On The Case

U.S. Soccer’s new defense in equal pay case: Blame the women’s union

(Reuters) - The U.S. Soccer Federation has not had an easy time of it in gender discrimination litigation with members of the women’s national team. Last November U.S. District Judge Gary Klausner of Los Angeles certified a class of about 50 players to pursue claims under the Equal Pay Act and Title VII of the Civil Rights Act that the federation systematically paid women less than their counterparts on the men’s national team. Judge Klausner, as I told you, rejected U.S. Soccer’s “absurd” theory that the women can’t litigate as a class because stars of their team out-earned top players on the men’s team, reminding the Federation (and the world!) that it’s discrimination when women have to work twice as hard men or achieve twice the success of their male colleagues, to receive equal pay. Even the union representing the men’s nation team put out a statement earlier this month decrying U.S. Soccer’s discriminatory policies.

In a summary judgment brief filed last week, the Federation said it’s time to change “the public narrative surrounding this lawsuit.” The real issue, according to U.S. Soccer, isn’t whether women on the national team were paid the same as men. Not that the Federation is conceding that point: Its lawyers at Seyfarth Shaw continued to argue that in the relevant time period, beginning in 2015, U.S. Soccer actually paid the women’s team more, in total, than it paid the men’s team. U.S. Soccer also argued that men and women on their respective national teams aren’t actually doing the same work because male players have to be faster and stronger and face more rigorous competition.

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But the Federation’s new brief argued that even if the women can show that they were paid less for equal work, they can’t blame the disparity on sex discrimination. Instead, according to U.S. Soccer, the women should lay responsibility for their pay at the feet of their own union, which negotiated a collective bargaining agreement that traded potential bonus money for perks like paid childcare and salary guarantees. “Having made all these choices in contract negotiations,” the Federation’s brief said, “plaintiffs cannot plausibly contend that their compensation arrangement reflects sex discrimination rather than the result of compromises made during collective bargaining.”

U.S. Soccer’s collective bargaining expert, former National Labor Relations Board chair Philip Miscimarra of Morgan Lewis & Bockius, backed the Federation’s argument in a report that said the women’s agreement reflects the tradeoffs and compromises underlying all labor accords. Because the men’s team negotiated an entirely separate agreement reflecting different priorities, Miscimarra said, it’s “extremely difficult to conduct any kind of meaningful point-by-point comparison” between the two contracts.

In other words, U.S. Soccer’s new narrative is: Don’t blame the Federation for any pay gap between men and women on the national teams. Blame the women’s union, which chose different priorities than the union representing players on the men’s national team.

That new storyline, according to the women’s lead lawyer, Jeffrey Kessler of Winston & Strawn, is pure desperation – and legally untenable, to boot. Employers, he said in an interview, can’t hide behind collective bargaining agreements to engage in illegal pay practices. “Imagine if an employer wanted to get around minimum wage laws and said, ‘Well, the union okayed it,’” Kessler said. “The law does not allow this.”

The women’s Feb. 20 summary judgment brief fleshed out Kessler’s point. Equal Pay Act regulations, it argued, specifically say that collective bargaining agreements are not a shield against pay discrimination. And the U.S. Supreme Court, the brief said, has held in 1974’s Alexander v. Gardner-Denver and 1982’s United Mine Workers v. Robinson that Title VII rights can’t be waived in collective bargaining agreements. “All employees who are the victims of discrimination agree to the pay that they receive and it is no more a defense to argue that a union agreed to accept less money on the basis of gender (because that was all it could get the employer to agree to) than it would be to argue that a union agreed to accept a salary at less than the minimum wage,” the brief said.

What about the Federation’s expert, who opined that the women’s agreement is “consistent with federal law”? In a motion to exclude the Morgan Lewis partner’s testimony, the women’s team argued that Miscimarra reached the wrong legal conclusions – and, moreover, that by offering an opinion about the legality of the CBA, he exceeded his authority as an expert witness. “In short, the legal opinion testimony of Mr. Miscimarra is inadmissible both because it instructs the jury on the law — which is the province of the court, not an expert — and because it does so in a manner which is legally incorrect, highly misleading and certain to lead to juror confusion,” the brief said.

“You don’t get to have another lawyer to make legal arguments as an expert,” Kessler added in our interview. “The judge decides the law.”

Kessler said U.S. Soccer has resorted to blaming his clients’ union because the federation has run out of alternative arguments. He said Judge Klausner has already tossed aside defense arguments that the women’s team was paid more, in the aggregate, than the men’s team. And the Federation’s insistence, he said, that male and female players aren’t doing the same work rests on precisely the discriminatory sex stereotyping that Title VII is supposed to prohibit. “In most discrimination cases, the discrimination is not so clear,” Kessler said. “So they’ve had to get creative.”

U.S. Soccer’s lawyers at Seyfarth Shaw referred my request for comment to the Federation, which said in an email statement, “Women’s national team players are paid differently because they specifically asked for, and negotiated, a completely different contract than the men’s national team, despite being offered, and rejecting, a similar pay-to-play agreement during the past negotiations. Their preference was a contract that provides significant additional benefits that the men’s national team does not have.”

I’ve said before that the celebrity of the women’s national team has made this litigation a landmark for women’s rights to equal pay. The complication of a collective bargaining agreement negotiated by a union that represents only women is unusual, to be sure. But the women’s argument that labor agreements don’t justify illegal discrimination has broad implications. I’m eager to hear what Judge Klausner has to say.

Trial in the case is scheduled for early May. The women are seeking more than $67 million in actual damages, plus punitive damages.