Guest Column: Joe McGrath on the Veritable Death of the USWNT’s Lawsuit
Editor’s Note: Mr. McGrath has long and storied history in the management of professional sports franchises, most notably as the general manager of the Charlestown Chiefs of the now-defunct Federal League.
Not to say I told you so…but I told you so. This thing just got laughed out of court, and for the exact reason I said it would. Look, I’m no lawyer, but having been in the contract-driven world of pro sports, I knew this was going to happen, and for one obvious reason.
The U.S. Women’s National Soccer Team (USNWT) filed a lawsuit alleging the the U.S. Soccer Federation (USSF) was discriminating against the women’s team because they were being paid less than the Men’s team. But anybody who understood how union contracts work, and how judges view union contracts knew this lawsuit was never going to survive a motion for summary judgement.
And it didn’t.
Let’s take this from the top. The death of this lawsuit won’t be immediate, but has surely suffered a fatal blow. A motion for summary judgement happens when a defendant in a lawsuit requests that the judge dismiss the case on its face. In layman’s terms, they send a letter to the presiding judge which says something like “we believe this lawsuit should be dismissed because (insert reason here).” In order to get a judge to do this, you’d better have a really good reason, because such a decision will almost always be appealed, and judges really do not like having their decisions reversed. Not only is it a huge ego thing, but jurists who get too many decisions overturned tend not to get nominated to positions higher up on the judge food chain.
The problem the USWNT has in this case is the U.S. Soccer Federation has an iron-clad reason. The USWNT are union members, and the wage scale they are claiming is “discriminatory” was collectively bargained by the union leadership and agreed to by the rank and file union members. In other words, they negotiated the contract, voted to ratify it, and signed off on it, then decided to cry about it. This is the mindset of the person who makes a bet with you and won’t pay up when they lose.
Even the biggest “activist” judge can’t get around that without risking a reversal on appeal. Not to mention, even the “activist” judges aren’t going to set aside a duly negotiated union contract without something solid to hang their robe on, like bad faith negotiating, fraud, or something else which can be shown to have tainted the collective bargaining and/or ratification processes. The big reason why even the most “pro-labor” judge won’t set aside such a contract “just because” is that it would open the door for the management side to nullify pretty much any union contract they wanted to.
“Nobody cares about women’s soccer. That’s way it is this day, May 3rd, 2020.”
That’s why the sports media covering this story should be goddamned ashamed of themselves. It was so obvious this horse was never going to get out of the gate, but because they wanted to take up the political angle on this, here came all that bullshit about “fairness” and “equal pay.” I’m not surprised at that, integrity in American journalism is in the mausoleum right next to Walter Cronkite. The legendary CBS News anchor was known as the “most trusted man in America.”
He earned that distinction largely because he stuck to the facts, and when he offered his own thoughts, it said “OPINION” in big letters on the screen. But in today’s excuse for news and sports media, the distinction between facts and opinion has been obliterated. That’s who really carried the banner for this crap lawsuit, and it was all over the place. I’m using that fish-wrap called Sports Illustrated as an example.
In a stunning legal development, U.S. District Judge Gary Klausner on Friday granted summary judgment to U.S. Soccer on the most consequential portions of the pay equity class action lawsuit brought by members of the U.S. Women’s national soccer team.
I don’t know who Michael McCann (the author of this nonsense) is, but SI should demote him to scrawling phone numbers on truck stop toilet walls. Anybody who called this decision “stunning” is either ignorant of the facts or is ignoring them because it doesn’t fit their world view. He’s about to tip his hand on that. To see it, I need to breakdown the following paragraph to let the nuggets of idiocy fall from it.
Though Judge Klausner’s order doesn’t end the litigation, and the players can ultimately appeal a loss to the U.S. Court of Appeals for the Ninth Circuit, the ruling is nonetheless a major victory for U.S. Soccer and its embattled legal team.
While it is true this ruling doesn’t necessarily end the litigation and the USWNT can appeal, Klausner’s ruling is the iceberg to the USWNT’s “Titanic” lawsuit. The only way an appeal is going to stick is if the appellate court can find “reversible error,” which does not mean simply finding three judges who have your same political ideology. Judges overturning this decision would have to find factual errors in Klausner’s decision, otherwise their decision is also subject to reversal. But Klausner locked his decision down on facts and hard numbers. Don’t take my word for it, read it for yourself.
Then there’s that whole “embattled legal team” thing. How many times have you heard a fighter who threw a knock-out punch 20 seconds into the first round called “embattled?” USSF’s legal team just got about 97% of the way to a victory without even breaking a sweat, but that’s not what McCann wants you to think. Look at how much “spinning” is contained in the next paragraph.
Attorneys representing U.S. Soccer have been sharply criticized and sometimes portrayed as sexist in their choice of written words. U.S. Soccer has changed its leadership staff and legal team, and also petitioned for revised filings, at least partly in response to widespread criticism about the case. Yet it seems that U.S. Soccer’s controversial legal strategy—which embraced a “scorched earth” approach and likely damaged U.S. Soccer’s relations with key sponsors and constituencies—worked.
Let’s take the “idiot nuggets” here one at a time.
“…Sharply criticized and portrayed as sexist…” is the perfect description of how the U.S. Soccer Federation was portrayed by hacks like McCann. The crime they committed to earn that media-driven scorn was to uphold a duly negotiated contract and defend themselves from a crap lawsuit. The USSF didn’t understand when the “politically-correct” crowd comes after you with the torches and pitchforks, you’re supposed to abandoned the rule of law and knuckle-under to the whim of the day.
“…Petitioned for revised filings, at least partly in response to widespread criticism about the case.” This is a load of crap designed to make you think that the U.S. Soccer Federation thought they had a problem with this case, and while certain individuals may not have wanted to live through the mud the media was slinging at them, the U.S. Soccer Federation never wavered an inch on this. That stuff about the revised filings is a dramatic example of this guy’s complete lack of understanding of the legal process. At the beginning of any lawsuit, there’s documents flying back and forth, and for some reason, ham-brains like McCann can’t understand that having different data points might lead to a different conclusion. All legal cases are based on facts known and finding new facts can change they way things go. That’s why they call it “discovery.”
“…Scorched earth approach and likely damaged U.S. Soccer’s relations with key sponsors and constituencies…” is 100% about not knuckling-under to the PC mob. “Scorched earth” simply means The USSF didn’t just hand over a dump-truck full of money and defended themselves against a lawsuit which was found to be without merit. “Damaged U.S. Soccer’s relations with key sponsors and constituencies” is code for the people who took a politically-based argument into a court of law, got their asses handed to them, and are now pouting about it. That’s how this guy can spew crap like “controversial legal strategy…worked.” IT WORKED BECAUSE THEY HAD THE LAW ON THEIR SIDE, YOU BLITHERING IDIOT!!!
My favorite part in all of this is when McCann has to choke on the chicken-bone of fact stuck in his craw from Klausner’s decision. That’s why he makes an attempt to invalidate in in the finest traditions of “identity politics.”
In a 32-page order, Judge Klausner suggests that WNT players’ predicament is their own fault. He intimates that they agreed to a CBA that they now regret. “The history of negotiations between the parties,” the 78-year-old judge observes, “demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players.”
The bottom line is the USWNT had a chance to take the deal they wanted, but turned it down, because they wanted the guaranteed money in base compensation rather than betting on bonuses. But according to McCann, that’s all invalid because Klausner is an old, white guy. Why else does he feel the need to point out the his age? I love the hypocritical and not-so-subtle racism of guys like McCann.
But that chicken-bone gets even more pointed when McCann is forced to admit that the women actually made more than the men during this time, and tried his damnedest to dismiss that as well.
In addition, Judge Klausner repeatedly rejects arguments raised by WNT concerning pay. He concludes that, based on empirical evidence and expert testimony offered by both sides, WNT players have seemingly earned more than MNT players. He notes that during the class period (2015 to 2019), WNT played 111 total games and earned $24.5 million overall in salaries. This means WNT players made, on average, $221K per game. During this same period, MNT played 87 games and earned $18.5 million overall in salaries. MNT players therefore made, on average, $213K per game—or $7K less per game than WNT players.
“…Seemingly earned…” is prime. I guess when you go to journalism school, you aren’t required to do much math. There’s nothing “seemingly” about it, those are the numbers…like it or not.
Now in all fairness, Klausner didn’t dismiss the lawsuit entirely. While he struck down the pay aspect, he addressed the claim by the USWNT that the U.S. Soccer Federation forced them to play on “inferior surfaces” (read that as “artificial turf”) because of discrimination. But McCann was also forced to admit Klausner didn’t buy the USWNT’s position.
Judge Klausner found U.S. Soccer’s rebuttals on field surfaces believable. U.S. Soccer submitted evidence that there were only two time periods during which U.S. Soccer subjected WNT to turf conditions at a higher frequency. The first occurred during a 10-game, post-World Cup victory tour in 2015. Judge Klausner notes that MNT didn’t play in such a tour since they weren’t victorious. U.S. Soccer also argued, successfully, that it didn’t install temporary grass over the turf at WNT victory tour venues since “it did not anticipate generating enough revenue from those matches to make it financially prudent.” This same financial prudence rationale also persuaded Judge Klausner with regard to WNT playing three friendlies on turf between July 27 and Oct. 19, 2017. U.S. Soccer maintained it had a right to make economic decisions on field conditions and expected revenue. Judge Klausner found that line of reasoning cogent.
The only real victory in this case for the USWNT came when Klausner found their claim of being subjected to inferior travel conditions worthy of being heard by a jury. That boils down to the USSF having spent more money during the during the class period (2015 to 2019) on airfare, accommodations, and medical and training support for the men’s team than the women.
Whether or not that ever gets to the jury is anybody’s guess. First, Klausner has not rendered a final decision, but this effectively rips the guts out of the USWNT’s case. All the banner-waving behind this case was about the money. Nobody cares about the “under-card” here. The “main event” was the “equal pay” issue, and the USWNT just got counted out.
My bet would be “no,” if for no other reason than the USWNT just lost all their bargaining power. The money thing was the only real poker chip they had, and now that it has been rendered worthless, I would look for a settlement. But the USNWT needs to understand that the U.S Soccer Federation is now firmly in the driver’s seat, not only in this case, but in any future collective bargaining between the USSF and the player’s union. There’s one crucial reason why.
Nobody really cares about women’s soccer. It’s just like the Olympics. Once every four years, Americans pretend to care about this team because it wins the World Cup fairly regularly. American sports fans are not only event-driven, they like watching things we are good at.
Globally, the men’s game dwarfs the women’s game, which is 100% a function of fan interest. That’s why the men’s World Cup generates billions in revenue and is the largest sporting event in the world that doesn’t have the word “Olympic” in it’s title. Likewise, the women’s World Cup, despite it’s popularity in America, only generates a small fraction of what the men’s event does.
That’s not discrimination, that’s reality. It doesn’t matter if the women have a better track record of on-field success than do the men. From my own experiences in minor-league hockey, even during the Charlestown Chiefs’ championship year, I couldn’t make as much in that whole season as the sorry-ass Los Angeles Kings could in four home games. The size of the market and the level of fan interest is what matters, not the in-game performance. That’s why the Toronto Maple Leafs are the most valuable franchise in the National Hockey League, despite the fact they haven’t won a Stanley Cup since Lyndon Johnson was the President.
That’s the bottom line.
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