Dear US Soccer – Please Shut Up and Settle

I practice criminal law, criminal defense to be precise. I’m glad I do, because there’s a clarity of focus in it that can be a bit hazy in other legal areas. My job is to do the best for my client in court, period – whether that means an acquittal, a better sentence, or (as in my practice, for the most part) a successful result on appeal. Very very rarely are the other considerations to worry about. That the public doesn’t like the process is irrelevant – I’m trying to keep my guy out of a cage.

Civil law is different, particularly civil defense. People who get sued are often really determined to prevail on court, to prove to the world that they’re right. But part of their lawyer’s job is to suggest that winning in court is not necessarily going to solve their problem. A criminal defendant is rarely made worse off by a bold defense in court. A civil defendant, by contrast, particularly a corporation without any real personality – well, sometimes the big machine gets it right:

WinningMove

That went through my head when I read about US Soccer’s pleading last week in its ongoing litigation with the US Women’s National Team (USWNT) over equal pay. I don’t know enough about employment law to know if the arguments made in it are legally sound or have a chance of success, but I’ll assume they do. Question is, what does US Soccer think a “win” would look like at this point?

This article at SI breaks down the federation’s latest argument, which basically has two parts. The first is one familiar to anyone who has brushed up against the legal system – non fregit eum, et emit eam (aka “you broke it, you brought it”):

Stolzenbach first asserts that the fundamental flaw of the players’ legal theory is that they compare a pay system that their own labor union, the U.S. Women’s National Soccer Team Players Association, negotiated with the pay of players who aren’t in their bargaining unit—players on the men’s team.

To that end, U.S. Soccer stresses that courts have consistently rejected attempts by unionized employees to compare their employment terms to employees who are outside of their bargaining unit.

This is the kind of procedural argument I’d expect any lawyer to make. It appears to be the equivalent to how plea bargains are treated in criminal law – once you sign one, you’re stuck with it. Assume A and B are charged in an indictment and A decides to get a good early plea bargain. B sticks it out and, later, either gets a better deal or goes to trial and is acquitted. Can A back out of his plea? Not a chance. Courts routinely hold that so long as you weren’t misinformed, mistaken, or misled into making a guilty plea then you won’t be able to back out of it later. Whether this is a winning argument in the context of the USWNT case I don’t know, but it seems fairly standard.

The other one, though . . . yikes. It has to do with whether the job of USWNT player is “roughly equal in terms of effort, skill, and responsibility” to that of US Men’s National Team (USMNT) player. It was bad enough to point out that in terms of “responsibility” that the USWNT may not have the same earning potential as the USMNT (while eliding the fact that the USMNT choked and missed out on its last big earning opportunity – the 2018 World Cup).

From there it got worse:

Stolzenbach attempts to supplement this argument, even wading into some territory that could be described as misogynistic.

He insists that men’s players face much more demanding working conditions and thus have fundamentally different—and, by implication, harder—jobs. He contends that men’s players encounter ‘opposing fan hostility’ in road environments, particularly in Mexico and Central America, that is ‘unmatched’ by anything experienced by women’s players. Stolzenbach stresses that the women don’t play in Mexico, Central America or the Caribbean when trying to qualify for tournament play. Further, Stolzenbach maintains that ‘science’ confirms there are different levels of speed and strength required for men’s and women’s players. He insists it is not a ‘sexist stereotype’ to recognize this distinction.

 

Now, if US Soccer was fighting to stay out of jail I might question this strategy, but you do what you have to do. But at the end of the day, US Soccer is going to have to continue to do business with the USWNT (and the USMNT, who have publicly supported the drive for equal pay) and, more importantly, the American public. Why on Earth would they want to denigrate about the only good thing coming out of American soccer at the moment?

Let’s recap. The women are undefeated in more than a dozen matches, just swept through the She Believes cup against quality competition, are the two-time defendant champions of the world (with two other World Cups prior), and are gearing up to try and win their fifth gold medal at this summer’s Olympics. By contrast, the men failed to qualify for the last World Cup (to be fair, so did traditional powers Italy, Chile, and the Netherlands), their furthest progression in the Cup came before the Second World War, and they’ve ceded the pole position in the region to Mexico. Oh, and the Olympics? The men haven’t qualified since 2008.

Whether those comparisons are apples to oranges or not is irrelevant. In the public eye, US Soccer has precisely one broadly loved group whom people outside of soccer fanatics care anything about – the USWNT. Building the game in the United States – at all levels, men’s and women’s – requires public support. Pissing off a large swath of the public with arguments like this – even if it’s a winner legally – is a long-term losing proposition. It’s not just my criminal law mind that thinks this is a bad play (in response to this tweet):

USSoccerTweet1

Indeed, the backlash from this filing has been swift and fierce. US Soccer eventually apologized, but the players weren’t buying it. The president of the federation resigned and, apparently, the law firm responsible was fired.

Ultimately, as to what comes next, I think Alexi Lalas has it about right:

USSoccerTweet2

This really isn’t a legal fight. It can’t be won in a courtroom. It’s only going to be won in the court of public opinion and that’s going to require some serious groveling on US Soccer’s part. So, let’s get to it, US Soccer – shut up and settle this thing already!

Please-Shut-Up-Morgan-Freeman-Picture

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