Last week, a federal court ruled against the USWNT in their wage discrimination lawsuit against the US Soccer Federation. And while this understandably angered a large number of people (including Megan Rapinoe), Judge R. Gary Klausner’s ruling was at the very least based on sound legal principle.
That’s the opinion of Michael Stefanilo Jr., an attorney and partner at Boston’s Brody, Hardoon, Perkins, and Kesten law firm. Stefanilo, who previously spoke to Outsports when his firm filed a class action suit against a leading northeast chain of gyms for continuing to collect membership fees during the pandemic, gave us a legal perspective on Klausner’s ruling:
“While this is a politically charged case for many, and I might not agree with the outcome, it appeared to be a well-reasoned decision and included an appropriate application of law to fact... I don’t have any personal experience with Judge Klausner, but my impression of the federal bench based on my many cases in federal court has been an extremely positive one.”
It’s not the result we wanted to hear but at least in this case, Klausner — a conservative appointed to the federal bench by President George W. Bush in 2003 — was relying on established law and legal doctrine to render his verdict, according to Stefanilo. Which, in 2020, qualifies as news.
In his ruling, Klausner focused on the fact that the USWNT’s union had negotiated these current pay stipulations as part of its Collective Bargaining Agreement with US Soccer. According to Stefanilo, “the role of collective bargaining was critical to the decision in this matter. That point cannot be overstated when analyzing this outcome.”
The difference between the respective CBAs negotiated by the men’s and women’s national teams boils down to bonuses. Simply put, the men’s national team draws hefty compensation from higher bonuses as part of their agreement while the women rely more on larger base pay in lieu of those same bonuses.
As Judge Klausner pointed out, this was a structure that they themselves negotiated. However, Stefanilo conjectured, “I wonder if there was any evidence to suggest that the bargaining position of the women was somehow weakened in negotiations, preventing them from electing the same or a similar CBA to the men. It would be helpful to view the evidence on that point.”
It might be cynical of me to say so but this... doesn’t sound farfetched. In fact, it echoes Rapinoe’s comments in the wake of the verdict:
“The men’s contract was never offered to us, and certainly not the same amount of money. To say we negotiated for a contract and that’s what we agreed to, I think so many women can understand what that feeling is going into a negotiation, knowing that equal pay is not on the table.”
As to US Soccer’s disturbingly misogynist court filing that noted the “job of a [men’s team player] carries more responsibility” than a women’s team player, Stefanilo asserted that this “was a troubling display of sexism couched as a legal argument. I find it deeply concerning. Despite that particular comment, however, my impression from reviewing the briefs submitted is that both sides generally presented their respective arguments competently.”
While US Soccer’s sexist conclusions in the filing were a terrible reflection on the organization, Stefanilo saw them as more damaging in terms of public relations than to the case itself. As he viewed it, the verdict came down to this:
“The court credited that, in its opinion, the WNT was given ample time to present evidence that they were paid more solely, or in material part, because they worked more. The judge concluded that the WNT failed to satisfy their burden on this issue.”
What’s next? Civil rights attorney Neil W. Blackmon thinks the women should resist appealing the ruling and instead head back to the bargaining table. “The possibility of a strong settlement for the USWNT even after losing summary judgment remains,” Blackmon wrote in Fansided. “Indeed, a better strategy than an appeal may be to leverage both the U.S. women’s substantial victories in both the court of public opinion and on the remaining working conditions claims into a settlement both parties can live with.”
The USWNT went undefeated against the rest of the planet during World Cup play. But in an upset, it turned out their most fearsome opponent all along was US Soccer.