In a new federal court filing for the ongoing equal pay dispute in U.S. women’s soccer, lawyers for U.S. Soccer backed away from previous strident language suggesting that women’s players perform a job that requires less skill or effort than male counterparts and thus a job that cannot be compared equally to a male counterpart.
Incendiary language to that effect in past filings ultimately led to Carlos Cordeiro’s resignation this month as U.S. Soccer president. Both Cordeiro and Cindy Parlow Cone, the former member of the women’s team who replaced him as president, said they did not review the specific language in the March 9 filings that sparked a backlash from fans and sponsors.
However, in a “memorandum of contentions of fact and law” filed Tuesday, lawyers for the plaintiffs appeared to respond to the March 16 filing backing away from the federation’s earlier language as U.S. Soccer and members of the women’s national team submitted filings Tuesday that outlined the cases each intends to make should the lawsuit move to a trial phase in May.
Cordeiro and Parlow Cone both subsequently apologized for language in the earlier filings that suggested women’s players did not perform equal work because they were physically inferior and carried less responsibility because the women’s game was not as popular or potentially profitable as the men’s game. That language related to the “equal skill, effort and responsibility” component of the Equal Pay Act, an alleged violation of which is part of the players’ suit.
U.S. Soccer brought in new legal counsel after the backlash to its March 9 filing. That new counsel was responsible for a filing a week later that softened the language and omitted references to skill, effort and responsibility.
“The parties have significantly narrowed the issues to be tried by way of discovery and briefing,” Tuesday’s filing from the players’ lawyers stated. “USSF no longer disputes that the jobs of the WNT and MNT players require equal skill, effort and responsibility — and therefore have necessarily conceded that they perform equal work.”
Neither the March 16 filing from U.S. Soccer’s new counsel nor this week’s filing explicitly state that concession. But in addressing the Equal Pay Act claim by the players and how it would respond in a trial, U.S. Soccer made arguments Tuesday that the players had not identified comparable male counterparts, were not paid less than men’s national team players in total or on a per-game basis and did not work in the same establishment as men’s players.
“The undisputed facts show that the WNT and MNT are both geographically and operationally distinct,” the U.S. Soccer filing said. “The WNT and MNT play in different venues in different cities (and often different countries), and participate in separate competitions against completely different pools of opponents. In addition, the day-to-day functions and operations of the team are overseen by separate coaching staff, technical and medical staff, and Team Administrators.”
Yet while continuing to argue that the men’s and women’s teams are separate entities that cannot be compared because they work in different workplaces, Tuesday’s filing did not attempt to refute the Equal Pay Act claim on the basis of the “skill, effort and responsibility” component.
U.S. Soccer instead relied on the aforementioned arguments against the Equal Pay Act claim, as well as familiar arguments about the women’s and men’s teams negotiating separate CBAs in regard to the plaintiffs’ discrimination claim under Title VII of the 1964 Civil Rights Act.
In combination with the change in federation leadership and the tone of the March 16 filing, Tuesday’s filing suggests a change of course for U.S. Soccer’s legal strategy and perhaps an opening for settlement talks.
On a conference call with media a week ago to introduce new U.S. Soccer CEO Will Wilson, Cone stated a clear preference for resolving the dispute before it reaches trial.
“I think that’s one of our top priorities right now,” Cone said on March 24. “I don’t think a trial is good for either party or for soccer, both in this country or internationally. Obviously our women’s team is the best team in the world, and I am hopeful that we can find a resolution before this goes to trial.”
Tuesday’s filings also included potential witnesses for both sides. The lists included all four class representatives in the lawsuit: Carli Lloyd, Alex Morgan, Megan Rapinoe and Becky Sauerbrunn (although the plaintiffs noted they might call Christen Press if Morgan is unavailable because of her pregnancy). Also included on the combined lists were former U.S. coach Jill Ellis and former USSF presidents Cordeiro and Sunil Gulati.
The trial is currently scheduled to begin May 5, although judge R. Gary Klausner must first rule on each sides motion for summary judgment.