The USWNT equal pay lawsuit is becoming a referendum on women’s sports

The United States Women’s National Soccer Team’s equal pay lawsuit took another turn on Thursday night. Both sides, the players and U.S. Soccer, submitted requests for summary judgment, meaning they would like the judge to find in their favor ahead of the trial.

Summary judgment filings are generally a swing for the fences that neither side necessarily expects to win. U.S. Soccer wants the case dismissed entirely, while the players want the judge to find that discrimination took place, so that the forthcoming trial is only about what damages they suffered. Both parties insist that the facts in their favor are indisputable, even though they appear to be very much in dispute.

The USWNT says U.S. Soccer intentionally discriminates against them by paying them at lower rates than the men. U.S. Soccer says several factors in the international soccer landscape mean that the USWNT performs a fundamentally different job than the men. U.S. Soccer says it offered the USWNT an opportunity to adopt the men’s pay structure, but the team opted for a different structure with greater security. The players say they were never offered the same rates as the men. Throughout all the arguments and posturing, it is not yet clear who has more evidence to support their claims.

What’s new from the players’ side is their submission from an expert witness, economist Finnie Cook, who estimates the players could be owed $66.7M in back pay if U.S. Soccer is found to have violated Title VII of the Civil Rights Act, which prevents employers from discriminating on the basis of gender, race, nationality and religion. The players are also suing for liquidated damages under the Equal Pay Act, as well as punitive damages.

In response, U.S. Soccer spelled out why it believes the USWNT doesn’t do equal work to the USMNT. Stephanie Yang has a great breakdown of all the arguments at Stars and Stripes FC, but I’d like to zero in on one particularly depressing line of reasoning presented by the federation’s attorneys: The idea that women’s soccer is worse than men’s soccer.

“U.S. Soccer is aware of the public narrative surrounding this lawsuit,” the federation wrote to open its motion for summary judgment. This serves as a warning: We know we’ve already taken a PR beating, so strap in, because we’ll make ourselves look as bad as we need to in order to win this lawsuit.

The filing revealed that during depositions, U.S. Soccer’s attorneys tried to get USWNT players to admit women’s soccer players are slower and weaker — and therefore worse at soccer — than men. Alex Morgan and Carli Lloyd were repeatedly asked questions about the USWNT’s ability relative to the Under-17 or Under-18 boys’ national teams, and why the USWNT would struggle to defeat those teams head-to-head.

In their filing, the federation’s attorneys also make the case that the USMNT is justified in having higher earning potential than the USWNT because other countries outside of the United States are better at men’s soccer and care more about it. (Emphasis mine.)

The qualifying process for the men’s tournament requires three times as many games and requires the MNT to travel to Mexico, Central America, and the Caribbean over the course of several months, whereas the WNT participates in a two-week qualifying tournament entirely on home turf. Upon qualification, there are 25 percent more teams in the men’s tournament, over a billion more people watch it on television, and there is a vast difference in the potential prize money the tournament organizer (FIFA) pays to participants in the two different tournaments.

The federation goes on to argue that the two teams perform fundamentally different jobs because the USWNT would not succeed if it was required to play against men.

Most fundamentally, these are two separate sports teams who play against entirely different sets of opponents in different competitions, and no one contends that Plaintiffs would have achieved the same success had they been required to compete in the MNT’s world. The law does not ensure equal pay between men and women who perform such different jobs.

The defense later turns to an argument that the USWNT and USMNT do not perform the same work because women are physically weaker than men.

It must also be acknowledged that senior men’s and women’s international soccer require different levels of certain fundamental physical skills central to the game (e.g., speed and strength), which is why FIFA requires separate-sex teams in the first place, and no one is arguing that this sex-based separation, which is designed to ensure women a fair opportunity to play and compete, is unlawful (which it would be in almost any other circumstance).

The USSF is gearing up to debate the value of women’s sports, and that’s awful

I don’t know what evidence U.S. Soccer will use to support these claims at trial, if they will have legal merit or if a jury will buy them. But it appears that they are ready to argue that the USWNT deserve less money because women are inherently worse at sports than men.

This argument goes against everything that the federation’s non-lawyers say about women’s soccer. U.S. Soccer president Carlos Cordeiro and USSF spokespeople have insisted over and over that they value men’s and women’s soccer equally, and that any differences in compensation are only due to FIFA’s prize money gap and the players’ desire for stability over high earning potential.

The federation has regularly called the USWNT the best athletes in the world, regardless of gender. Contrary to that idea, the federation’s lawyers are arguing that women’s soccer has less value than men’s soccer on the basis of biological differences between cisgender men and women.

In essence, USSF’s attorneys are making arguments that run directly contrary to the organization’s stated values. It’s a shocking turn, and federation leadership now has to decide if they’re OK with that.

Personally, I believe federation leadership thinks highly of the USWNT and the future of women’s soccer. I don’t think the people at the top are sexist. In 2017, Cordeiro even took some heat from his predecessor Sunil Gulati for saying “female players have not been treated equally.”

U.S. Soccer has made recent moves that suggest it genuinely cares about its women’s program, including the hires of head coach Vlatko Andonovski, general manager Kate Markgraf and Under-20 manager Laura Harvey, who all seem to have the program on the right track. The federation even has a great plan for synergy between youth and senior teams.

So it genuinely puts a pit in my stomach to see the downright sexist rhetoric that USSF’s lawyers presented Thursday. I can’t imagine what it’s like to be one of the dozens of people working their tails off at the federation to make women’s soccer better, then seeing your organization’s lawyers argue that what you do matters less than what people on the men’s side do.

If USSF’s lawyers take these arguments to trial, they’ll do irreparable damage the federation’s relationship with its players, coaches and fans, even if a jury does find in their favor. There’s no coming back from arguing in court that women’s sports are inherently inferior to men’s.

When the federation puts the value of women’s sports on trial, there will be no winners.