Morgan v USSF, installment 15 (court discussion about the Title VII claim): The Title VII claim is for "disparate treatment," in other words poorer treatment. The WNTPA claimed poorer treatment by (1) being paid less and (2) by having poorer working conditions. The court already found, on the Equal Pay Act claim, that the WNTPA had not produced genuine material evidence that they were paid less than the MNT. The court granted summary judgment on that claim and therefore likewise grants summary judgment on this one. [My Comment: I do not know enough to know whether the requirements for a successful disparate pay claim under Title VII are the same as for an Equal Pay Act claim. The judge, through his decision, ruled that they are.] On the poorer working conditions claim, the first issue is what conditions the WNTPA identified in its filings in the case. The WNTPA says this claim covers playing on artificial turf rather than grass, flying on commercial airlines rather than charter flights, the amount of money spent on travel (including room and board in addition to charter flights), personnel resources and support, including medical and training support; and head coach compensation. The USSF says the only properly identified issues are the field surface and commercial versus charter flight issues. The conditions the WNTPA properly identified in its filings include all of the issues it says the claim covers, except for the head coach compensation claim. The head coach compensation claim does not fit within a fair interpretation of what the WNTPA described in its complaint, so it is not part of the case. Before properly filing a Title VII lawsuit, the filer must go through certain procedures with the Equal Employment Opportunity Commission. Although the USSF asserts that the WNTPA did not go through the required procedures as to all of the claimed poorer working conditions, the court does not agree. Therefore all of the poorer working condition claims (other than the head coach compensation one) are properly part of the case. Regarding the poorer working condition claims: Title VII says an employer cannot discriminate, because of an employee’s sex, as to "compensation, terms, conditions, or privileges of employment ...." The way the legal process works, the employee first has to show that she has received poorer treatment. If she shows this, then the employer must show that there could be a legitimate non-discriminatory reason for what it did. If the employer shows this, then the employee must show that the reason offered by the employer is not why the employer did what it did, but instead is simply a pretext for discriminating on the basis of sex. Looking at the specific poorer working condition claims: 1. Field Surfaces. The WNTPA claim is that the USSF made the WNT play on artificial surfaces more than the MNT: The USSF chose turf more frequently for the WNT than the MNT; and, if the selected locale had turf, the USSF chose to install temporary grass more frequently for the MNT than for the WNT. Playing on turf can lead to injuries; and it can affect the fundamentals of the game, including the way the ball bounces and how a player can strike the ball. At this stage of the proceeding, the USSF did not dispute any of this. The USSF position, however, is that it had legitimate non-discriminatory reasons for this. The evidence is that there were only two times when this occurred. After the 2015 World Cup, during the WNT Victory Tour, 7 or the 10 games were on artificial turf. And, between July 27 and October 19, 2017, the WNT played three friendlies on artificial turf. As for the Victory Tour, the USSF evidence was that it wanted to spread the WNT games across various cities and regions of the country, that this was a relatively large number of games to be played during a relatively short period during the Fall and Winter, and that the USSF wanted to hold off on using grass fields at that time so it could prioritize them for games leading up to the 2016 Olympics. These factors all lead to the 7 of 10 Victory Tour games being played on artificial turf. Further, the USSF evidence was that it did not think there would be enough revenue from the Victory Tour games to make it financially prudent to install temporary grass on the turf fields; and it did not believe it was necessary to have grass in order to attract opponents. In contrast, for MNT games where the USSF installed temporary grass, it expected revenues to justify the cost; and for three of the games, it believed the opposing teams would not be willing to play on turf. Although the WNTPA argued that some of the evidence showed that these USSF supposed reasons for the the WNT playing more on turf were not the real reasons, the court concluded that the evidence the WNTPA was referring to did not have anything to do with the USSF decisions on the field surface issue. In conclusion, the WNTPA did not provide any genuine evidence that the USSF explanations for the field surface differences were a pretext. Because of that, the court gave a summary judgment in favor of the USSF on the field surface issue. [My Comment: This raises questions somewhat similar to the FIFA World Cup prize money question. Suppose another nation’s team is a desired MNT and likewise a desired WNT opponent. And, suppose that nation’s federation will not allow its men’s team to play on turf, but will allow its women’s team to play on turf, due to treating the men differently than the women. Can the USSF host a game for the men on grass and for the women on turf, with the rationale being that this is ok because it is the other nation’s federation that is discriminating and the USSF is allowed to adapt to that discrimination in its field surface decision? A similar, but not identical, question comes up in relation to the USSF citation of expected game revenue as a justification for providing temporary grass for the MNT but not for the WNT. This presumably has to do with fan discrimination in favor of male athletes, as expressed in the numbers of fans the USSF expected to go to men’s games as compared to women’s. Can the USSF provide temporary grass for the MNT but not for the WNT, with the rationale that this is ok because it is fans that are discriminating and the USSF is allowed to adapt to that discrimination in its temporary grass decisions? That is a question the court implicitly answered "Yes," but not explicitly. While some might think that obviously is the right answer, I am not sure. If one considers Title IX, a school cannot justify favoring male athletes over female athletes by saying that there are more paying fans for male collegiate athletics. Should the reasoning be similar here?] [My Comment: In my next installment, I will cover the court decision as to charter flights and travel conditions and support services.]
The big problem with this case is that the contracts, the situation and markets of the teams are so disparate that everything becomes an argument.
I agree with your reasoning on turf. If there was one section I thought had more merit it was turf. Much more than the flights. Indeed, the flights can be much easier to explain since the MNT has a lot of qualifiers that the WNT doesn't have.
And a lot of players coming from their clubs in Europe. On the other hand, flights are clearly an apples/apples comparison. Turf on the other hand is more open to question when you compare hastily scheduled friendlies vs a schedule of WCQs. For me the fun one was one of the two USA/MEX games at Reliant (either 2005 or 2008, I forget which). USSF put in a temporary grass field over the natural grass field that was there at the time.
Well, they're only apples to apples if we're talking about who is coming from abroad, etc, since business/first class is only really widely available on trans-oceanic and South America-North America routes. You're going to struggle to find a huge number of first class seats on a given flight that isn't more than 4 hours domestically, and even then, first isn't really that big of a deal, and it is always a smaller portion of a cabin.
I am no attorney, but isn't Title IX addressing a situation at public funded institutions, where most programs lose money and are funded by the public at large through federal funding? This a situation not involving taxpayer monies, and that would seem to make it different. I mean the NFL has no onus to provide for a WNFL but the University of Alabama is under an legal obligation to provide an (equal/simliar?) number of opportunities to female athletes. That requirement is due to ensure equal opportunity to female athletes at publicly funded institutions. I do not believe with Title IX that profitability ever enters the equation due to the public funding aspect. Same reason TITLE IX does not apply tot he Yankees. Just curious, and thanks for doing this it has been very informative.
Morgan v USSF, installment 16 (continuing court discussion about the Title VII claim): The WNTPA Title VII claim included a claim that the USSF subjected the WNT to poorer travel conditions than the MNT. This included a claim that the WNT had fewer charter flights than the MNT and that the USSF spent more money on hotels and airfare for the MNT than the WNT. For example, from 2015 through 2020, USSF spent about $9 million on airfare for the MNT as compared to $5 million for the WNT even though the WNT had more games. The USSF is asking for summary judgment in its favor specifically on the charter flight disparity. The WNTPA evidence is that since October 2018, both teams had charter flights to all games. From 2015 through 2018, the WNT had charter flights for all World Cup, Olympic qualifying, and Olympics games, though not for the flight from the US to Brazil for the Olympics. USSF’s defense as to the flight to Brazil is that a charter flight would cost more, the team flew business class, and traveling business class did not cost the team any competitive advantage since international business class travel from the US to South America often is as comfortable as a charter plane, if not more so. Further, Jill Ellis did not request a charter flight; and the USSF would have considered it if she had. The MNT had charter flights for all non-friendlies during this period. In addition, during the June 2015 through September 2018 period, the WNT did not have charter flights for any friendlies. The MNT had charter flights for 6 friendlies. Two of the flights were to and from Cuba in October 2016 for two games four days apart in between World Cup qualifiers. USSF’s defense as to these flights is that there were limited commercial flights to and from Cuba at that time. The third charter flight was to a friendly in Utah five days before a World Cup qualifier in Colorado. As to this flight, the USSF’s defense is that the MNT was struggling in World Cup qualifying and the USSF men’s coach asked for a charter flight in order to give the MNT every competitive advantage during qualifying. The fourth charter flight was from Nashville to East Harford for a friendly a few days before the Gold Cup opener back in Nashville. For this flight, the USSF defense is that it had a charter flight to give the MNT every competitive advantage heading into the Gold Cup, with the USSF seeing the Gold Cup as a significant opportunity to win a meaningful tournament, which would give the MNT program momentum and its fans a boost. The fifth charter flight was from Ireland to a friendly in France. By this flight, the MNT had failed to qualify for the World Cup. The USSF defense is that this was a meaningful opportunity for the MNT to compete against one of the World Cup favorites; and a good result could give the players a boost, as compared to most friendlies, so the USSF wanted to give the men every competitive advantage. The sixth charter flight was from New York, after a friendly against Brazil, to Nashville for a four days later friendly against Mexico. The USSF defense is that Mexico is the MNT’s main rival so that even a friendly is an important measuring stick for the MNT program; and given that the USSF wanted to give the MNT every competitive advantage. The USSF explanations all are rooted in meeting a competitive need of the MNT. This is not a sex-discrimination based reason, so the WNTPA must show these explanations actually are a pretext for discrimination. On this question, the WNTPA has provided enough evidence to raise a genuine dispute as to whether the USSF explanations simply are a pretext. For one thing, the competitive advantage explanation does not explain the gross disparity on the amount the USSF spent for airfare and hotels for the MNT as compared to the WNT. In addition, it seems implausable that the WNT never had a need for every competitive advantage during this period. Given this, the court denies the USSF motion for summary judgment as to this claim. [My Comment: There is a certain irony in the USSF use of a competitive advantage justification for the MNT charter flights. It seems it was asserting that the WNT is so good it does not need every competitive advantage, but the MNT is poor enough that it does.] The last remaining issue is USSF’s request for summary judgment on the WNTPAs claim of receiving poorer support services and travel conditions (other than charter flights). The USSF did not ask for summary judgment on this in its initial summary judgment motion but rather asked for it only in its reply to the WNTPA’s arguments against the USSF summary judgment motion. For that reason, the court will not consider this issue at this time. In conclusion, the court denied the WNTPA summary judgment requests as to all issues, denied the USSF summary judgment motion as to charter flights and disparate support services and other travel conditions, and grants the USSF summary judgment motions as to equal pay. [My Comment: Thus end my installments detailing what the court said in its decision. I note that the court did not address the question about whether the work of the WNT and the MNT are equal, although this appears to be an issue the USSF raised in the case. And I noted during my installments that the judge did not address the fact that the USSF explicitly refused to give the WNTPA the opportunity to consider a contract identical to the MNT contract including the amounts of World Cup bonuses. I think these issues present thorny legal questions, and I would not be surprised if the judge wanted to do everything he could to avoid having to decide on them. I’ve noted other places where I think it is possible the court made errors. I am thinking there is a pretty good possiblity the decision will be reversed on appeal, although I am out of my legal element enough to not be confident either way of what will happen.]
Yes, you are absolutely right. The question I raised is whether the reasoning should be the same in terms of what is equal treatment. But there definitely is a legal question whether the equal treatment required under Title IX is the same as the equal pay required under the Equal Pay Act and the similar working conditions requirements under Title VII.
Didn't the USSF ask the judge to ignore their different work defense on account of the backlash? Regarding the contracts, it was evident from the facts stated that neither party ever requested using the identical MNT contract. The judge may have decided not to mention it one way or another. However, I agree that this confused a lot of people.
I don't think they threw the entire argument out, just the part where they went all in on defining women as inferior to men.
Getting the smaller stuff out of the way https://www.espn.com/soccer/united-...equality-lawsuit-equal-wages-still-unresolved
TBF, it was the only part.. The wages part was dismissed. The USWNT is obviously going to appeal that dismissal, but this resolves the lawsuit from the lower court's perspective and allows the USWNT to appeal the dismissal of the rest of their lawsuit.
US government getting involved. https://www.si.com/soccer/2021/03/09/uswnt-equal-pay-bill-introduced-congress
Mostly a publicity stunt but it could pass. But what would that mean? That the gov't could bring a case against USSF? But the USWNTPA just brought that case and it was found they were paid more then the men already, or at the least, chose different forms of compensation that was equitable. So, even if it passed, I don't think it changes anything.
That reads to me like it is one of "those" bills. That is it was introduced to gain political favor back home knowing that the bill has almost no chance of passage. In fact it will, probably, never even come to a vote. It may not even have a reading in committee. While I favor the USWNT being in all way equal to the USMNT I do NOT think the government should get involved. I believe I remember FIFA has rules against governments getting involved in soccer operations or dictating pay or anything else about the National teams. But I do not think this will amount to anything at all. the "government really has no interest in soccer.
Will this "amount" to new legislation? Almost surely not. But it's a way of publicly standing with the USWNT and putting more pressure on soccer authorities. I support what these legislators are doing.
You've presented so many valid points in this forum in the past, and now this... You're better than this.
One could have said the same of the last idiot. Go purchase yourself a sense of humor. I hear the price is reasonable.
We know the President has commented on it while he was campaigning, but what we don't know is if it is important enough for the President to spend any political capital on.. It's very, very easy for Biden to tweet out that he supports the USWNT, its a completely different thing than saying he is willing to back a bill and spend political capital to get it passed when, lets be honest here, he has much bigger agenda items to push through Congress.
Yes, and the one rule FIFA is prepared to figth to the death for, it is the ones that keep the power of Soccer in the hands of the FIFA potentates so higher even than money on their agenda. If it this becomes a rule for all sports FIFA is likely to accept it but if it becomes one just for Soccer I predict USWNT and USMNT will not be allowed to play FIFA sanctioned matches will it stands.