This is a lot generalizing, that ignores plenty of attorneys who help right many wrongs, while also ignoring that without a legal system we'd literally be lawless. Also lawyers don't write law, at least not in the US. That is Congress. So.... yeah.
and the vast majority of congress is lawyers. Also most of the wrongs that lawyers right have there origins in stuff that were done or facilitated by lawyers. Lawyers are part of a group of people whose only reason to exist is to make money. In other words they are simply well upholstered parasites. Lawyers have created the society where lawyers are required to prevent lawlessness. Our current legal system is so complex and so flawed that it assures that lawyers will always have plenty to do and most of what they do does not even remotely resemble justice. The ultimate purpose of "law" is to make work for the lawyers.
Morgan v USSF, installment 11: [My Comments: I am up to the non-facts part of the decision and am not particularly looking forward to it, as I have been most interested in what the facts are about the negotiations and the CBA itself. Plus, the legal analysis part of the decision no doubt will be murkier and more abstract. But, we will see how it goes. I have some of my own observations about the facts. First, the USSF never offered the WNTPA the same terms as were in the MNT CBA. At best, the USSF was willing to discuss terms similar to the MNT CBA for games controlled by the USSF. This willingness thus did not include the terms that related to the World Cup. And, the USSF made it clear it would not give the WNTPA the same World Cup terms as the MNT CBA had, stating that doing so would break the USSF. Second, the WNTPA never proposed to the USSF that the WNTPA have the same terms as were in the MNT CBA. In particular, the WNTPA was not willing to work under a pure pay-to-play agreement but rather insisted on more security for its players such as certain numbers of players with guaranteed contracts, USSF payment of NWSL salaries for certain numbers of allocated players (or equivalent replacement payments if the NWSL were to fold), guaranteed numbers of games, and guaranteed salaries. Third, the WNTPA was not trying to limit the number of players with guaranteed contracts or the number of NWSL allocated players and in fact tried to increase these numbers. It was the USSF that was trying to limit the numbers. It is true that the guarantee nature of what the WNTPA was asking for meant that there would be a defined cost per player, which naturally would cause the USSF to want to limit the numbers of contracted and allocated players in order to limit its overall cost of the CBA, but the players wanted greater numbers of contracted and allocated players. Fourth, so far as I can recall, the decision does not mention the fact that the FIFA payments for World Cup prizes go to the federations, not to the players, and that the federations can distribute the prize money however they deem appropriate. I refer to this because the USSF, in negotiating the MNT CBA, could have limited the World Cup bonuses to an amount that it would have been willing to pay the WNTPA for World Cup bonuses. This would have resulted in the MNT and WNT CBAs having identical World Cup bonus provisions, and it would not have broken the USSF if the women were to become entitled to the maximum World Cup bonuses. This, of course, would have meant the MNT would have had lesser World Cup bonuses than are provided in their current CBA, but those bonuses (other than for qualification) are largely symbolic anyway as the MNT likelihood of qualifying for World Cup bonuses is low. So, back to the decision. I will paraphrase some for clarity purposes but otherwise will try to be as true to the decision as possible.] In order for a court to grant a summary judgment, there must be no genuine issue as to any material fact and the party asking for the summary judgment, based on the material facts, must be entitled to judgment as a matter of law. Facts are material only if, were they different, the outcome after applying the law to the facts would be different. A dispute about a fact is genuine only if one reasonable person could believe one side’s version of the fact and another reasonable person could believe the other side’s version. [My Comment: In federal courts these days, there are pre-trial procedural requirements such as submissions of proposed statements of facts and submissions of identifications of the specific facts proposed by the other side that you disagree with and identification of the evidence on which you base your disagreement. The purpose of these procedures is to identify all undisputed facts and all disputed facts, if any, plus the specific evidence related to the disputed facts.] The WNTPA has two basic legal claims. One is that the USSF discriminates against its female national team players by paying them less than its male national team players. This claim is under the federal Equal Pay Act. The other claim is that the USSF subjects its female national team players to poorer working conditions than its male national team players. This claim is under Title VII of the Civil Rights Act of 1994. The WNTPA and the USSF each asked for summary judgment on both claims. [My Comment: This means that they both asserted that there are no genuine issues of material fact. Put differently, they each asserted that this case is not about what the facts are, but rather is about what the law is and how it applies to the facts.] [My Comment: In my next installment, I will start into the court’s discussion of the Equal Pay Act claim. Covering that may take several installments.]
Lol. Holy crap. What did a lawyer do to you? Must have been horrible for you to firm such a negative opinion of them.
i think you would be hard pressed to find a list of "Most Despised Professions" that Attorneys are not at or near the top. Unlike CPA's, who are universally viewed as sweet and lovable and generally.............can do no wrong.
Or worse than lawless. Being mad because a soccer suit ain't going your way is understandable. Lumping those lawyers in with men like Thurgood Marshall is asinine. I'm sure that wasn't F0F's intent, but we have to be very careful in suggesting that there be no people trained in interpreting and hopefully changing the way laws work against the most vulnerable. I certainly would not be allowed to post on social media today without the good work of lawyers in the past. This is what happens when we paint with such a broad brush.
Looking forward to you reviewing the part of the holding that discusses this... If indeed, as I recall, the Court stated that the women had rejected the same bonus terms as a basis for its holding that the CBA negotiations should prevail, it would be interesting to see how the Appellate Court handles this. For those of you who don't know, the EPA act specifically says that a CBA is normally not a defense. This was the Court's way of getting around this general rule. " CFR 29 § 1620.23 Collective bargaining agreements not a defense. The establishment by collective bargaining or inclusion in a collective bargaining agreement of unequal rates of pay does not constitute a defense available to either an employer or to a labor organization. Any and all provisions in a collective bargaining agreement which provide unequal rates of pay in conflict with the requirements of the EPA are null and void and of no effect."
The "good' lawyers are such a tiny, in fact minuscule, minority of the whole legal profession that they almost should be called by a different name. But even the few lawyers that try to do good actually harm society by perpetuating the need for the legal profession. I do not know what can be done at this point to fix our society but I believe something should be done, not using lawyers, to get the lawyers and businessmen that make nothing but money out of positions of power. It used to be that you could count on "enlightened self interest" to mitigate the effects of the wrong lawyers do but now the word "enlightened" has disappeared and the vast majority of lawyers and the few politicians that are not lawyers are only in it for "self interest." This lawsuit just serves to show that the lawyers don't even try for justice but rather they try for what will make them look the best. Justice is a difficult concept but that is what we should be looking for not trying to to fit anything we come up with into the preconceived notion of "contracts" and "law." BTW: I would be in favor of all the contracts being torn up and then starting from scratch with three way negotiations with the men, women and US soccer and no lawyers even in the same building and said lawyers not be allowed to even act as advisors and no lawyer getting a dime.
I don't have a problem with that. But there wouldn't be consensus on what is "good" and what isn't. "Enlightened self-interest" wasn't ever enlightened. That's why Marshall and others like him were and are necessary. You have to overcome the political leanings of people who don't agree with you, and that means taking legal action. There isn't another way. The USSF has been sued. Should no one accept the task of defending them legally? I mean, it is what it is. If we all operated on what we perceive to be our own best interests OR what we believe to be the best interests of the whole, nothing would change, because there isn't consensus on any of it. Make no mistake- once a lawyer is hired, yeah, s/he's placed into an adversarial situation with another lawyer, and the one who wins can use that as proof of her/his legal ability. If they win, others will hire them. But the job is to do what it takes to win for your client, period. I brought up the Civil Rights Movement attorneys because that's a perfect example of how justice has to be forced upon the unjust. Otherwise, it comes more slowly or not at all. It doesn't just get there because people with different views sat down at the table and hashed it out. How would you feel if the men said, "NT service is an honor. I'm good with a per diem and travel pay"? The first sentence is true and the statement is just. But it wouldn't help the women at all. If I were to say that the "Just" you're looking for is the women being paid enough money as footballers to not have to quit early or subsidize their income elsewhere (and therefore not be able to devote all their time to football), would I be even partially right? The USSF is subsidizing American woso because it gets them World Cups. That's a good deal for both, IMO. But there's no greater good in soccer that there isn't in any other sport, at any level, or any other arena of life. Maxine Waters and AOC are as worthy of being role models as Carli Lloyd or Mia Hamm, and the stakes are a lot higher where they do their thing.
Just curious. What would be the point of negotiating any sort of contract in your world without lawyers?
The point would be to come up with a contract that could be read and understood by humans. The reality is that it will not happen because lawyers will not let it and lawyers have convinced most people that humans cannot do business without lawyers to make sure other lawyers do not rock the boat too much. We have allowed lawyers to take over virtually all parts of our lives and it is to late to change that but just because there is no alternative does not make it right.
It's like Trutherism, but with lawyers instead of shadowy, extra-governmental forces, and possibly the Israelis.
Needing lawyers to translate stuff isn't new, and we didn't allow anything. It's always been that way. Parts of this... https://www.heritage.org/constitution?gclid=EAIaIQobChMI6Zn7wpnJ6QIVBdbACh0G4QIuEAAYASAAEgLfAfD_BwE ...are still being debated.
That's completely unrealistic. You can't get humans to agree on the meaning of the wording in a poorly translated version of the Bible, and they've been at it for 500 years. (They also can't agree on meaning of pretty much every extant version, but that's another topic). Language has enough ambiguity in definition both over distance (cf: bloody in England vs the United States) and time (and like short periods of time, not just generational time). The "law" and legal professions are there to create well-defined rules and contracts, as well as fill in the gray areas as they are exposed. I mean have you seen the Major League Baseball rule book? There are people's whose hobby it is just to find things that aren't defined. The works of Kurt Gödel are instructive on the ability to create self-consistent sets of rules (hint: outlook not good). So, sure, let's throw out the baby with the bathwater. Lawyers are bad mmkay?
Morgan v USSF, installment 12 [court discussion about the Equal Pay Act claim]: The relevant part of the Equal Pay Act states: "No employer ... shall discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or qualilty of production; or (iv) a differential based on any other factor other than sex." Based on the EPA, the WNTPA has the initial burden of showing that: 1. They performed substantially equal work as the MNT players; 2. They performed the work under similar working conditions; and 3. The MNT players were paid more. If the WNTPA shows those three things, then the USSF must show that the wage differential is based on one of the four EPA exceptions (items i through iv, above). Starting with item 3: Were the MNT players paid more than the WNT players? According to regulations adopted under the EPA, "wages" includes all payments made to or on behalf of the players as compensation for their employment. Wages include "all forms of compensation irrespective of time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name." They also include fringe benefits including "medical, hospital, accident, life insurance and retirement benefits; profit sharing and bonus plans; leave; and other such concepts. [My Comment: The EPA is a law adopted by Congress. The references to "regulations" are to regulations adopted by the Executive branch department assigned the responsibility of administering the EPA. The regulations are published in the Code of Federal Regulations, referred to as the CFR. So Congress adopts the law and the Executive branch adopts regulations stating how it interprets and will apply the law. Unless a party to a lawsuit challenges the validity of the Executive branch regulations, a court ordinarily will treat the regulations as valid.] The WNTPA’s position is that "the written terms of the relevant CBAs establish as a matter of undisputed fact that USSF has paid WNT players at a rate less than MNT players ..." (quoting the WNTPA). The WNTPA takes this position based on two primary arguments: 1. The WNT CBA provides lower bonuses than the MNT CBA provides for friendlies, World Cup-related games, and other tournaments; and 2. The WNT players would have been paid more if they had been compensated under the MNT CBA, even with all fringe benefits being considered. The USSF position is that the WNT players are not paid at a rate less than MNT players. It focuses on the total compensation paid to the players under their CBAs. It argues that when considering total compensation, the WNT players received more money than MNT players, both on a cumulative and on an average game basis. Specifically, its position is that from 2015 through 2019, payments to the WNT totaled $24.5 million and averaged $220,747 per game whereas payments to the MNT totaled $18.5 million and averaged $212,639 per game. USSF’s position on what the law means is that total compensation is the right method for comparison where there is more than one category of wages -- higher pay in one category can offset lower pay in another category. [My Comment: These numbers appear to be calculations derived in part from data that the court did not set out in its statement of the undisputed facts. In addition, the court did not set out these numbers in its statement of the undisputed facts. Personally, I think it is poor drafting for the judge not to have included these in the statement of undisputed facts. Nevertheless, it at least appears that the WNTPA does not question the numbers, rather it only questions their significance.] The WNTPA could have countered the USSF position by producing evidence that although its total compensation was greater, this was due to its players working more than the MNT players, so that their pay still was lower on a per-unit-of-work basis. The WNTPA, however, did not produce evidence of this. Rather, from 2015 through 2019 the WNT played 111 games receiving a total of $24.5 million or $220,747 per game; and the MNT played 87 games receiving a total of $18.5 million or $212,639 per game. Thus the WNT did play more games, but it also made more per game than the MNT. The WNTPA focuses on a comparison of CBA bonuses for friendlies, World Cup-related games, and other tournaments. They assert there is an EPA violation because the WNT bonuses are smaller -- in other words, the WNTPA asserts that under the EPA these bonuses must be considered in isolation rather than as part of a total compensation package. This, however, would be inconsistent with the EPA and the CFR regulations adopted under it, which define wages as including all forms of compensation. The court therefore rejects the WNTPA position that they were paid less simply due to the unequal bonus provisions. [My Comment: Obviously, this is a key ruling in the case.]
Morgan v USSF, installment 13 (more court discussion about the Equal Pay Act claim): One more note on the information in installment 12: The WNTPA did not argue that the overall and per game amounts paid under the WNT CBA and the MNT CBA were apples and oranges comparisons because different numbers of players were covered under the two CBAs. The court stated that if the there were different numbers of players covered, it would alter its analysis. An additional WNTPA argument was that they were paid less than the MNT because, if they had been paid under the MNT CBA, they would have made more than they did under their own CBA. The court rejected this argument because "it ignores the reality that the MNT and WNT bargained for different agreements which reflect their different preferences, and that the WNT explicitly rejected the terms they now seek to retroactively impose on themselves." In January 2016, the WNTPA did ask for bonuses equal to those under the MNT CBA. The WNTPA did not, however, ask for them as part of a CBA otherwise the same as the MNT pay-to-play CBA but instead asked for them without the drawbacks of the MNT CBA such as no base salary. For this reason, the USSF rejected that proposal. "In May 2016, USSF offered the WNT a pay-to-play proposal similar to the MNT CBA but the WNT rejected it, preferring an agreement that involved some element of guaranteed compensation." The court states that the WNTPA and USSF attempted to work out "such an agreement," but ultimately ended up with the 2017 CBA. "This history of negotiations between the parties demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forego higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. ... [T]his method of comparison ... fails to account for the choices made during collective bargaining." [My Comment: The above may be where some have interpreted the court’s decision as saying the USSF offered the WNT a proposal the same as the MNT CBA. The court did not say that, but rather said the USSF offered a proposal similar to and with the same structure as the MNT CBA. To me, this seems like it may be a weakness in the decision -- making it possibly arguable that the court was equating the offer of a similar or similarly structured proposal with the offer of the same proposal, even though USSF had been firm that it would not agree to the same terms as the MNT CBA because of the amounts of the MNT CBA World Cup bonuses. This appears to put the WNTPA in the position of being able to argue that if they could have gotten all equal bonuses, including the MNT CBA World Cup bonuses, they might have been willing to give up their proposal’s elements that differed from the MNT CBA. During bargaining, they never got to make the "choice" of having the same terms as in the MNT CBA because the USSF refused to consider giving them the same World Cup bonuses as provided in the MNT CBA. Since the above seems to me a critical part of the court’s analysis, I am going to stop this installment here. I will continue on a further description of the analysis in my next installment.]
This thread has gone on so long, that I don't know if I posted this article by a former Federal Court Judge and active appellate attorney yet: https://reason.com/2020/05/02/a-dubious-summary-judgment-grant-against-the-u-s-womens-soccer-team/ He sees the Court as improperly deciding numerous fact issues. It will be interesting to see if the Appellate Court agrees with him.... FYI, this attorney just filed the Courtney Wild en banc appeal in the Jeffrey Epstein case. Which might not have gotten that much national press, but is a pretty big deal here in Palm Beach County!!!
Looking at the author’s resume, he looks like he should know what he’s talking about, it is very impressive.
Morgan v USSF, installment 14 (more court discussion about the Equal Pay Act claim): The WNTPA position that their lesser bonus structure establishes pay discrimination ignores the economic value of the "insurance" the WNT received under its CBA. The WNT players received a guarantee of pay whether they played in a game or not. This is different than the MNT, who are paid only if called into camp and then participating in a game. "It is difficult to attach a dollar value to this ‘insurance’ benefit, and neither party attempts to do so here." Court Footnote: "The Court does not suggest that the economic value of this ‘insurance’ benefit should be considered a form of ‘wages’ under the EPA." Nevertheless, "there is indisputably economic value to this type of ‘fixed pay’ contract, as compared to a ‘performance pay’ contract." [My Comment: To me, it is hard to make complete sense of the court’s statements about this, when putting them all together. The court appears to be saying the guarantees having an economic value apart from the dollars associated with the guarantees. It concedes that there is no evidence as to what that economic value is. And in its footnote, it says that economic value is not part of wages. Earlier, it quoted the Equal Pay Act as saying that wages include all forms of compensation. This leaves me with the question, If the economic value of having guarantees is not wages and thus is not a form of compensation, why is the court even discussing it? Further, I have doubts about the court saying the guarantees "indisputably" have economic value separate from the dollar amounts guaranteed. When I did my federal district court clerkship (back in the Dark Ages), one of the things my judge warned me about was when an attorney said something was "indisputable," telling me that what that often meant was that there was no evidence of it but we should just accept it as true anyway. He never would have let me say, in a draft opinion, that something was indisputable.] The WNTPA also points to statements from persons associated with the USSF as evidence of pay discrimination. For example, Carlos Cordeiro, while campaigning for the USSF presidency in 2017, said "Our women’s teams should be respected and valued as much as our men’s teams, but our female players have not been treated equally." He also said, "... we clearly need to work toward equal pay for the national team." In addition, the WNTPA offered evidence that the USSF outslde legal counsel had said during negotiations that "market realities are such that women do not deserve equal pay." Nevertheless, these statements are not sufficient to establish a genuine dispute that WNT players are paid at a rate less than the rate paid to the MNT. "That USSF agents said that the WNT players are paid less does not make it true" given that the USSF evidence is that the WNT was paid more on both a cumulative and average per-game basis than the MNT." Further, Cordeiro in his deposition said he was referring to the WNT historically having played fewer friendlies than the MNT; and the USSF disputed whether the USSF outside legal counsel actually made the "market realities" statement. [My Comment: This is an area of the decision that the writer of the article linked by Lloyd Heilbrunn pointed to as containing a reversible error. The writer pointed out that there is a dispute about what Cordeiro meant and a dispute about whether outside counsel made that statement. These are disputes about facts. Further, according to the writer, these are material facts -- meaning, if the USSF personnel themselves thought they were engaging in wage discrimination, that is material evidence of wage discrimination that a court cannot ignore in the summary judgment phase of the lawsuit.] In conclusion, the evidence offered by the WNTPA does not establish a genuine dispute that the WNT players are paid at a rate less than the rate at which the MNT players are paid. Therefore the USSF motion for summary judgment on the Equal Pay Act claim is granted. [My Comment: Next will come the claims under Title VII of the Civil Rights Act of 1964.]
Cassell was a big criminal law and crime-victim advocate as a Federal District Court judge in Utah. He resigned after only a few years to become a law professor, essentially because the Federal judgeship position didn't pay enough. Perhaps he finds the Plaintiffs' case as more compelling than labor and contract law would otherwise suggest, particularly with regard to intent. However, while intent is important in a criminal case, it's much less so in a civil case, where a simple preponderance of evidence prevails.
This could be true, but I think you have missed that the preponderance of the evidence standard applies only after a trial. In order to decide a case based on a motion for summary judgment, there must be no genuine evidence the other way rather than a preponderance of evidence in favor of the decision. These are two completely different standards. Cassell did not say the WNT players should win. He only said that he thought deciding the case on a motion for summary judgment was inappropriate due to there being some genuine evidence of discrimination.