• Charles Olney

The USWNT legal defeat shows the limits of progressive litigation

The United States women’s national team suffered a significant legal defeat on Friday when U.S. District Court Judge Gary Klausner granted summary judgment to US Soccer on the key elements of their pay equity case. While some elements of the case concerning working conditions like travel and playing surfaces may continue, this judgment effectively ends the ‘equal pay’ component of the case.

When the decision was released, many expressed surprise, even shock. It certainly felt far removed from the period (just two months ago) when US Soccer was reeling from bad PR, with President Carlos Cordeiro resigning in disgrace.

But I was not surprised. I have talked at some length in the past six months about my concerns for this case, making the point on many occasions that the social media bubble of bad press may have obscured a fundamentally strong legal position for US Soccer. Sadly, that prediction turned out to be correct. For more detail on all these, you can listen to the 123rd Minute podcast episode I recorded with civil rights attorney and soccer reporter Neil Blackmon.

I don’t want to rehash all those legal arguments here, at least not in great detail. Instead, I want to pull back a little bit and make a broader point about media consumption in cases like this.

The WNT's case was never as strong as it seemed

My sense is that a lot of people were shocked by this ruling because almost all the reporting on this case has come from journalists who are at least sympathetic to the women’s case, with many going beyond sympathy to explicit advocacy.

That isn’t a problem in itself. No one is unbiased, and media norms which try to enforce strict objectivity do serious damage to clarity to no positive end. That is particularly true in cases like this, where there is a clear moral dimension that speaks to critical topics in our larger social world. I’d be far more skeptical of your work if you spent significant time exploring the facts of pay discrimination and didn’t come to some sort of normative conclusions. I also want to be clear that I don’t see any misreporting of facts. We all make mistakes here and there, but overall the reporting has been very accurate.

Nevertheless, there are issues with how the story has propagated into public understanding. In particular, the case has consistently been shaded in one direction.

Journalists face endless choices in presenting their work. What to emphasize? Which elements to treat first? Which claims need simply be reported and which have to be contextualized? When does the opposing argument deserve a response? Should there be a response to the response? Every time a choice is made, new opportunities open while others are closed. And there is never a perfect answer.

In a case like this, where virtually everyone reporting the material brings the same perspective, you’re likely to get a herding effect, with lots of people making the same kinds of choices about framing and emphasis. In aggregate, that can produce a mistaken view of the underlying facts, even when no one has done anything wrong.

Did the US Men save US Soccer by failing to qualify for the World Cup? Probably not.

To illustrate the point, I want to explore one example from the recent decision. Early in his analysis, Judge Klausner notes that the women earned more per game (total compensation of $220,747 per game vs. $212,639 for the men) and then says they have failed to provide evidence to undermine this baseline comparison. Thus: no pay discrimination.

Taken alone, this analysis invites an obvious critique. Namely, it ignores performance. The women earned more because they won most of their games, earning bonuses. The men earned less because they lost games, excluding themselves from large potential World Cup bonuses.

But should this be taken alone? I don’t think so. In reality, Judge Klausner is explicitly rejecting an output-based standard for comparing the value of a contract. As he says: “this approach ignores other benefits received by WNT players, such as guaranteed annual salaries and severance pay—benefits that MNT players do not receive.” Later, he frames these and other aspects of the CBA as ‘insurance’ protections: “One of the defining features of the WNT CBA is its guarantee that players will be compensated regardless of whether they play a match or not…It is difficult to attach a dollar value to this ‘insurance’ benefit…However, there is indisputably economic value to this type of ‘fixed pay’ contract…Indeed, the WNT clearly attached significant economic value to this contractual arrangement because it was willing to agree to lower bonuses in exchange for higher fixed payments.”

When entering contractual negotiations, each party will weigh both risk and potential and seek a deal that satisfies their specific needs. The Equal Pay Act and Title VII obviously do not require that everyone get the same deal. In this instance, the USWNT obtained a protected floor and still earned more than their MNT counterparts. For Klausner, that settles things definitively. But the underlying logic operating here makes clear that determinations of equal pay must include an evaluation of upside and downside, not be limited to the specific ultimate payout.

In this case, Klausner does not treat these insurance benefits as ‘wages’ at all, and does not include them in the per game calculation of payouts. This actually somewhat stacks the deck against US Soccer, in that the payouts from bonuses (upside risk opportunity) are included in wage calculations while the insurance benefits (downside risk protection) are not. The opinion does not even need to factor in this element because Klausner isn't actually worried about comparing outputs; he is simply concerned with establishing that the different terms of the deal are not themselves unequal.

So what does this mean? By some readings, it appears that Klausner is implying that the WNT would have won if the MNT had qualified for Russia 2018, thus kicking in much larger bonuses. This isn't totally implausible, but I also think it misses the point.

Perhaps Klausner would have been less inclined to issue a summary judgment in that case, preferring to let the facts be litigated in trial. Perhaps he would have found evidence of discrimination and then looked to see if that discrimination could be justified. It’s certainly plausible that USSF could defend differential bonuses since those bonuses are themselves tethered to massive inequalities in payouts from FIFA for the men and women.

The point is: this case contains a lot of moving parts. Like any hard case, a lot hinges on where you put the emphasis and externalities abound. But by its nature, reporting in digestible 1000 word doses is going to be less precise than a judicial opinion. It’s also going to be more speculative since analysts want to know what might have been but courts strive hard to stick to the facts as they exist.

So what to make of the speculative premise that the failures of the USMNT to qualify for the World Cup actually ended up saving USSF? There’s certainly enough in Judge Klausner’s opinion to read things that way if you want to score a point. But it doesn’t strike me as an accurate representation of the opinion as written, nor as a strong assessment of what might have happened in that alternate world.

Klausner's decision is susceptible to critique. But it's not obviously wrong on the merits.

I said above that I wasn’t surprised by this outcome, but I also would not have been surprised by a decision for the WNT. It’s a complicated case and a lot depends on which elements you choose to emphasize. Both sides had genuine weak spots in their arguments. The problem is that the weaknesses in the WNT's case rarely got shared. Through aggregation, arguments consistently got piled on one side of the ledger while only grudgingly acknowledging those on the other side. That left readers unprepared for a negative result.

My worry now is that those who were blindsided once will fall back into the same trap again by fixating on the most easily criticized elements and assuming short-sightedness or malfeasance on the part of judge. Many people have noted that he was appointed by George W. Bush, for example, and imputed bias from that fact.

But Judge Klausner is not a villain, inventing arguments from whole cloth and skewing acts to reach some preferred outcome. His opinion was clearly grounded in the blackletter text of the law and in the existing precedent. He wasn’t confused about basic facts. He didn’t misapply any doctrine. It’s a solid, imperfect, but wholly defensible opinion.

Now, there’s no denying that judges appointed by conservative presidents tend to be more conservative themselves. As with many elements of this case, the premise isn't wrong; it's just incomplete. Klausner is a human with biases like any other, and I wouldn't try to deny it. But his most important bias is toward the standard operations of the judicial process.

Courts make poor allies for progressive movements

And that, ultimately is the real issue. Klausner’s opinion probably does reflect a conservative legal philosophy, one that is skeptical of labor-based claims and disengaged from larger issues of gender and society. But that hardly separates him from the rest of the federal judiciary. For the past half-century, judicial appointments have been a battleground. The post-Nixon Republican party has consistently sought to ally itself with conservative legal interests, and has done an excellent job filling the ranks.

But above and beyond partisan fights, judicial reasoning is simply unfriendly to progressive claims in the best of circumstances. Judges are by definition members of the social elite. They are well-educated and well-connected. They are intentionally shielded from political accountability by lifetime appointments. The brief flourishing of liberal decisions from the bench during the 1950s and 1960s has convinced multiple generations that courts are a good avenue for pursuing social change. But the broader scope of American history suggests otherwise.

In fact, legal historians have documented a ‘hollow hope’ effect, whereby movements get drawn to courts by the ‘lure of litigation’ only to find themselves trapped—like bugs drawn to a light and then trapped in flypaper.

This effect is particularly strong in the case of antidiscrimination law, which is relatively weak in its construction, dangerously fixated on finding 'ideal' clients, and which has been further narrowed through decades of judicial interpretation. The standard of proof is far higher in a courtroom than in the court of public opinion, with burdens generally imposed on plaintiffs to conclusively establish intent to discriminate. It’s a very tough ask.

Consider that in this case, the women’s national team have access to excellent legal representation, a public stage on which to present their case, support from prominent political figures, and the fervent backing of millions of fans. And they still could not prevail. Then think about the odds for a single mother on a tight budget with no allies.

The WNT will not take this decision as the end of the fight. They will appeal if possible, and I certainly hope they win. But I wouldn't bet heavily on it. This isn’t a case of a bad judge making a bad decision. This result was perfectly plausible, perfectly foreseeable. As is all too often the case, the real scandal is what’s legal. And the real solution may need to come through the court of public opinion, a far more favorable venue.

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