Why Mediation Was Unlikely to Work Now and What Comes Next for USWNT, U.S. Soccer

Given the complexity of the dispute and the entrenched positions of both sides, mediation was always unlikely to resolve the battle for equal pay between U.S. Soccer and the U.S. women's players. Here's what you can expect to follow after the latest developments.

After several days of mediation discussions in New York City, representatives for U.S. Soccer and the 28 U.S. women soccer players who are suing the federation went their separate ways on Wednesday. They left with neither a deal in place nor an expectation of a forthcoming settlement. A day later, two of the players, Megan Rapinoe and Christen Press, appeared on national TV shows and explained why they won’t accept a deal unless it truly reflects equal pay.

These developments signal that the two sides intend to resume a federal litigation that is currently before the U.S. District Court for the Central District of California. While the failure of the talks to resolve the litigation means that the case will continue indefinitely, the parties can resume settlement discussions at any point. As explained below, this is a complicated litigation that has a number of moving pieces.

The center of the dispute

The players’ arguments are clear. They stress that they and their U.S. men's national team counterparts essentially have the same jobs—they both work for U.S. Soccer, a not-for-profit entity, in the capacity of playing competitive soccer at the highest level. USWNT players also emphasize that their performance has been decidedly superior to that of male players, given their four World Cup titles. Despite these factors, USWNT players assert they are paid much less than USMNT players. They have also experienced inferior working conditions, such as lesser playing facilities and travel arrangements.  

Armed with those factual assertions, USWNT players insist that U.S. Soccer has violated two federal laws, the Equal Pay Act and Title VII of the Civil Rights Act of 1964. Both laws make it illegal for employers to differentiate employees’ wages on the basis of sex.

U.S. Soccer categorically denies the players’ factual assertions and legal theories. U.S. Soccer contends the players have intentionally misinterpreted data points. The players, U.S. Soccer believes, have exaggerated the degree to which they are solely responsible for revenue generation and the degree of disparity in pay between the two teams. Also, while employers can’t lawfully pay male employees more than female employees on the basis of sex, they can justify pay differences on other grounds. Those grounds include variations in job responsibilities, essential skills and—most relevantly in this dispute—collective bargaining agreements.

To that point, USWNT and USMNT are members of different players’ associations. Those associations have negotiated different CBAs with U.S. Soccer. The two CBAs contemplate varying systems of compensating the players. Generally speaking, USWNT players are guaranteed pay whereas USMNT players are paid when they play. The presence of two CBAs likely represents the greatest legal hurdle to the players’ case. Though their union insists that U.S. Soccer refused to entertain market-based systems of pay, the union negotiated the economic terms for which the players now contest.

Failure of mediation with this dispute and at this stage is not a surprise

Attorneys for both USWNT players and U.S. Soccer probably expected that mediation would fail to resolve the dispute.

That’s not to say mediation is without value. Mediation can be very helpful in that it brings together representatives of both sides and their attorneys for face-to-face discussions. A skilled mediator can also guide the two sides through potential ways of reaching a compromise, particularly since the mediator is—unlike the attorneys—neutral. To that end, he or she can listen to both sides, analyze relevant evidence, evaluate testimony and data and then offer an informed and reasoned resolution.

Yet mediation is limited in a number of key ways. Unlike a judge or an arbitrator, a mediator lacks the authority to mandate a resolution. A mediator can only propose a resolution. The proposal is binding if both sides agree but has no effect in the absence of such agreement.

There are several additional reasons why mediation was unlikely to work in this particular dispute, at least at this juncture.

First, USWNT players and U.S. have tried to mediate before and those efforts failed. They held settlement talks in March, without success. They also participated in formal mediation with the U.S. Equal Employment Opportunity Commission (EEOC). In 2016, Carli Lloyd, Alex Morgan, Hope Solo, Rapinoe and Becky Sauerbrunn filed a charge of discrimination with the EEOC, claiming that U.S. Soccer had violated Title VII on the basis of low pay. Accompanying mediation failed. That failure helped to bring about the current lawsuit. The EEOC, after having exhausted mediation efforts, issued right to sue letters to the players in February. Those letters empowered the players to sue U.S. Soccer in federal court. They did so in March.

Second, while the concept of paying USWNT players more money is straightforward, the details of raising pay can spark other lines of debate. Would all of the players receive pay increases or only some of them? Would the dollar amount be equal or would it vary by player? Would a player’s current salary, skill, age, position, experience and other ways in which players are distinguishable impact whether–and by how much–a player’s pay rises? When would pay increases go into effect, immediately or in the future? Would pay raises be retroactively applied? These and similar questions highlight how an agreement in principle to pay higher salaries to USWNT players would necessarily bring about second-level distributional questions—questions that individual USWNT players might answer differently. These questions would need to be answered before a settlement could be reached.

Third, the USWNT Players’ Association and U.S. Soccer have signed a CBA that runs through 2021. Like all CBAs, the one for USWNT players contains various rules related to the players’ wages, hours and other working conditions. A settlement to the litigation would require modifications to the CBA. While such a task is achievable, it nonetheless adds a layer of complexity: attorneys attempting to resolve the lawsuit need to be mindful of how they would incorporate the details of their resolution into the CBA.

Fourth, don’t forget Solo, the retired USWNT goalkeeper. While current USWNT stars have headlined the litigation, it was Solo who brought the first gender-based employment discrimination lawsuit against U.S. Soccer. Her case remains separate, though it raises essentially the same legal arguments. To the extent U.S. Soccer sees a way to settle its dispute with USWNT players, it would prefer to use methods that would also convince Solo to settle.

Fifth, the USWNT litigation is still in its infancy. While the two sides have batted in court before, their current lawsuit only began in March. This is a dispute that could last several years. Both sides have retained prominent law firms that are accustomed to long-term, expensive and complex litigation. Although a trial remains unlikely (more on that below), if one were to happen, it could potentially lead to several appeals that extend the litigation into the early-to-mid 2020s. Mediation at a later date might prove more fruitful than it did in August.

Brian Rothmuller/Icon Sportswire/Getty Images

The unusually high-profile of the litigation could make it more difficult to settle

The players’ lawsuit has not only resonated with sports fans, it has become a political topic as next year’s presidential election nears. This is important in understanding how the litigation could play out. Unlike the vast majority of lawsuits that attract virtually no public attention, the public is eagerly following this one. The attorneys for both sides are well aware of that fact, and it shapes their moves.

To that end, both sides are aggressively pitching their message to public channels. U.S. Soccer has hired lobbyists in Washington, D.C., to rebut the players’ data on earnings and the degree of the gap in pay. The players, meanwhile, have retained a New York City communications firm to advocate for them and share litigation communications with media.

Both sides are also aware that comparing pay between the USWNT and USMNT teams depends on selected variables. The two teams play an unequal number of games, and the monetary value for each game is impacted by the rank of the opponent, among other factors. The players’ bonus structures are also configured differently. Each side can manipulate the data to advance a preferred narrative. This circumstance likely enlarges the public controversy. Each side is trying to convince media—and perhaps potential jurors—that its perspective is correct.

A trial remains a longshot and wouldn’t take place until late next year

Despite the public posturing, the litigation will probably settle before a jury trial takes place. As SI's Grant Wahl notes, the resumption of the litigation increases the odds that pretrial discovery will occur. Discovery refers to the parties being compelled by the presiding judge, Judge Gary Klausner, to share evidence (such as emails and texts) and answer questions posed by opposing counsel. Discovery would commence if Judge Klausner doesn’t dismiss the litigation or if the parties fail to settle.

The prospect of discovery could be worrisome for U.S. Soccer officials, particularly if they are forced to share empirical data that supports the players’ central argument of being underpaid. Also, if there are insensitively worded emails that reflect poorly on U.S. Soccer or on the players, pretrial discovery could lead to their publication. Likewise, witnesses would testify under oath—and thus while subject to potential perjury criminal charges if they knowingly lie. Witnesses often take a subdued and serious tone. In a case filled with heated rhetoric, testimony could strike a different chord.

If there is a trial, it could begin on Nov. 11, 2020 (the players’ preference) or Dec. 8, 2020 (U.S. Soccer’s preference). It could also begin on a different date. The timing of the trial is up to Judge Klausner, who, of course, has other cases on his docket. A court filing from August 9 obtained by SI.com indicates that a trial would last two to four weeks.

Here are the competing timelines proposed by each side:

Here are the proposed dates the two parties in #USWNT players suit against USSF have proposed. Basically a month's difference. Scheduling conference set for Monday before Judge R. Gary Klausner. pic.twitter.com/qkul8yxNxh

— Paul Kennedy (@pkedit) August 15, 2019

The proposed schedules make clear that both sides expect to rely on expert testimony. This isn’t surprising. Both sides are investing considerable resources into the case. Paying for what could be very expensive hourly rates for expert testimony is part of the investment. Still, the reference to expert testimony highlights the importance of numbers in the litigation. Expect both sides to retain prominent economists to offer dueling data sets about revenue generation, sponsorships, wages, bonuses and other factors that impact pay.

The proposed schedules also indicate that the two sides expect to litigate while they presumably attempt to negotiate a new CBA. As mentioned above, the current CBA will expire in 2021. Typically, management and a union begin negotiations on a new CBA at least a year in advance of their existing CBA expiring. It’s possible this timeline could help fuel a settlement. A litigation settlement will require changes to the CBA, so perhaps they could get both a settlement and new CBA done at around the same time.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.