U.S. Women's Soccer and Equal Pay

Mediation is not binding arbitration.  Remember that.

There was nothing generous or magnanimous about the members of the U.S. Women's Soccer team's agreeing to mediation in its lawsuit against U.S. Soccer to obtain equal pay.  Most courts require mediation, and while judges are supposed to be disinterested parties litigants can tick them off if they do not agree to sit down with a mediator to try to work out there differences.  Secondly, it was a good public relations move.  Most people don't want to be involved in litigation let alone understand it.  By agreeing to mediation before the World Cup took place, the USWNT was sending a message that it was willing to. . . well, what exactly?  Compromise?  Perhaps.  All that we can read into this is that the USWNT was willing to sit down and discuss the strengths and weaknesses of its case with a mediator, who has the job of going back and for the between the parties and trying to hammer out a deal.  Sometimes that works, sometimes it does not.  If mediation does not work, litigation proceeds.

It always has struck me that there is nothing really to mediate and that if the USWNT does not get everything it wants -- and "equal pay" is a broad statement that thus far the USWNT has not defined with precision -- it will litigate its case.  It has every right to do that.  Given the UWNT's success and popularity, it just might win.

But what is "equal pay," exactly?  That is the question that a court will determine, if the parties do not reach an agreement through mediation.  U.S. Soccer added fuel to the fire yesterday by releasing a statement that it is its contention -- if not a fact in their minds, at least -- that it paid the members of the USWNT more than the members of the USMNT over the past years because it paid the women both salaries and bonuses and the men just bonuses.  On paper, the statement looks reasonable.  But, as the USWNT members point out, the contention of U.S. Soccer mixes apples and oranges and thus is contaminated.  U.S. Soccer wants credit for backing the women's league in the U.S. and paying the salaries of the women's club teams; the plaintiffs will argue, vigorously, that the salaries should not be part of the equation because the subject in dispute in court is a narrower one -- the pay they receive as members of the USWNT.

Here are some facts that are good background:

1.  Men's club teams have been around for roughly a century longer than women's teams.

2.  Men's club teams enjoy far greater commercial success than women's club teams.

3.  The revenues of men's club teams far exceed those of women's club teams around the world.

4.  The competition among nations to qualify their men's teams for the men's World Cup is much more difficult right now than the competition among the women's teams, in large part because of a historical emphasis on funding men's national programs and teams over women's national teams (the latter which are much more recent in formation).

5.  The U.S. culturally is ahead of most other countries in women's club and international competition.  Some other countries are catching up fast.

6.  The U.S. culturally is behind in men's club (heck, the MLS's season does not even coincide with that of the major leagues in Europe) and international competition -- and, as to the latter, might never catch up so long as the top athletes in the U.S. are not playing the sport, the "pay-to-play" culture persists and the top U.S. professional players (by the hundreds) are not playing for the top club teams around the world.

7.  The U.S. women's national team has a strong brand in the U.S., so much so that it enjoyed better TV ratings this summer in the U.S. than the men's World Cup did in the U.S. a year ago.  Of course, the U.S. men's team did not qualify for the men's World Cup (which explains to some degree, if not in large degree, why the TV ratings for the men's World Cup were lower).

8.  The U.S. women's national team is a perennial annual force.  The U.S. men's national team blundered and stumbled through its World Cup qualifying in 2019, losing at Trinidad & Tobago in its ultimate qualifying match and thus failing to qualify for the World Cup (U.S. men were in good company -- Italy and Netherlands failed to qualify, too).

9.  The U.S. women's professional league in the U.S. does not enjoy the financial support that MLS does and might founder without the financial support of U.S. Soccer (which includes payment of salaries for players in the league).

All of this will come up in the litigation.  U.S. Soccer has played its hand -- its support for the U.S. women's league should count in the equation that computes the pay of the plaintiffs.  The plaintiffs will counter that only their pay -- as U.S. women's national team members -- should figure into the discussion.

This is where the difference seems to lie.  A mediator will do her/his best to try to find common ground between the parties and a solution to the problem.  But don't bet that this will happen unless the members of the USWNT get everything they ask for.  They have been public about this, and they have been very vocal, putting themselves in a position that to take anything less will be a defeat.

But do the plaintiffs, the members of the USWNT, have to be careful that they can win the battle but lose the war?  Is there more to yesterday's statement of U.S. Soccer than meets the eye?  Is the statement a foretelling of U.S. soccer's arguments in court or a threat?  What is the threat -- that we are supporting a league that has failed to get commercial support and our well is only so deep, so, members of the USWNT, take this to court if you wish and you might win and get your bonuses as USWNT players increased, but we could take away our financial support for your domestic league, either because it has been a bad business proposition or because if we need to pay higher compensation for USWNT appearances we will not have the money to support your professional league in the U.S.  Is that where U.S. Soccer is going?  Would that be a good strategy, or is that a "scorched earth" policy that will set back soccer and women's soccer for years if not decades in the U.S.?

There are two sides to the argument, and both sides clearly are frustrated.  U.S. Soccer should remember an old adage -- you don't always win by being right all the time.  Put differently, if you have too good a deal, the other side will figure it out and get really annoyed.  That time is now.  Good dealmakers understand that a good deal is not getting everything you want and leaving little or nothing on the table for the other side.  And they have a chance, with the right focus and marketing, to propel women's soccer in the U.S. and globally to heights that no women's team sport has ever experienced.  Likewise, they have the opportunity to set it back years, too.

This could be what business people call a "high class" problem.  The key will be to craft a solution that enables both sides to get what they want and maintain their dignity in the process.  That type of solution benefits everyone, especially at a high water mark for the sport.  Nasty litigation battles do not tend to do that.

In the end, it is very understandable that the plaintiffs are doing what they are doing and fighting hard for their compensation.  After all, how can we expect them to battle hard for every ball in the air, every loose ball and every ball in front of the goal if they don't battle hard for themselves and their livelihoods?

Stay tuned.