Let’s call it the Zika Effect. Last year, a small mosquito crossed the shores of Brazil’s Atlantic Coast, setting off a series of events—leading to a national discussion on equal pay in the workforce. The discussion, of course, hit national news outlets following a recent filing by the U.S. Women’s National Soccer Team (USWNT) alleging that its employer, the U.S. Soccer Federation, is engaged in gender-based wage discrimination tactics. The genesis of the filing, however, is linked to voiced health concerns following a Zika virus outbreak in Brazil (host of the 2016 Olympic Games).
In early February, just days before opening Olympic qualifying, U.S. goalkeeper Hope Solo (among others) threatened to boycott the Brazil Games in light of the nation’s Zeka spread. U.S. Soccer—undoubtedly concerned over the public perception (and, to a larger degree, financial fallout) resulting from a USWNT boycott—hastily filed a federal lawsuit against the USWNT Players Association seeking a determination that a collective bargaining agreement (CBA) existed and would, in effect, bar any work stoppage. The USWNT more than responded: it used the Complaint as a platform to expand the dispute from the doors of district court and into the jurisdiction of the Equal Opportunity and Employment Commission (EEOC).
What may appear (at first glance) as an opportunistic ploy by the USWNT is anything but. Keep in mind, that, U.S. Soccer is the plaintiff in the underlying district court suit—meaning it brought its grievance against the USWNT to the public forum, and not vice versa. The USWNT, as any defendant to a lawsuit, was forced to respond. The EEOC filing, consequently, was almost certainly a byproduct of U.S. Soccer’s decision to embroil the parties in litigation—and an effort by the USWNT to force resolution to other aspects of the CBA dispute (wages).
The crux of the underlying suit is whether a valid CBA exists governing the rights and obligations of both U.S. Soccer and the USWNT. U.S. Soccer is taking the position that a Memorandum of Understanding (MOU) was incorporated into the CBA (which, by its terms, expired in December of 2012). It is alleging that the MOU was an agreement of the parties to incorporate the terms of the prior CBA while the parties negotiated a new CBA. U.S. Soccer is, in essence, arguing that the MOU is operating as a “stopgap” until a new CBA is agreed to. The USWNT is arguing that no CBA exists and that the MOU expressly rejects incorporation of the prior CBA.
A material term to the CBA is, of course, wages. If no CBA exists, it is almost impossible to argue against wage discrimination—and consequently, that the women are due their fair share of the profits. The days of using “well, its all about the money” to justify paying male players more than their female counterparts would be over. By virtually all accounts, the women are not only more successful on the field—they generate more revenue than the men. Their wage demands are undeniable.
The potential problem for the women, however, is if the CBA is found to be valid and enforceable. The CBA is a contract—agreed to by the parties—and may preclude (or dilute) the womens’ claim of wage discrimination. The critical question then becomes: If the women agreed to be paid at a specific scale/rate, then how could they argue discrimination? Keep in mind that the women must prove (or EEOC find) that U.S. Soccer unlawfully engaged in wage discrimination based on their gender. It is not difficult see weakness to the women’s argument in light of a valid CBA.
Unsurprisingly, the attorney representing the USWNT, Jeffrey Kessler, does not agree that the CBA will be burden in the EEOC proceeding. In a recent interview on ESPN’s Mike and Mike, Kessler stated:
[pullquote align=”full” cite=”” link=”” color=”” class=”” size=””]”Employees always agree to accept their salary because they have no choice. So the fact that the employee agreed to take a lesser salary is not committed as a defense in this country. It would be as if the collective bargaining agreement said, ‘we are not going to allow you to have any African American players.’ That would be illegal too.”[/pullquote]
The resolution of the district court matter is therefore critical to the USWNT’s claim for wage discrimination. Also critical to both filings—and, to a greater extent, the results—are the respective procedural timelines.
Make no mistake: the district court timeline, viewed in conjunction with U.S. Soccer’s competitive timeline, is well-known and important to both parties. Immediately after filing (and serving) the Complaint, U.S. Soccer filed a Motion for an Expedited Initial Status Conference, which sought an expedited schedule for hearing on a summary judgment motion (also brought by U.S. Soccer). Such motions are filed for the purposes of obtaining a final judicial determination as to the parties’ claims and disputes. The motives are clear: U.S. Soccer wants a quick determination as to the legality of the CBA, limiting public exposure of the conflict, and preventing the parties from acting outside of the scope of the agreement.
The timeline is equally known and important to the USWNT. The women, fresh off an incredibly successful (and popular) world cup run in 2015, haven’t disbanded in preparation for the Brazil Games set for later this summer. The rub hasn’t worn off in the public eye—womens’ soccer remains as relevant as ever. The USWNT is cognizant of its elevated public perception, and will use it to its advantage.
So much can be ascertained from its position toward resolution of the district court suit. In responding to the motion, the USWNT seems almost casually accepting of the court’s initial conference date set for June. This position is transparent when viewed in conjunction with the EEOC filing. By waiting (and buying time in federal court), the USWNT can promote its wage discrimination claims. If the claims drag into the early summer, the public will certainly grow wary and fearful of a boycott—placing added pressure on U.S. Soccer to resolve the dispute and put a team on the field in Rio.
The EEOC filing almost appears to be a “straw man” claim (even if the efficacy of the claim is irrefutable). An EEOC claim initially involves an investigation by the EEOC itself into the alleged discrimination, which may take several months (approximately 180 days per the EEOC) to complete. Given the nature of the filing, the investigation will undoubtedly involve the requests for and disclosure of detailed financial documents, including the possibility of comprehensive reports from each side regarding pay policies and methods of wage computation. The investigation will further include interviews with several officials and representatives from both sides.
To expect a quick turnaround of the EEOC decision would be foolish. The decision to file the EEOC claim, then, appears as a calculated move to force U.S. Soccer’s hand in expediting resolution in the form of agreeing to a new CBA—and new, favorable wage terms for the women. The USWNT, like U.S. Soccer, would prefer not to have the dark cloud hanging over the Rio games. Unfortunately, for U.S. Soccer, dragging out litigation into the summer would only further its status as villain in the public eye and cause outrage among an impatient fan base. The USWNT appears to be in a win-win situation. As such, both claims should resolve (in one way or another) in advance of the Olympic games via settlement.