The U.S. Soccer Federation, with its new legal team at Latham & Watkins LLP and a new president, appears ready to settle a pay discrimination lawsuit by players on the U.S. Women's National Team, but experts say a misstep by former lead counsel at Seyfarth Shaw LLP has put the federation at a disadvantage in negotiations and could lead to bigger concessions.
Following an outcry over U.S. Soccer's recent legal arguments that the men have more skill and their competitions are more difficult, the federation replaced Seyfarth Shaw and brought in Latham to lead its defense. U.S. Soccer also forced former president Carlos Cordeiro to step down earlier this month.
His successor, Cindy Parlow Cone, a former women's national team player herself, said on Tuesday that "the comments and the language in the last filing I think not only hurt our relationship with our Women's National Team but hurt women and girls in general." Cone said that mending the relationship with the women's team — and resolving the case to avoid trial — is now a top priority.
But experts say the women's team has the leverage, at least for now, and that any settlement will likely require wider changes to the federation's pay system to address the players' complaints moving forward — especially as the men are poised for a new and potentially more lucrative labor agreement of their own.
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Now the question becomes: What offer will the federation make to the players?
"I think this group is actually looking forward to the future of soccer as well," said Christine E. Webber, a partner in Cohen Milstein Sellers & Toll PLLC's civil rights and employment practice group. "I actually think this a group that will get back pay for themselves but also use this as an opportunity to push U.S. Soccer to do better in the future."
One complicating factor is that the men's and women's teams are represented by separate unions, and the men are playing under an expired collective bargaining agreement. The men's players union has recently come out in support of the women's players, saying the federation should "pay the women significantly more than our recently expired men's deal."
But the union is going to have an interest in pushing for even more pay in the next deal, making equal pay somewhat of a moving target.
U.S. Soccer is also now leaning on the argument that disparities in men's and women's team compensation is attributable to the separate labor agreements, reflecting different priorities among the players. The federation argues that the women negotiated for more guaranteed money and stability as opposed to the high risk, high reward bonus structure the men wanted.
Even so, the federation said it paid the women better than the men's team over the past five years when factoring in all compensation including wages, bonuses and benefits. The women's team has been far more successful on the pitch than the men's team, though, winning the FIFA Women's World Cup last summer.
The players have said that is not a legitimate defense and have even asked the judge to preclude the federation from bringing it up at trial. A ruling in their favor would significantly hamstring the federation's legal defense and motivate it more to get a deal done rather than risk losing outright in a trial, attorneys said, though a decision may not come until the day of trial.
An impending ruling on both sides' bids for summary judgment could narrow the issues or introduce more uncertainty. Waiting for that ruling could be a risk for both sides.
The players "certainly have enough to get to trial on, so I think there is more risk on U.S. Soccer than the women's team, but both have a chance of not having summary judgment go their way," Webber said. "So it is an opportune time for settlement discussions."
A hearing scheduled for next week on both side's bids for summary judgment was canceled due to the COVID-19 pandemic, increasing uncertainty about the May 5 trial date.
The parties may have a desire to strike now while there is time pressure to get a deal done, experts said.
"I think litigants are often very dug into their positions," Webber said. "But this is a group of women who are very strategic. I don't think they would be unable to think through the pros and cons of a good settlement."
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