the Federation that do not represent our core values.

We are taking a number of steps to address the issue. First, today’s brief, the final filing in a request for summary judgment, excludes the offensive language it contained. That language neither represents my position nor the view of the Federation.

Second, we are transitioning to Latham & Watkins law firm as our lead counsel moving forward. As you’ll see from the brief, it is signed by the Latham law firm and represents the work they have done over the last week.

Finally, we are going to do a comprehensive review of our internal process to better understand how this breakdown occurred and how it can be avoided in the future. I expect that review to be completed shortly.

The last week has been difficult for everyone involved in our sport, especially with this occurring on top of the realities of COVID-19 that we are all enduring at this time. It is our obligation to move quickly to repair the damage that has been done. I am committed to addressing this issue in an honest, transparent and forthright manner.

The WNT is the most successful soccer team in the world. As it relates to the lawsuit filed by the women, I offer the perspective of a former player. I know how important it is for both the Federation and the players to move beyond this and keep working together on what unites us. We only have one Federation and one senior Women’s National Team. We have to work together and move forward in a positive manner toward what I know are mutual goals, growing the game and winning.

We are still hopeful we can find a positive resolution for both sides. I look forward to working with the WNT and all parts of our soccer community to continue to grow the sport and bring us all together.

If you thought this meant USSF was conceding an inch, though, they are not. Their filing continues to assert that some of the WNT players were paid more than some of the MNT, but that even using their “rate of pay” argument, they lose there as well, because if the court includes all of the WNT’s other bargained-for benefits like medical insurance, child care, and retirement plans, then the total value of their compensation is greater than the men’s (USSF has included NWSL salaries in this category of total compensation). And they’ve stuck to their other assertions - that the WNT are operationally distinct from the MNT, that they knowingly bargained for their current financial position, and the MNT have historically generated far more revenue for the federation. USSF also leans on the fact that FIFA gives out far more money for the Men’s World Cup than the Women’s World Cup, and so USSF cannot help if the MNT get their cut of that.

The WNT refute these assertions, of course. They have their own calculations showing the rate of pay is lower for women than men, even including all the fringe benefits. They argue the expert that USSF brought in who said MNT players would have made more under the WNT CBA didn’t compare the situations properly - he calculated what an MNT player would have made if the WNT CBA had been applied to his games, but he applied the rates of a contracted WNT player, when the MNT player he was analyzing wasn’t comparable to someone in that position. If he had compared an MNT player to a similar WNT player, aka someone not on a salaried contract, with no guarantee of a minimum number of games, then he would have indeed made less than he would have under his own MNT CBA.

But of course the bulk of their response was in both refuting and condemning the federation’s earlier sexist arguments about how women are weaker and slower than men, thus justifying different treatment. “USSF does not cite a single fact in the record that a MNT player must run a particular speed or bench press a particular weight in order to qualify for the team. Nor does it cite to any facts establishing that every MNT player met those made-up requirements or that any of the WNT players did not. These facts do not exist and USSF is simply relying on impermissible gender stereotypes as a basis for its wage discrimination,” the team’s lawyers argued. They also point out, “USSF also cannot refute its own testimony that it does not expect the MNT to win major tournaments, but does expect the WNT to do so...thereby putting greater—not lesser—job responsibility and pressure on the WNT players.”

They also point out that, with respect to World Cup prize money, 1) the MNT CBA actually states the players have no claim to that money, since it is USSF’s to do with as it pleases and 2) USSF agreed to give five times as much bonus money to the MNT as to the WNT for World Cup qualifiers even though FIFA does not provide prize money for qualifiers. So when USSF argues “the MNT necessarily has a greater opportunity to generate revenue from that [World Cup] participation than the WNT does from its participation,” the fact that the MNT aren’t contractually entitled to any of that revenue and USSF offered the men more regardless of the prize money means nothing in terms of what the players themselves actually get paid.

However, there is a tiny clause in USSF’s filing that offers the least little glimmer of hope for a more conciliatory approach in the future. It’s a four-word parenthetical in the section about how FIFA offers much, much more prize money for the men’s tournament than for the women’s (italics added): “...the substantially greater revenue historically generated by the MNT, due to the greater worldwide popularity of men’s soccer (at least, to date)—pursuant to which the last-place team at a Men’s World Cup will generate more revenue for a national federation than a first-place finish in a Women’s World Cup.”

It feels like an acknowledgment that the landscape of women’s soccer is shifting, and a hint that USSF and their counsel understand the contextual forces that have shaped the current situation - forces that have ignored, insulted, and actively suppressed women’s soccer for decades. Does it signal that there is an undercurrent of sympathy on the federation’s part, or is it just a little parenthetical nod to the teeth-gritting reality that women’s soccer has been fighting a constant uphill battle while maintaining a rigorous legal defense? Is it reading far, far too much into these four words - is it, perhaps a desperate bid for some optimism while the world seems so grim? If you scoff at the notion of sympathy from the federation, you’d certainly have plenty of precedent on your side. The federation has not given itself much leeway for fans to charitably interpret any of their behavior, and treating any statement with skepticism is completely fair.

For now, it seems that Parlow Cone’s guidance, as well as pressure from commercial sponsors, has pushed back a little bit on the worst of USSF’s legal confrontation. It may not yet be incentive to settle; after all, a court may still find USSF’s arguments convincing. And Parlow Cone’s statement, while conciliatory, could come to naught, particularly without some level of transparency around the review process she mentioned. It may remain prudent to hope for the best, but to expect the worst.