USWNT sues USSF 2019 version

Ah yes.. The all important "I know more than the experts" refutation. Now, if your claim is that people are relying on comments from people who arent actually experts or extrapolating beyond what the experts have said, then sure. Go crazy. But either way, it isn't the experts that are wrong, it's how people are, or aren't, using the experts.

 

Thank you for posting. I got through the whole thing, and found the detailed account of the MOU and CBA negotiations very interesting.

IANAL, but from my reading, the judge's analysis seemed very reasoned and logical, and even more damning than the "experts" portrayed. I don't know if it was the appropriate application of the law, but it does seem as if the WNT has a mountain to climb, and it will be very tough to win on appeal.

 

The United States Women’s National Soccer Team obviously has concrete grounds for appeal because the Opinion of Judge Klausner omitted the following undisputed facts:

• The USWNT is the Best Team on the Planet.
• The USWNT is the Greatest Team in the Universe.
• The USWNT is the ONLY TEAM THAT MATTERS.
• The USWNT is Completely and Totally Awesome.

As always, I stand ready to act in any capacity if needed - - - Consultant, Percipient Witness, Juror or Judge hearing the Case.

The Ladies have achieved an early start to the next round of CBA negotiations. When trying to move mountains, you must exert the same action that formed them - - constant, intense, unyielding, tremendous pressure.

 

I understand your love of all things USWNT, but the problem with this particular approach is it alienates those fans who like both the USWNT and the USMNT. For a lot of fans in that category, if it became an either/or scenario, which the WNT v. MNT mentality breeds, they would choose the MNT. There has to be an approach that allows for fans to be fans of both teams, and that will ultimately lead to the most revenue generation for both teams (and hopefully results). I feel like Julie Foudy has been the biggest proponent of this way forward that unites the fanbase.

 

I don’t think his post is serious.

 

Even if it's not, that sentiment is definitely out there. That's why I didn't make it personal, but talked about the approach itself.

 

I was confounded by your response (on what you found so egregious) to my post so I threw it over to my Legal Team for review. I understand and agree that this issue has unfortunately created perceived adversaries when none are warranted. To that end, I’m willing to meet you halfway - - - - -

• The USWNT is the ONLY TEAM THAT MATTERS and the USMNT is O.K. too.

You don't know me very well do you

 

This basically deals with the working conditions and related issues. The USSF has already stated it's position on the matter(s), and the pleading footnote clearly indicates that they don't agree, but won't oppose the motion.

The remaining issues that weren't dismissed in the Summary Judgement order are questions for trial. The Judge will have to decide whether the remaining issues have sufficient merit for trial. He may let it go forward on the basis of the USSF claim that all elements of the lawsuit are interrelated. In that case, the basis for the Summary Judgement decision will factor significantly into the Defense.

That's most likely why the USSF didn't oppose the motion. They already know they have a defense for trial, if it gets that far.

 

Here is the first installment of a description of Judge Klausner’s opinion on the Morgan v USSF cross-motions for summary judgment. My main objective will be simply to accurately and objectively describe the decision, free of editorial spin. I will make some of my own comments as I go along. When I do, I will identify them as My Comment.

The Court started with an Introduction. The players were asserting two claims, one under the Equal Pay Act and the other under Title VII of the 1994 Civil Rights Act. The Title VII case is a class action case, with the player class consisting of all players who were members of the Women’s National Team at any time from February 4, 2015 through November 8, 2019 (which was the date the Court certified the class) and also of all players who will be on the WNT on the date of the final judgment, including resolution of all appeals, in the case. The Equal Pay Act case is a Fair Labor Standards Act collective action of all WNT players from March 8, 2016 through the present. (My Comment: I am not versed in the difference between a Title VII class action and an FLSA Equal Pay Act collective action. For practical purposes, I do not think it makes a difference.)

The women had filed a Motion for Partial Summary Judgment (i.e., for summary judgment on some issues). The USSF had filed a blanket Motion for Summary Judgment.

COMING NEXT: The Court’s description of the factual background of the case, starting with facts related to the Men’s National Team.

 

Morgan v USSF, Installment 2:

The Court started with a description of the undisputed facts unless otherwise indicated. It had a paragraph describing the USSF as selecting, funding, training, and managing the US national soccer teams including the WNT and the MNT, each represented by its own union and paid under its own collective bargaining agreement (CBA).

Next are four paragraphs describing the Men’s National Team:

Since 2015, the MNT has played (1) friendlies, (2) World Cup qualifying matches, and (3) other torunaments such as the Gold Cup, Concacaf up, Copa American Centenario, and Concacaf Nations League. In addition, MNT members play for professional clubs such as MLS, LigaMX, Eredivisie, Premier League, and Bundesliga. The USSF does not pay players for playing for professional clubs.

The United States National Soccer Team Players Association (USNSTPA) is the collective bargaining unit for the MNT. The most recent CBA for the team is dated November 20, 2011 and was in effect through December 31, 2018. The USSF has continued to pay the MNT in accord with that agreement since then, with some exceptions.

The MNT CBA is a pay to play agreement: players are not paid unless they participate in a training camp of make a particular roster. In addition, the USSF has no obligation to hold, or field a team for, any matches, tournaments, or events. MNT members do not receive an annual salary. They do, however, receive bonuses based on the team’s performance in matches. For example, from 2011 through 2014 a player on a roster for a friendly against a team ranked 1-10 by FIFA, for a win, would receive a $14,100 bonus. For a tie, the bonus would be $6,500. For a loss, the bonus would be $4,000. The court inludes a parenthetical that the loss bonus is regardless of the opponent’s FIFA rank. [My Comment on the loss bonus: ?] For 2015 through 2018, the bonuses increased to $17,625, $8,125, and $5,000. [My Comment: I assume these latter bonus amounts still are in effect.]

The highest bonuses available to the men under their CBA are for the World Cup. If the men had qualified for the 2018 World Cup, which they did not, then the USSF would have paid $2.5 million to the MNT player pool. Each player on the World Cup roster would have received an additional $68,750 bonus. For advancement to the semi-finals, the player pool payment would have been $5.625 million. For winning the Cup, the payment would have been $9.375 million. [My Comment: The Court does not state how the payments into the player pool will be divied up.]​

 

1) That's the minimum fee. It's phrased as a "bonus", but I don't believe there is any other payment for a game a player is dressed for (other than sponsor event appearance fees and non-wage per diems and stuff like that). At one point, I'm not sure players were paid for being in camp (other than having expenses covered and per diems), but that could be wrong. So the $4k doesn't cover just the game, but the travel days and warm-up days (for short FIFA periods).

2) Nor should it. That's up the the players union to figure out. And that's also a huge difference between the two unions. I do believe that USSF, or possibly the current head coach, designates the "player pool", but union membership is available to anyone that dresses for a game. As far as I know, the WNT union is far, far, more restrictive. To the point that one of the behind the scenes machinations that got Tom Sermanni fired is that he was a FIFA window or two from greatly increasing the number of players with enough caps to be eligible to join the USWNTPA.

2b) And it is really hard to overstress just how important a difference that is between the two unions. It's real easy for the "23" from France to outvote Casey Short and McCall Zerboni when deciding what is important to the union, but the men's union has more Shorts and Zerbonis than it does a comparable "23". Getting paid more each time you show up is far more important to the chorus if you don't think you're in line to get tagged as a "Federation Player" and get a salary, maternity benefits, and the other things that go along with it. Frankly, I think if the WNTPA had the same eligibility to join and vote requirements as the MNTPA, most of the issues would resolve themselves - hence Sermanni's ouster - which served to protect the entrenched interests. Let's not forget that the WNT negotiated a clause with USSF that game the "Federation Players" NWSL wage supremacy without including the NWSL players (or owners) in the negotiations, nor the fact in World Cup and Olympic years the WNT roster players were guaranteed hire pay while missing up to half (or say like NWSL Second Best XI defender Kelley O'Hara - 3/4ths) of the season.

 

Morgan v USSF, Installment 3:

The next portion of the decision covers facts related to the WNT. This will be the first of my installments on the facts set out by the court:

Unlike the MNT, the WNT has achieved largely unrivaled success, winning Four World cup titles and four Olympic gold medals. Since 2015, the women have played (1) friendlies, (2) the Olympics and associated qualifying matches (the MNT does not compete in the Olympics, rather the U23 MNT does with the ability to add 3 over 23 players after qualifying), (3) the World Cup and associated qualifying matches, and (4) other tournaments such as She Believes, the Tournament of Nations, and the Algarve Cup. In addition, since 2013 most WNT players have played for a professional club, many in the NWSL which is the top-tier league in the US.

The USWNT Players Association is the collective bargaining agent for the WNT players. The first collective bargaining agreement expired at the end of 2004. The second ran from 2005 through 2012.

In 2012, the WNTPA and the USSF began negotiations for a successor to the 2005-2012 agreement. On November 1, 2012, the WNTPA gave the USSF a memorandum containing a proposal for a new CBA. Among other things, the proposal included the following, none of which were in the MNT CBA:

(1) At all times, there must be at least 27 players under contract;

(2) There must be injury protection that protects the player for the length of the injury or one year from the date of the injury, whichever is shorter;

(3) There must be severance pay for all players;

(4) There must be dental insurance;

(5) There must be an agreed on number of games;

(6) There must be a set amount of break time for salaried players; and

(7) There must be day care for matches.
​

In addition, the proposal required per diem expenses equal to those provided for in the MNT current contract. The proposal also requested improvements in compensation tied to friendlies and the World Cup, but did not request that the amounts be the same as for the MNT.

The November 1 memorandum also contained a section related to the NWSL. Although the NWSL was not functional yet, the USSF had informed the WNTPA that the USSF wanted to assist in starting a new top-tier women’s professional soccer league in 2013. The memorandum requested health insurance and injury protection for all NWSL players. It requested housing expenses for all WNT players while playing in the League. And, it apparently asked a number of question about the NWSL.

On December 4, 2012, the USSF gave the WNTPS its initial proposal for a new CBA. Among other things, it proposed:

(1) There will be 24 players under contract receiving an annual salary;

(2) Per diems equal to those for the MNT;

(3) A $1.8 million payment to players for Victory Tours after both the 2015 World Cup and the 2016 Olympics [My Comment: It is not competely clear whether there was to be one $1.8 million payment covering both events or a separate $1.8 million payment for each event. It is not stated how the payment would be distributed among the players.];

(4) Various bonuses for success in the Olympics;

(5) Annual housing allowances for players in the NWSL.
​

Except for the per diems, the MNT CBA did not include any of these items.

In addition but not in the December 4 proposal, the USSF orally offered an additional $200,000 to be applied to bonuses related to the World Cup and/or Olympics, as determined by the WNTPA.

On December 6, the WNTPA sent the USSF a summary of where the WNTPA understood the negotiations to be:

The USSF financial proposal was acceptable if 25 outstanding items could be resolved. These included, but were not limited to:

(1) If the WNT did not win the World Cup or the Olympics, the USSF would either:

(a) Distribute $400,000 among the players;

(b) Give the players a ranking bonus; or

(c) Give the players a ticket bonus based on the number of tickets sold.

The USSF initially rejected this but ultimately agreed to a ticket bonus.
​

(2) There should be 3 months of severance benefits if the USSF terminated the contract of any salaried player.

(3) There should be a one-year period of salary continuation during periods of injury. In addition, there should be 3 months of salary continuation on return from injury and from pregnancy leave.

The USSF initially rejected these two proposals but ultimately agreed to them

[My Comment: There is no description of what the other items were that needed to be resolved.]​

[My Comment: The next installment will cover the continuation of negotiations in 2013, ultimately resulting in a WNTPA/USSF Memorandum of Understanding.]

 

Reading Stephanie Borchers twitter thread on the subject is interesting. Summarizing as best I can, she says that if the USWNT and the USMNT are indeed performing the same work for the same employer, as the USWNT contends, that USSF is breaking the law by negotiating with them separately, and if the USWNT wins it would necessitate one CBA with both groups as one union.

Finally read the EPA ruling. Which led me to read all the pleadings leading up to it, bc the decision created more questions than answers. Bottom line: the judge dodged the question you HAVE to answer (and that USSF nosedived by saying women are inferior) to make an 1/2 pic.twitter.com/7IFQxQjVDA

— Stephanie Hamilton (@StephBorchers) May 13, 2020

 

I can pretty much assure you the current makeup of the USWNTPA does not want a combined CBA, though it's possible the wider pool of potential WNT players might.

 

I think it was Prof Bank that said this, but I saw on Twitter that just because they have a single CBA it doesn't mean they can't have different compensations. As long as the total compensation works out to be equal, the USWNT could continue to get guaranteed contracts, while the USMNT continues with the paid to play method.

However, I wonder if they could keep the different membership criteria..

 

Of course there's a simple solution to many of the non-FIFA payout issues: time.

Just like the transition the MNT in the early 90's went through. For our younger readers, most of the USMNT was under direct contract to USSF in the years leading up to the 1994 World Cup. The USMNT operated, as the USWNT does today - a club. This gave much of the player pool steady work and a steady income - as there were few USA players with 1) professional soccer jobs that 2) involved actual playing time.

Many of the pool got jobs after the World Cup, and MLS's launch in 1996 made USSF having players under contract basically moot.

We are now in the 11th of the last 12 (8 in a row) years of having a fully professional women's soccer league. Instead of U.S. Soccer having twenty something players under direct contract, it's time to have those players sign with their professional clubs.

A joint USMNT/USWNT CBA could contain a clause allowing for out of contract players (like Abby Wambach in 2015) to be "under contract", but it should be an either/or situation. Either you have a club, or you're a national team player - not both.

And the clause guaranteeing a minimum number of games is antithetical to the WNT being merit based. Nobody should be guaranteed camps or games.

 

How would this even be possible? Total compensation would vary for the men based on their performance. Will they take a pay cut if the men suck? Average pay is going to end up being higher for women because of the self imposed pool limit.

The men's money is just not friendlies and the world cup. There is word cup qualifying, copa America, confed cup, nations league, god cup, and whatever you want to call the games vs Mexico. The bonus money does not exist for the women in this form. As much as they like to throw around the world cup bonus for the men, they seemed to have negotiated a percentage of the prize money as bonuses. They don't get 100% and that's even with the prize money for making the world cup basically being the same as winning the WWC.

I can't go to a car dealership and complain that my 2006 camry is not a hybrid when Toyota (the company) is responsible for making a decision to start making hybrids in 2007.

 

Morgan v USSF, Installment 4:

The next portion of the decision’s description of the facts covers the 2013 negotiations between the WNTPA and the USSF:

On February 20, 2013, the USSF made a counter-proposal. It broke the negotiations into four sets of issues: (1) financial, (2) lifestyle, (3) league (NWSL), and (4) marketing. It characterized the USSF financial counterproposal as revised to reflect the WNTPA’s apparent priorities, thus increasing the guaranteed compensation at the expense of the non-guaranteed (bonuses) compensation. It increased the base compensation for contracted players by 15% and proposed tiket revenue of $1.20 per ticket for all USSF-promoted home games (my emphasis). In addition, it added a payment of $200,000 to be allocated to non-guaranteed compensation. [My Comment: Presumably, the non-guaranteed compensation was to be distributed as determined by the WNTPA.] The USSF proposed to increase the number of contracted players to 24 and to three months’ severance pay for contracted players.

The USSF counter-proposal stated that the USSF had reservations about the WNTPA’s proposal to cover National Team and NWSL commitments in the same agreement, but that the USSF was willing to work to see if that could be accomplished.

The USSF countered on other items including injury protection, daycare/nanny services, and travel.

[My Comment: The court’s description of the USSF counter-proposal is no more specific than what I just described.]

On February 28, 2013, the WNTPA responded with a further counter-proposal. They stated that NWSL salaries were important and that they needed to have only one contract covering both the National Team and the NWSL. They said they needed to agree on WNT salaries in case at some time under the contract the NWSL were to go away.

[My Comment: The court provided no further description of the February 28 counter-proposal.]

On March 5, 2013, the USSF provided an updated proposal. The USSF said that if the players wanted to accept a minimum of 20 players under contract, then the USSF would be willing to look at some other issues in a different light.

[My Comment: The court provided no further description of the updated proposal.]

On March 19, 2013, the WNTPA and USSF signed a Memorandum of Understanding setting out an agreement on a 2013-2016 CBA. The WNTPA unanimously approved the MOU. The agreement consisted of the 2005-2012 CBA, as modified by the MOU. Under the MOU, the USSF agreed to:

(1) A minimum number of contracted players;

(2) Annual salaries for WNT partipation;

(3) Annual salaries for NWSL participation;

(4) A guaranteed 15% increase in the WNT salary if the NWSL were to go away or if the USSF were to pull its support from the NWSL;

(5) Severance benefits;

(6) Salary continuation during periods of injury;

(7) Medical, dental, and vision insurance; and

(8) Childcare assistance, including pay for the person providing childcare and airfare and hotel accommodations for childcare providers.
​

The above items were not provided for in the MNT CBA.

[My Comment: The court next describes events that started in December 2015 and leading to signing of a new CBA in 2017. I will start covering that part of the decision in my next installment.]

 

Morgan v USSF, Installment 5:

The court now has arrived at late 2015.

The WNTPA brought on a new Executive Director and General Counsel in 2015, Rich Nichols. On December 24, 2015, he sent a letter to USSF giving notice of the WNTPA’s itent to terminate their agreement with USSF. On January 4, 2016, Nichols gave the USSF a proposal for a new CBA. Among other things, the proposal asked for:

1. For USSF to pay the WNTPA $4.2 million for the exclusive rights to market the WNT;

2. A minimum of 30 players on contract;

3. A WNT salary of $150,000 for each contract player; and

4. A NWSL salary of $100,000 per player.

Note: Under the then-existing agreement, there were three tiers of WNT salaries: $72,000, $51,000, and $36,000; and NWSL salaries ranging from $46,000 to $56,000, depending on the year and on the status of the player.
​

The proposal also requested:

5. 401(k) retirement contributions;

6. Lifetime long-term disability insurance and a post-retirement healthcare fund;

7. A $3 million payment for a 3-game Victory Tour following the World Cup and the Olympics [My Comment: The court does not explicitly state whether this was one $3 million payment or two with one after each event.]; and

8. An individual childcare professional for each player with a child, with USSF covering the provider’s annual salary, benefits, travel expenses, and lodging expenses.
​

In addition, the proposal asked for the bonus compensation structure and amounts to be paid to the MNT as provided for in their current CBA, so that the bonus payments to be paid to the WNT would be the same as the payments to be paid to the MNT.

On March 15, 2016, at a meeting of the WNTPA and the USSF, the USSF asked the WNTPA to clarify its bonus proposal. The WNTPA said it wanted the same bonuses for Women’s World Cup participation as the MNT would receive for their World Cup participation. The USSF said that if FIFA would increase its payments to soccer federations for the Women’s World Cup, then USSF could consider increasing the amounts it paid to the WNT for participating in it.

In May 9-13, 2016, the USSF gave a proposal to the WNTPA. The proposal was for a pay-to-play structure. It included the same per diem, camp fee (payment to a player called into camp but not making the roster of a game associated with the camp), ticket revenue share payment, and friendly appearance fee as provided for in the MNT CBA. In addition, it provided for bonuses for winning or tying friendlies (varying based on the opponents’ FIFA ranks) and bonuses associatged with the World Cup, all of which bonuses were lower than those provided for in the MNT CBA. The proposal also included bonuses for winning She Believes and bonuses associated with the Olympics.

On May 16, 2016, the WNTPA and USSF met again. The WNTPA said the players liked the structure of the USSF proposal, but they needed a guaranteed minimum payment of $100,000 per player per year. The USSF said that with pay-to-play, there are no guarantees. The WNTPA replied that the WNT players work in a different environment, which makes pay-to-play more difficult for them. [My Comment: I assume this is referring to the men’s club compensation being much greater than the women’s.] They discussed whether and how the concept of a minimum guarantee would work in a pay-to-play agreement.

[My Comment: The next installment will continue with how the negotiations went.]

 

Is this the proposal that made the Judge conclude that the women had rejected the men's bonuses, which was the crux of his ruling?

If so, it seems error on its face. Or at the very least an interpretation of a disputed material fact which should've gone to the jury,

 

Morgan v USSF, Installment 6:

[My Comment: The answer to the previous question is that there are more negotiations to come.]

More of the undisputed facts:

On June 1, 2016, the WNTPA gave the USSF details of a Minimum Annual Guaranteed (MAG) Compensation system. The system asked for a minimum compensation of $5,000 per game as the MNT players were receiving. This was the minimum amount the MNT players received at that time for playing in a game under their CBA (described as a loss bonus). In addition, however, the system proposed provided that if the women did not play at last 20 games in a year, each WNT contract player would receive a minimum annual guaranteed amount of $100,000. At the same time, the WNTPA said its position was that it wanted the same pay per play compensation and bonus system as the USSF had with the MNT. Further, the $100,000 MAG amount was based on the assumption that the USSF would continue to provide compensation for the WNT players playing in the NWSL. If the USSF were to discontinue payment of the amount of that compensation, to reduce the amount it contributed for that compensation, or to reduce its financial support of the NWSL, then that might affect the MAG amount. As proposed earlier, this was based on a minimum of 30 contracted players per year. And, the MAG would continue during injuries, there would be 3 months’ severance on contract termination, and there would be post-termination health insurance for one year.

On June 16, 2016, the USSF responded to the June 1 concept as it supplemented prior WNTPA proposals. The USSF stated that it supported the concept of equitable and fair pay, but that the proposal went well beyond that. In addition to demanding the same compensation and bonus system that the MNT had, it wanted guarantees of minimum annual compensation and minimum number of games that the MNT did not have, automatic increases in compensation if the MNT received increases whereas the MNT did not have a similar provision if the WNT received increases, a guaranteed number of contracted players each year which the men did not have, injury guarantees that the men did not have, pregnancy guarantees that the men did not have, post-termination health insurance that the men did not have, retirement benefits that the men did not have, and significant financial support of a professional league that the men did not have. The USSF characterized the WNTPA proposal as wanting the benefits of the higher payouts under the MNT pay to play system, but instead of the down-side risks the MNT had with that system, the WNTPA wanted guarantees.

[My Comment: There are more negotiations that I will cover in the next installments. As I am going through this with attention to detail, it is appearing to me that one of the key things being wrestled over was that underlying the WNT demands was a desire to come as close as possible to being in the same overall position as the men. By overall, I mean the men’s position including that they had significant compensation, benefits, and security through the clubs they played for. Thus for the women, the men did not have a pure pay to play model, rather they did have guarantees albeit from a different source than the USSF. Since the women did not have equivalent club guarantees, they wanted them from the USSF. The USSF, on the other hand, looked at it in terms of only what it provided to the men -- greater up-side benefits but also greater down-side risks. It disclaims responsibility for, or the obligation to rectify, men’s club vs women’s club compensation differences.]

 

Not sure about that. If you like a structure, but don't like the amounts, you negotiate on the amounts. If you don't like a structure, regardless of the amounts, you dismiss that out of hand. It is the latter that occurred. The women wanted guaranteed salaries, not a purely bonus based contract, like the men.