The legal battle led by Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and 25 other U.S. women’s soccer players over alleged gender-based employment discrimination has morphed into a national debate. Presidential candidates have sharply criticized the U.S. Soccer Federation for paying members of the women’s team and men’s team different rates for substantially equal work. Members of the U.S. Senate and U.S. House of Representatives have introduced legislation that would compel equal pay or connect pay more directly to revenue. Meanwhile, commentators have debated measurements of sponsorships, broadcasting rights and other sources of revenue associated with each team.
This saga has consistently been portrayed as one featuring two sides. In one corner are the 28 individuals who represent the best women’s soccer team in the world. In the other, the not-for-profit organization that employs them.
All along, though, there has been a third party to the dispute whose interests may not entirely be aligned with either side, despite her stated goal being the same as the players, and on Monday, this paradigm revealed itself to be a bit more complex.
Former U.S. goalkeeper Hope Solo has brought her own lawsuit against U.S. Soccer over alleged gender-based employment discrimination, doing so independently almost a year ago. This lawsuit has given Solo legal standing to participate in the litigation. Now, she's attempting to intervene in the mediation efforts the players and U.S. Soccer agreed to last month for a few reasons–one of which being that she doesn't think the current active players will do what it takes and risk everything for the sake of the fight once face-to-face with U.S. Soccer.
Here's a closer look at the latest development in the equal pay fight:
The two parallel lawsuits
Solo filed her lawsuit in August 2018, seven months before the 28 players filed their complaint in the U.S. District Court for the Central District of California. Solo also filed her lawsuit in a different federal district court, the District of Northern California.
The two lawsuits are extremely similar and essentially raise the same legal arguments, and it's under review as to whether they'll be consolidated into one on account of them being so similar. Both contend that USWNT is illegally paying women players low wages. Two federal laws, the Equal Pay Act and Title VII of the Civil Rights Act of 1964, are invoked in this argument. These laws make it illegal for employers to differentiate wages on the basis of sex. To the extent there are pay differences, an employer must establish a lawful explanation. For instance, different job responsibilities might explain pay differences. Alternatively, pay differences might constitute economic outcomes produced by seniority systems or collectively bargained terms.
To that point, U.S. Soccer contends that pay disparities between the women’s team and men’s team stem from economic policies negotiated by each of those teams’ unions. The USWNT Players’ Association negotiated a system of rules where players are guaranteed pay and other benefits. By contrast, the USMNT Players’ Association negotiated a system where players are paid if they play; they can also earn various bonuses. U.S. Soccer insists that players should not be able to sue over compensation systems that their own union negotiated.
Whether one system is “better” or “worse” is also not a straightforward assessment. Among other things, it depends on a comparison of how a particular player would fare under each system and then controlling for a cluster of variances, including whether the player’s team wins or loses and who the team plays against. It's anything but a black and white case.
Solo demands to be part of the mediation
In June, the players and U.S. Soccer agreed to try mediation following the completion of the 2019 Women's World Cup. Mediation involves a mediator hearing both sides’ arguments and offering a proposed solution. A mediator’s proposal is not binding—it only goes into effect if both sides agree to follow it.
On Monday, Solo and her two attorneys, Timothy Moppin and Richard Nichols, filed motions to the presiding judge in her case, U.S. District Judge James Donato, and in them they raised serious concerns about the pending mediation efforts.
The USWNT won its fourth World Cup title by defeating the Netherlands 2-0 on July 7, which means that mediation efforts could have started over the last couple of weeks. Solo’s attorneys are concerned that mediation efforts are already occurring without their involvement.
In a motion to Judge Donato, which SI.com obtained, Nichols complains that Jeffrey Kessler, the lead counsel for the 28 players, has not (in the view of Nichols) kept him updated on any mediation. “I emailed [Kessler] to inquire whether or not the mediation with U.S. Soccer had been scheduled. Mr. Kessler responded indicating that, ‘I am sorry but we can’t share any details about the mediation at the moment.’”
In another motion filed Monday, which was also obtained by SI.com, Solo seeks a court order that she be allowed to partake in any mediation. Her motion highlights how even though she and the 28 players share the same legal arguments, their perspectives and goals are different and possibly at odds.
Solo depicts USWNT players as ready to capitulate
Writing on behalf of Solo, Moppin asserts that while both Solo and the 28 players possess the goal of “equal pay,” their strategies are different. Solo is not worried about keeping a job with U.S. Soccer since she no longer plays for the national team. This could empower her to take on a more confrontational approach and to wait out U.S. Soccer in negotiations, too.
Moppin repeatedly takes aim at USWNT players and their representatives, contending that they have a history of “backing down” to U.S. Soccer and “succumbing to the extreme pressure, intimidation, fear of job loss and spots on the Olympics and USWNT.”
The filing criticizes the players for suing U.S. Soccer only to then seek a meeting with Carlos Cordeiro, the president of U.S. Soccer (the request was rejected since U.S. Soccer had been sued). The players are thus depicted by Solo (through her attorney) as naïve.
Similarly, the filing depicts an agreement by USWNT players to mediate as a form of capitulation. Mediation, Moppin writes, represents a “clear indication that the team is poised to, once again, accede to U.S. Soccer’s intimidation and fear tactics, and ‘surrender’ on their demands for equal pay.” He also stresses that Solo is “no longer encumbered by the U.S. Soccer”, which fired her in 2016. “Unlike her former USWNT teammates,” Moppin emphasizes, “Solo’s livelihood is not in any way dependent on a relationship with U.S. Soccer . . . [she] is free to persist and pursue equal pay objectives in the mediation without fear of U.S. Soccer retribution or retaliation.”
Solo probably won’t be welcomed by the players in the mediation
According to The Wall Street Journal, U.S. Soccer has no objection to Solo’s involvement. This makes sense, since U.S. Soccer would like to resolve the entire litigation, rather than just the part involving the 28 players.
It’s unclear if the 28 players and their representatives feel as open to Solo. While Solo and the 28 players have brought, more or less, the same case against U.S. Soccer, they are playing by a different set of rules and care about different interests.
The 37-year-old Solo is no longer a member of the USWNT or any other professional team. She seeks monetary damages for what she describes in her lawsuit as wrongs against her while she was a member of the USWNT. She is not worried about her next paycheck from U.S. Soccer. Barring the unforeseen, Solo will never again work for U.S. Soccer. Likewise, Solo doesn’t have a stake in the complexities of the collective bargaining agreement between USWNT and U.S. Soccer. Should U.S. Soccer agree to a new system to pay USWNT players, any changes would need to be incorporated into the current CBA that runs through 2021—which might be a daunting process.
Solo might also be concerned that U.S. Soccer could strike a deal with the 28 players, thereby leaving her, well, solo. Her case does not depend on the current players but is stronger with them. Indeed, her lawsuit repeatedly refers to herself and “similarly situated players.” Noticeably, it uses the present perfect progressive tense, “have been.” Solo’s case would also be less socially impactful without the involvement of Rapinoe, Morgan and other players whose unprecedented success has vaulted them into the national spotlight.
Mindful that Solo could be decried as a disruptive presence, Moppin stresses that his client “understands and empathizes with the players on the USWNT. Threats of job loss are very real.” To illustrate that point, Moppin attributes U.S. Soccer’s decision to fire Solo as a way “to silence Solo and her persistent push for equal pay.”
Still, Solo’s interests are her interests. Her decision to, through her representation, depict the 28 players as acquiescent and gullible will only widen the gulf. Whether this dynamic prevents a resolution to the litigation remains to be seen. Yet as politicians and influencers opine on the pay of USWNT players, it’s worth remembering that it is a multi-faceted topic where interests go in many directions.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.