U.S. Soccer’s defense against a pay equity lawsuit filed by the women’s national team has received an unsolicited amicus brief from a conservative women’s group—but the “friend of the court” document was met with a decidedly unfriendly reception.
On Sept. 29, the Independent Women’s Law Center (IWLC) filed a 29-page amicus brief with the U.S. Court of Appeals for the Ninth Circuit. In it, the IWLC warned that a ruling in the USWNT players’ favor would “deny other female workers the ability to negotiate favorable workplace arrangements that differ from those of their male peers” and “undermine our nation’s longstanding policy in favor of collective bargaining.”
The IWLC is a project of the nonprofit Independent Women’s Forum (IWF), a conservative group founded in the aftermath of the acrimonious confirmation hearings for Supreme Court Justice Clarence Thomas in 1992. The organization says it promotes access to free markets and limited government. Under the direction of attorney Jennifer Braceras, a former member of the U.S. Commission on Civil Rights under President George W. Bush, the IWLC counts among its current board members former Republican U.S. Rep. Nan Hayworth.
The IWLC amicus brief’s focus is on the legal right to contract and the urging of courts to not disturb contractual agreements.
But in response to the filing, the union for the men’s team, which earlier in the case submitted an amicus brief supporting the women’s team, skipped any legal analysis and attacked the IWLC for its political history and views.
“The IWF/IWLC has been described as ‘a right-wing public policy group that provides pseudofeminist support for extreme positions that are in fact dangerous to women,’” said the statement from the U.S. National Soccer Team Players Association. “For more than thirty years the IWF has taken positions adverse to the rights and advancement of women, including positions adverse to the enforcement of Title IX.”
The statement, provided to Sportico by players association counsel Mark S. Levinstein, goes on to say: “It is sad but not surprising that the IWF/IWLC would want to align themselves with the United States Soccer Federation (USSF). The fact that the IWLC has submitted an amicus brief that embraces and parrots the arguments in the USSF’s briefs is further evidence that those arguments are without merit and accepting those arguments would further inequality and discrimination against women.”
U.S. Soccer, for its part, had a more muted reaction. Neil Buethe, the federation’s chief communications officer, told Sportico U.S. Soccer has no ties to IWLC or Braceras and did not seek an amicus brief from them.
Keep in mind, an amicus brief is an argument by a party outside of a litigation but who claims to possess an interest in the outcome. The party—called an “amicus curiae”—doesn’t need permission from the litigants, who may or may not want the party involved. Judges are free to give amici curiae as much (and as little) consideration as they like.
The brief does support a pillar of U.S. Soccer’s legal argument. The IWLC maintains that USWNT’s union voluntarily negotiated a CBA with U.S. Soccer that guaranteed pay and other employment benefits (such as signing bonuses, severance benefits, health insurance and guaranteed rest time) in lieu of opportunities to earn lucrative performance bonuses without those same guarantees.
“Women’s Soccer,” the brief charges, “sought an agreement that provided higher base salaries paid irrespective of whether the players attended training camp, took the field, or won a game. This gamble paid off, as it allowed the players on the women’s team to continue collecting their salaries during the height of the COVID-19 pandemic despite not playing in any games. By contrast, the players on the men’s team went ten months without a paycheck.”
As IWLC sees it, the fact that some USWNT players could have earned more if their union had negotiated a CBA that was structured like the CBA negotiated by USMNT’s union—that is, a CBA with more valuable bonuses but without guarantees—is irrelevant as a matter of legal analysis. “It is an elementary principle of law,” the brief insists, “that a party to a contract may not avoid its obligations simply because she experiences regret.”
IWLC refers to an analogy of college students taking a course either for a grade or for pass/fail.
“Imagine two undergraduate students take a course: Student 1 takes the course pass/fail, Student 2 does not. Student 1 ends up earning an A, but having taken the class pass/fail, that grade is not reflected on her transcript, nor does she receive a GPA boost. Student 2 earns a B in the course. Though Student 1 outperformed Student 2, in retrospect she would have been better off under Student 2’s grade structure . . . Women’s Soccer cannot now argue that the players’ successful performance entitles them to additional pay where the team chose to limit both the upside and the downside of performance.”
IWLC’s interest in the case likely doesn’t stem from soccer or the soccer industry. It instead expresses a goal in promoting what it calls “the rights of female workers to negotiate contracts that provide financial stability and other high-value benefits.”
In July, several groups, including the National Women’s Law Center and Georgetown Law’s Institute for Constitutional Advocacy and Protection, filed amicus briefs urging the Ninth Circuit to rule for USWNT players. Those briefs argued, among other points, that unequal pay rates cannot be made lawful through a CBA.
The men’s players association brief, filed at the same time, went so far as to assert that, given their unparalleled success, USWNT players should have received “higher pay” than the men.
USMNT players, however, were more measured when asked directly about the issue this week. The men’s team is in the midst of three World Cup qualifiers, beginning with Thursday night’s 2-0 victory against Jamaica in Austin, Texas.
USMNT midfielder and union player rep Tyler Adams was asked this week if the men’s and women’s unions were in discussions about U.S. Soccer’s proposal to pool all World Cup revenues and divide them evenly among the two teams. “I haven’t seen exactly all the transparency between our players’ union and their players’ union, but I know there have been communications,” Adams said.
Adams added that FIFA’s glaring disparity in men’s and women’s World Cup prize money is a major problem, an idea repeated by teammate Paul Arriola. “I think obviously the difference is going to be the prize money that FIFA decides to allocate to the men’s and women’s [teams],” Arriola said, “and that’s something that we hope can change and can kind of get us all in in favor and together.”
U.S. Soccer hopes to negotiate new and identical CBAs with both teams. USWNT’s CBA will expire on Dec. 31, while USMNT’s expired a few years ago. So long as the two teams continue to use their own unions, however, the prospect of identical labor agreements is uncertain.
Meanwhile, the pay litigation continues. Last year, U.S. District Judge Gary Klausner granted summary judgment to U.S. Soccer. He stressed that the men’s and women’s teams chose to use separate unions to negotiate separate CBAs and that each CBA reflects different priorities. Judge Klausner also found that, on a cumulative and average per-game basis, USWNT players were paid more than USMNT players.
USWNT players appealed, contending that Judge Klausner erred in his pay calculations. He also, USWNT attorneys contend, overlooked case law and legislative history indicating that unions and managements can’t bargain around legal protections from sex discrimination in pay rates.
It is expected that a three-judge panel from the Ninth Circuit will hear the oral argument in 2022 and rule later in the year. The litigation could also end in a settlement at any point.