U.S. Soccer's Offensive Defense of the Women's National Team Equal Pay Lawsuit

The President of U.S. Soccer resigns last night--in no small part because of bad lawyering.

|The Volokh Conspiracy |

Want to see a classic example of bad lawyering with a terrible argument?  Consider the U.S. Soccer Federation's defense of the lawsuit filed by Alex Morgan and other members of the U.S. Women's National Team (USWNT) alleging sex discrimination in violation of the Equal Pay Act (EPA) and Title VII.  In the last few days, U.S. Soccer's attorneys generated a firestorm of controversy in responding to the players' summary judgment motion.  On Monday night, U.S. Soccer filed a brief arguing that a USWNT player's job does not require equal "skill" and "responsibility" to that of a member of the U.S. Men's National Team (USMNT).   On Wednesday night, the President of U.S. Soccer, Carlos Cordeiro, apologized for the filing–and last night he resigned. His resignation resulted, in significant part, from his lawyers making a terrible argument directly contrary to their client's long term goals.

The underlying lawsuit was filed in March 2019 by the 28 all members of the USWNT (the current world champions).  The complaint compared the USWNT and the USMNT and argued that "[d]espite the fact that these female and male players are called upon to perform the same job responsibilities on their teams and participate in international competitions for their single common employer, [U.S. Soccer], the female players have been consistently paid less money than their male counterparts."

The case has proceeded through discovery for the last year, with the case set for trial in early May.  The recent filings that have generated controversy are cross-motions for summary judgment by the USWNT and U.S. Soccer.   The USWNT has argued that there is no genuine factual dispute that the USWNT and USMNT players perform "equal work," which under the EPA's implementing regulations is defined as work that requires "equal skill, effort and responsibility."

In response to this argument, many options were available to U.S. Soccer's attorneys (from the law firm of Seyfarth Shaw).  For example, they could have simply stipulated to this point about equal "skill"–which is not dispositive in the case.  Indeed, the case's central issue concerns whether the USWNT bargained for alternative pay arrangements from the men's team.  But instead of setting to the side the issue of the comparative skills involved in men's and women's soccer, U.S. Soccer's attorneys rashly choose to argue for the men's absolute superiority.  Here is the passage from the response brief that has generated controversy by suggesting that the U.S. women have less "skill" (some legal citations omitted and emphasis rearranged):

Plaintiffs ask the Court to conclude that the ability required of an WNT player is equal to the ability required of an MNT player, as a relative matter, by ignoring the materially higher level of speed and strength required to perform the job of an MNT player. The EPA does not allow this. Nor is it a "sexist stereotype" to recognize the different levels of speed and strength required for the two jobs, as Plaintiffs' counsel contend. On the contrary, it is indisputable "science," as even Plaintiff Lloyd described it in her testimony. See also Doriane Lambert Coleman, Sex in Sport, 80 LAW AND CONTEMPORARY PROBLEMS 63-126 (2017) (available at: https://scholarship.law.duke.edu/lcp/vol80/iss4/5) (describing the scientific basis for "the average 10-12% performance gap between elite male and elite female athletes," which includes differences between males and females in "skeletal structure, muscle composition, heart and lung capacity including VO2 max, red blood cell count, body fat, and the absolute ability to process carbohydrates," …).…

The point is that the job of MNT player (competing against senior men's national teams) requires a higher level of skill based on speed and strength than does the job of WNT player (competing against senior women's national teams). …

Alert VC readers will recall that Professor Coleman (cited above) has previously blogged here on the topic of scientifically based strength differentials between men's and women's athletes.  But whatever the merits of this point, in using this differential as a basis for unequal pay, U.S. Soccer's lawyers appear to have forgotten that one of U.S. Soccer's missions is to promote gender equality in soccer.  Thus, regardless of the argument's legal merits, it directly contradicts U.S. Soccer's values.

This view about the argument's incongruity is not just mine.  In a statement released Wednesday night (as the USWNT was winning its most recent competition by defeating Japan 3-1), U.S. Soccer President Carlos Cordeiro formally apologized for U.S. Soccer's brief.  He said that he "sincerely apologized for the offense and pain caused by language in this week's court filing, which did not reflect the values of our Federation or our tremendous admiration of our Women's National Team. Our WNT players are incredibly talented and work tirelessly, as they have demonstrated time and again from their Olympic Gold medals to their World Cup titles."

In light of that apology, commentators called for Cordeiro to resign. For example, Grant Wahl (one of America's foremost soccer observers) wrote in Sports Illustrated on Thursday morning that Cordeiro "who presided over a disgraceful legal strategy citing 'science' to belittle the world champion U.S. women's national team based on its gender, should resign immediately."  Former members of the USWNT criticized the sexist language.  And making the criticism near universal, the USMNT player's association joined in the attack.

To his credit, Cordeiro realized his responsibility for the filing and, last night, he resigned.  In his letter of resignation, Cordeiro explained that he failed to fully review the brief quoted above and the he took responsibility for failing to do so. Cordeiro stated that, "[h]ad I done so, I would have objected to the language that did not reflect my personal admiration for our women's players or our values as an organization."

The lack-of-equal-skill argument strikes me as one of the worst ever advanced by skilled lawyers in complex litigation.  In a scorched earth defense, they raised every conceivable argument that could have led to a favorable verdict–even an argument that flatly contradicted U.S. Soccer's goals.  Against a backdrop of well-documented second-class treatment of the women's team, arguing that the team (the defending world champions) somehow possessed a lower level of "skill" was worse than tone deaf.  Not only has it led to the resignation of the head of U.S. Soccer, but it will now lead to complicated questions of how to unwind the damage.

U.S. Soccer has plausible arguments to explain any pay differential (a fact that itself is in dispute).  For example, the strongest argument for U.S. Soccer is that the women players bargained for an alternative pay structure.  Given the fact that women's professional soccer leagues do not pay nearly as much as do men's leagues, the women have sought guaranteed annual salaries.  But whatever the strength of U.S. Soccer's argument on that point (I take no position on that here), U.S. Soccer's attorneys have now created an issue of fact about whether the purported lack of "skill" was the true basis for the alternative arrangements.  Given that U.S. Soccer has been forced to admit that this position was sexist and inconsistent with its values, the finder-of-fact in the case will presumably have to weigh that point in deciding the case.

As of this writing, U.S. Soccer has yet to withdraw the offensive language from its brief.  Perhaps a short submission to that effect will come soon from U.S. Soccer's new legal team (Latham & Watkins).  Until the language is formally withdrawn, it is hard to disagree with the USWNT that the apologies thus far have been nothing but cheap talk.

No doubt, even with a withdrawal, lawyers for USWNT will not let the matter disappear so quickly.  In view of the factual disputes, look for U.S. Soccer's summary judgment motion to be denied and for the case to head in the direction of a trial.

Advertisement

NEXT: Chelsea Manning Freed Again, but Her Refusal to Testify Comes With a $256,000 Price Tag

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The proper argument is that is what the market pays. Don’t like it? Do something else. If the audience pays more to watch men play soccer than women, that’s life.

    1. I don’t watch soccer, but I watch more women’s tennis than men’s tennis — though perhaps for bad reasons.

      1. You’re not alone. There is a reason women’s beach volleyball has higher ratings than women’s water polo. Women’s beach volleyball recognizes this reality, and set their uniforms to play into it.

      2. Tennis is unusual because the higher skill of men means that points generally end more quickly because balls are just smashed

        1. So the women’s game can have more drawn out points, which can be more fun to watch.

    2. The proper argument is what the law says. Remember law? Ostensibly the topic of this website.

      1. The law is up for debate; the market isn’t. To the extent the law is trying to override market forces, it should stop.

        1. Perhaps, but the judges who have to decide this case are kinda stuck with the law as it currently exists.

    3. Maybe I’m mistaken, but I was under the impression the audience pays more to watch the US women’s team than the men’s team. FWIW that certainly reflects my own preferences.

      1. It does not. They do better ratings in the World Cup because they win, but most of the other 1400 days of the cycle, they don’t draw anything

  2. “The lack-of-equal-skill argument strikes me as one of the worst ever advanced by skilled lawyers in complex litigation.”

    Are we sure the lawyers weren’t secretly trying to tank the case? That almost seems more plausible than believing that everyone thought this was a good idea, and I’m not terribly sympathetic to the USWNT’s claims.

    1. Considering that “profitability” is a much better argument, much easier to prove, and wouldn’t get half the planet furious at you, I almost have to agree.

      If it wasn’t an attempt to deliberately throw the case, then I find it definitely in support of the player’s accusation of sexism.

      1. Profitability is a heck of a lot closer to equal than skill is

  3. Bad lawyering maybe, but good grasp of reality. The same level of skill cannot be expected between the men’s and women’s team. The US women’s soccer team was beaten 5-2 by an under 15 boys amateur team, for example. This is routine in the high levels of sports when both men and women participate.

    They should have based their argument on the fact that there is a smaller market for women’s soccer.

    1. “The US women’s soccer team was beaten 5-2 by an under 15 boys amateur team”

      In a scrimmage, not a real game. But from the pictures I’ve seen, the U15 boys were bigger than the women so they very well might have won a real game as well.

      “They should have based their argument on the fact that there is a smaller market for women’s soccer.”

      It’s not particularly evident that that’s the case when the discussion is limited to the USWNT and USMNT, as it is in this case. The World Cup payouts are rightly different, but those don’t come from the USSF.

      1. The *reason* that the women were playing against a high-school boys teams is because it is an approximately equal match, in terms of physical capability.
        It wasn’t a one-off thing, nor is it unique to the US team – Japan and Australia have both hit the news for the same thing (losing to highschool boys).

        However, I would disagree that the boys are equally skilled. The women practice more and have more experience, so despite the boys being as-good-or-better physically, the women almost always ‘win’. That’s why it makes the news when the opposite happens.

        1. The argument isn’t that they are equally skilled at soccer. Skills here refers to job skills, skills required for the specific job. It’s an odd situation from the start, since the USWNT and the USMNT don’t have the same jobs at all. One plays against men, and one plays against women. So in terms of “skills” you’d ask whether 1) is it true that USWNT and USMNT have the same job and 2) would the skills employed by the USWNT allow them to perform the same work as the USMNT.

          1. But the other side is arguing they do have the same job and in that context this is a powerful argument against that claim.

        2. I don’t dispute the women’s case, but I can’t become enthusiastic about their ability from learning that the world champions “almost always” beat high-school boys. It isn’t like in gymnastics, where Simone Biles truly is the best athlete in the world.

          I sometimes drop in (on TV) on a WNBA game and am soon bored by the plodding, below-the-net quality of the play. And they too argue that they suffer wage discrimination. The argument for letting the crowd and paying public decide salaries is the best one.

          1. “It isn’t like in gymnastics, where Simone Biles truly is the best athlete in the world.”

            I’m very skeptical that Simone Biles would beat men if she competed against them, regardless of whether the competition was men’s gymnastics or women’s gymnastics.

          2. There was an amusing video a year or two back with a couple of female olympic gymnasts watching males do female routines and being boggled by how well they did them.

            Biles would be destroyed if top-level male gymnasts were practicing the same routines she did

    2. I’m not sure that’s relevant to an employment discrimination claim, though.

      For instance, years ago (and long before Wimbledon did it), US tennis tournaments switched to equal prize money, and they did it in part on the advice of their lawyers. Obviously Roger Federer would beat Serena Williams 6-0 6-0. But that’s not the point. The point is that they are doing effectively equal work.

      In general, the best argument for pay disparity is in sports where the men generate more revenue than the women. If the WNBA and the NBA were a single enterprise, they could almost certainly pay the female players less. But where a women’s sport makes just as much revenue as a men’s sport, the fact that the women don’t play the sport at the same level as the men is irrelevant.

      Here, as Prof. Cassell says, the one decent argument for US Soccer is that they are giving the women guaranteed compensation because women’s club soccer is unpopular whereas men’s club soccer makes tons of money which is distributed to the players. But the fact that the men would beat the women 15-0 is just not relevant here.

      1. “The point is that they are doing effectively equal work.”

        Ironically, tennis is the one sport where they really aren’t.

        1. “The point is that they are doing effectively equal work.”

          They may be working equally hard, but very unlikely the producing the same.

          1. “They may be working equally hard, but very unlikely the producing the same.”

            Ironically, at the tennis majors women may be producing the same even though they are not working as hard.

          2. Working equally hard? I don’t hear the women demanding to play 7 sets instead of the 5 that they do.
            Equal pay for 72 percent of the work. The irony is thick.

            1. Women play best two-out-of-three. Men play best three-out-of-five.

          3. This is a physics-based argument. Check the serve speeds. The women are literally not doing equal work. Work = force * distance.

            1. You sir, win the internet for today.

            2. “This is a physics-based argument. Check the serve speeds. The women are literally not doing equal work. Work = force * distance.”

              That is a fact that those arguing for equal pay for unequal production / unequal work cant seem to grasp.

              1. I assumed Phanatic was making a joke, but you seem serious. Are you suggesting that John Isner deserves more money than Roger Federer because he hits the ball harder?

                1. Doesn’t this answer the question? I assume the point of the argument is that Roger Federer (4) deserves more money than John Isner (21) because Federer is better. But if that’s the case, that’s precisely why men tennis players should get more than women, right? Because they’re better at tennis?

                  1. My point was that Work = force * distance has nothing to do with who is better at tennis.

                    1. I think nothing is too strong of a claim. Power helps.

                  2. “that’s precisely why men tennis players should get more than women, right? Because they’re better at tennis?”

                    But no. Men should get more money than women if they generate more revenue than the women, which they virtually always do at stand alone tournaments.

                    1. Sure, I think the big issue is people assume that because sports are all about competition, that if X would beat Y, X is more virtuous. Your very good point is that compensation is not (necessarily) directly correlated with betterness.

                      A good example is college football. I assume there are college football programs that generate more revenue than professional football programs. And all of the arguments about the superiority of men’s soccer over women’s soccer apply with equal force to NFL over NCAA football. Some people (including me) could conceivably enjoy watching lower skill levels more. It’s a different game.

                      Because we’re talking about different games, in my view that takes us out of the entire same pay for same work argument. But I’m willing to be persuaded, based on the sources of revenue, that in fact the USWNT is being underpaid relative to the USMNT for the same work. It’s uphill but I’ll keep an open mind.

                    2. “Because we’re talking about different games, in my view that takes us out of the entire same pay for same work argument. But I’m willing to be persuaded, based on the sources of revenue, that in fact the USWNT is being underpaid relative to the USMNT for the same work. It’s uphill but I’ll keep an open mind.”

                      I generally agree that men’s and women’s sports are different sports (though not because they require different skill (except things like gymnastics which have different events but aren’t really sports anyways), effort, and certainly not responsibility), so inequality in payment isn’t a big deal. It’s a little weird in that it’s about the only situation in US professional sports where the same organization is paying for men’s and women’s teams. And about the only situation where there’s an argument that the teams generate the same amount of revenue.

                      But my bigger issue with the USWNT’s claim is that the salary structure is so different that any attempt at a comparison is essentially meaningless, regardless of the revenue share. Alex Morgan is still collecting her salary while on maternity leave, and her insurance is through the USSF. Neither of those would be true if she were on the men’s team instead.

            3. Fairly confident he was referring to the fact that women play fewer sets in the Slams than men do, but appreciate this post.

    3. It’s relevant. The fellow resigned for the “pain” caused by stating the obvious, men and women in professional sports do not have commensurate skill levels. The biology behind this is, indeed, settled science, so to cite is was, while bad optics and thus bad lawyering, it is still an apt description of reality. It’s telling that there is a rejection of science over the matter by the part of the women’s team.

      People pay to watch the best skilled as X activity more than they would someone less skilled. Indeed, skilled players in professional sports make more. Watching women’s soccer is like watching men’s soccer at .75 playback speed. In other words, it’s even more boring, which contributes to the fact that so few people watch it.

      1. Leaving aside your ignorance of soccer, that is not the reason Cordeiro resigned. He resigned because he was ultimately responsible for the legal filing, and that filing directly contradicted one of the stated aims of the US Soccer Federation, which is to promote gender equality in the sport. You may disagree with that aim, but USSF is the organization that hired Cordeiro, and paid his salary.

        1. I agree with the aim to promote gender equality in sports. That really doesn’t have anything to do with this lawsuit, though. If it’s not disputed that men and women aren’t equal at soccer, you can’t promote equality in sports by equalizing their pay, can you? And by “equal at soccer” I can mean equally skilled, equally strong, equally lucrative, whatever. It doesn’t make any difference.

          1. I wasn’t defending the UWWNT lawsuit or the merits of equal pay for the two teams. I was just pointing out that Cordeiro did not resign for the reason posited by kalak.

            The measure of whether the women players are doing the same job as the men really have nothing at all to do with the relative skill levels of the genders. This whole discussion is beside the point.

        2. Go on, tell us what, specifically shows his “ignorance of soccer”

      2. Soccer is boring. And watching women’s soccer is even more boring. That’s why so few people watch it (which is relevant to the discussion as this is all about money, like most things are, even we pretend highhandedly it’s not). Sorry if that offends, and if that’s why you say I’m ignorant (you’re not clear why) it actually shows you’re ignorant. It’s a objectively true fact that less people watch or care about women’s soccer…mostly because women run slower and have less skill. They are certainly easier on the eyes though, which is why women’s volleyball gets more views. Sexist? Sure. True? Definitely.

        And if you took the time to note, I already admitted that it was bad lawyering due to bad optics.

        That said, the guy was in a real catch-22. The goal of the US soccer federation is impossible to achieve. Women’s soccer will never be as skilled as men’s soccer, ever, and by extension will never have gender equality because that skill difference means less people will watch it, thus there will never by the same amoutn of $$ for women’s soccer. But, the guy had to pretend it was possible to get gender equality in soccer (whatever that means) while simultaneously knowing that the reason that it was impossible is also why there is less money to be had for women’s soccer.

        1. “Soccer is boring. And watching women’s soccer is even more boring. That’s why so few people watch it (which is relevant to the discussion as this is all about money, like most things are, even we pretend highhandedly it’s not).”

          20 million people in the US watched the last Women’s World Cup final, which is a lot of people. And Men’s soccer is without a doubt the most popular sport worldwide, so plenty of people disagree with your assessment.

          “It’s a objectively true fact that less people watch or care about women’s soccer…mostly because women run slower and have less skill.”

          It is not an objectively true fact that fewer people care about the USWNT than the USMNT. That’s one of the points in dispute in this case. The USWNT claims that it generates more revenue than the USMNT. I’m skeptical of their accounting, but it’s a fact in dispute.

          1. Soccer is boring. Most Americans feel that way. MLS viewership is puny compared to even the 2nd most boring sport, MLB. So most Americans agree with my assessment. What’s your point?

            20 million? Actually it was 14 by my internet search. Whatever. 29 million US viewers watched two FOREIGN teams in 2018! The NBA finals have more views than women’s soccer, and the World Series has 2-3x the women’s team in the World Cup. So many watched the women because they were patriotically rooting for the Women’s team. Good for them. I even watched some of it, which confirmed my opinion that it was slow and boring. Moreover, the viewership for a random game is minuscule compared to a typical NFL game.

            1. “20 million? Actually it was 14 by my internet search.”

              You didn’t include online viewers.

              “Whatever. 29 million US viewers watched two FOREIGN teams in 2018!”

              What a great argument that Americans don’t care about soccer.

              “the World Series has 2-3x the women’s team in the World Cup.”

              The world series averaged 14 million people per game, which is certainly not 2-3 times the number of people who watched the women’s world cup final.

              “Moreover, the viewership for a random game is minuscule compared to a typical NFL game.”

              Sure. Now you can explain what any of this has to do with this lawsuit.

              1. That’s a good question, what does viewership totals have to do with the lawsuit when you talked about it first though? Let me help you out; it was part the narrative in the public relations game and in their lawsuit. Lawsuits happen as much in media as in the courtroom, surely you know that.

                Fundamentally, this is about money. Not gender equality or whatever tripe is being pushed for the cameras. What generates money? Viewership. For example, even the “meh” men’s team in 2015 had only slightly less revenue than the women’s team and that year the women won that year. Over a billion people watched the men’s final, nothing is comparable on the women’s side. Total prize money for all teams involved in the 2018 men’s tournament amounted to $400 million, while the total women’s prize money for 2019 is just $30 million.

                Let’s put it this way, the women deserve a raise, sure. Their consistent victories have brought in the dollars. But it is not sexist that they aren’t paid as much as the men when 1) they negotiated that contract themselves and 2) women’s soccer overall is but a fraction of the men’s game 3) women’s soccer is not a comparable product because it is boring and slow because biologically women are not as fast and strong and quick as men

                1. “Fundamentally, this is about money.”

                  That’s what I’ve been saying. You are the one trying to pretend it’s about skill.

                  “But it is not sexist that they aren’t paid as much as the men when 1) they negotiated that contract themselves and 2) women’s soccer overall is but a fraction of the men’s game 3) women’s soccer is not a comparable product because it is boring and slow because biologically women are not as fast and strong and quick as men”

                  What do 2 and 3 have to do with this lawsuit? Neither the overall status of women’s soccer nor your opinion of women’s soccer have any significant effect on the dollars at issue in this lawsuit.

                  1. Skill brings in money. Again, make Mike Jordan an average player, he brings in nothing compared to how much he brought in.

                    Women’s soccer skills are not as good, thus they don’t bring in as much money. This is why the women’s team had to win multiple world cups to even equal what average men’s team brings in. This is simple logic, and if you can’t understand how things like this work in a free market, then I cannot help you. I hope you have a good weekend.

                    1. “Skill brings in money. Again, make Mike Jordan an average player, he brings in nothing compared to how much he brought in.”

                      Entertainment brings in money. Make Mike Jordan 5′-6″ and he probably never makes the NBA. Height isn’t a skill. And the reason the NFL is more popular than the NBA or MLS isn’t because their players are more skilled.

                      “Women’s soccer skills are not as good, thus they don’t bring in as much money.”

                      Why do you keep pretending this is some kind of referendum on women’s sports instead of a particular case involving actual teams? Again, neither the overall status of women’s soccer nor your opinion of women’s soccer have any significant effect on the dollars at issue in this lawsuit.

                    2. Why do you keep pretending this is some kind of referendum on women’s sports instead of a particular case involving actual teams?

                      It’s just as true about the specific teams as it is about the sports in general. The US women’s team has the quality of a maybe below-average all-star group of high school freshman boys

            2. So many watched the women because they were patriotically rooting for the Women’s team.

              OK. Why does it matter what the reason why people watched was? Indeed, if the women’s team is successful at the world championship level, while the men’s team isn’t, and drraws more viewers because of that, then that supports their case, doesn’t it?

              By the way, I do wonder about the financial arrangements. Where does US Soccer get its money? ISTM that we can’t discuss revenue levels and so on without knowing that as a starting point.

              1. “By the way, I do wonder about the financial arrangements. Where does US Soccer get its money? ISTM that we can’t discuss revenue levels and so on without knowing that as a starting point.”

                They’re just a nonprofit, not a government agency, so their funding comes from sponsorships, donations, game revenues, contributions from FIFA, etc.

              2. They contract to play games and have sponsorships. Of course, games outside of the World Cup aren’t paying them anything significant, while the men’s team can play in games that earn money outside of the tournament

      3. mad kalak : People pay to watch the best skilled as X activity more than they would someone less skilled. Indeed, skilled players in professional sports make more. Watching women’s soccer is like watching men’s soccer at .75 playback speed.

        Alpheius : Leaving aside your ignorance of soccer

        Not quite sure what ignorance of soccer (or football as it is known everywhere else in the world) is being displayed here. Speed is pretty fundamental to the entertainment value of soccer.

        The English Premier League is way more popular with viewers outside its home country, than are the Spanish, Italian or German leagues, precisely because English football is typically played at 100 mph, with power and speed to the fore, ahead of technical skill.

        Spanish, Italian, German, Dutch, Portuguese etc teams are usually more skilful than English teams, and in European competitions frequently beat the English teams. The “Big Four” of Spain, England, Italy and Germany have won the European club championship roughly an equal number of times, but in terms of eyeballs, the English teams are way ahead. Not because of skill.

        Women’s soccer is very slow.

        1. I don’t agree with any of your characterizations of the European football leagues. I don’t know how many La Liga games you have watched, but they are played with as much speed as premiership games, in my opinion. Especially this year, with the premiership having a bit of an off year.

          I don’t find women’s soccer is very slow at elite levels, like international competitions. And I’m not sure speed is the be all and end all of popularity that you make it out to be. There are many popular sports in this country and abroad that are much slower than women’s soccer. Baseball and cricket come to mind. And even football as we play it is mostly standing around.

          My comment about ignorance was because of the statement that women’s soccer is like men’s soccer at .75. Women’s and men’s games are very different. The strategies used, the formations and plays are very different, even the psychology. Saying it is the same game but slower is ignorant, in my humble opinion.

          1. “I don’t find women’s soccer is very slow at elite levels”

            This is trivially, measurably demonstrated to be false. To a degree that suggests you don’t actually watch soccer

            1. And because I did bother to look it up, it’s a bit over 10% more miles run per match. Doubt there are studies on how much faster the men kick the ball.

  4. Talk about White Knighting. No Cassell, they’re not going to date you. (Is that how this goes?)

    In all seriousness, while it is certainly true that the men’s team possesses significantly higher physical ability than the women’s team (as a matter of biological reality — didn’t the men’s (boys’, really) Under 15 team best the women’s national team?), I’m not sure that translates to skill (in fact, I doubt it does). And even if it did, as others have noted, there are stronger defenses to advance. I’m sure the now-fired lawyers at SS regret this. They forgot that a lawyer must represent his or her client’s interests, which is not always synonymous with making every single argument one can think of. A client’s interests may be better served by not making a particular argument, because the PR downside is worse than any potential legal gain from that particular legal argument.

    And especially when the client is involved in well-publicized litigation in a controversial matter, it’s imperative that the client be involved in reviewing and okaying the filings, especially to look out for any PR icebergs. One would think the well-paid lawyers at SS know this, which is why I’m skeptical that the client didn’t give the green light on this argument and now has regret. If that’s not the case, there is at least one partner and associate at SS having a very bad week, and who may want to polish that LinkedIn bio.

    1. “I’m not sure that translates to skill (in fact, I doubt it does)”

      That is a good observation – I played volleyball at a low end collegiate level in the late 1970’s. Most women at that time had better ball control with passing, but not near the explosive power with hitting and blocking which is where the game was at. During the 70’s and 80’s , both the US womens time and US mens team had more freedom to play in non team events and a couple of the womens team members would compete is the same coed events that I played in ( a couple of mixed triple events). While there was a gap in skill level between my level of play and theirs, the gap was rather small. They were definitely weaker players than most of the players on my mens college team. That is not to disparage their skill level. Rita Crockett for example had 40′ vertical. ( as a point of reference, I am only 5’8 and barely made my collegiate team)

      1. Skill and effectiveness may not be the same thing, but if so that makes it all the more peculiar that the EPA (apparently) defies equal work in terms of “equal skill, effort and responsibiity.”

        Take a job which requires a mixture of skill and power – say heaving sacks of potatoes onto a truck. A woman may have lots of skill, put in lots of effort and do the job responsibility but she’s still likely to heave fewer sacks than a man. By a lot.

        The same obviously goes for soccer, or indeed most sports (except equestrian and shooting – where power is not really a factor.)

        Ballet, of course, is an activity in which a female dancer might easily get paid more tha a male dancer, but the two are not doing the same job.

    2. “If that’s not the case, there is at least one partner and associate at SS having a very bad week”

      By my count they have eight attorneys listed on the title pages. Too many cooks?

  5. Why is the obvious and logical resolution never brought forward?
    Since men are men, and men are women, and women are women, and women are men, just have “soccer”.
    No ‘mens’ teams, no ‘womens’ teams, just teams. Everybody tries out for the team they want to play on, and the best get hired.
    Easy and totally fair to all concerned.

    1. This touches on the puzzle of what can be meant by the concept of “promoting gender equality” in soccer. Since, as you say, the straightforward route would be to have open competitions for open teams, disregarding sex (or gender or whatever) it’s plain that “promoting gender equality” carries a rather special and rarified meaning. Something like –

      “promoting gender equality, while continuing to have teams selected on the basis of gender to play in competitions segregated by gender”

      is a bit of a conceptual mouthful and if the lawyers in this case were struggling with it, one can see why.

      1. I agree, I’ve never really understood what the USSF means by “promoting gender equality.” I’m not sure they really know. But apparently it doesn’t include endorsing court filings that make the argument that women’s soccer is inferior to men’s soccer.

  6. At least in this case the lawyers also seem to be paying a price. It looks like they were fired.

    Usually the lawyers are the only ones getting paid. In deposition as a fact witness I usually make the point I’m the only one in the room not getting paid.

    In a case I was serving as an expert one of the smart ass lawyers made a comment about me saying what I was paid to say and I told him he got paid a lot more than me to do the same thing. The guy was an ass.

  7. “On Monday night, U.S. Soccer filed a brief arguing that a USWNT player’s job does not require equal “skill” and “responsibility” to that of a member of the U.S. Men’s National Team (USMNT)”

    That is a fairly accurate statement.

    Apr 4, 2017 – In preparation for two upcoming friendlies against Russia, the U.S. women’s national team played the FC Dallas U-15 boys academy team and lost.

    Another example of the competitive differences – In the Mid 70’s, the Womens national Volleyball team played a scrimmage match against an mens team from the North Texas area which included two modifications to make the game competitive, A) the maximum height for the men was 5’10’ and B) no men’s in front of the 10′ line.

    1. What does that have to do with “skill” or, especially, “responsibility”? There is no doubt that men have more athletic ability than women. But that’s not skill, and that’s certainly not responsibility.

      Also, I’m not sure going back to the mid-70s is a great example. I’m not sure whether that was before or after Title 9, but I’m pretty sure that women’s athletics has come a long way since then.

      1. title 9 is not relevant to point being made.

        The point is that the performance, the production of the product is significantly different.

        In the manufacturing context – A man producing at 100% capacity producing 100 widgets vs a women working at 100% capacity producing 50 widgets should be paid the same because Why?

        Getting equal pay for unequal work.

        1. “title 9 is not relevant to point being made.”

          Sure it is. Looking at women’s athletic performance before Title 9 kicked in is of limited usefulness. The pool that women’s athletics were drawing from was much smaller than it is now, and performances will almost always increase when drawing from a larger pool.

          “In the manufacturing context – A man producing at 100% capacity producing 100 widgets vs a women working at 100% capacity producing 50 widgets should be paid the same because Why?”

          Because they were hired at the same hourly rate?

          What are you comparing the widgets to in this case? I think the women actually tend to play more games than the men, but it’s not a huge difference.

          1. “title 9 is not relevant to point being made.”

            “Sure it is. Looking at women’s athletic performance before Title 9 kicked in is of limited usefulness. The pool that women’s athletics were drawing from was much smaller than it is now, and performances will almost always increase when drawing from a larger pool.”

            you still not grasping the basic concept –

            lets try another comparison

            The best women players couldnt make the mens team, The best women player would have 300-400 men better than the best women. In other words, those 300-400 men produce more than the top 5 women players.

            Compare the MLB players vs AA or A,
            Serena Williams is the top womens tennis player, but would be ranked somewhere around 150-200 if she played on the mens circuit.

          2. “you still not grasping the basic concept –”

            No, I am. That’s why I addressed the basic concept first, then cautioned about reaching back to the 70s for examples of female athletes.

            “The best women players couldnt make the mens team, The best women player would have 300-400 men better than the best women.”

            Allow me to quote myself. “What does that have to do with “skill” or, especially, “responsibility”? There is no doubt that men have more athletic ability than women. But that’s not skill, and that’s certainly not responsibility.”

            “In other words, those 300-400 men produce more than the top 5 women players.”

            Produce what, exactly? What are the widgets in this case? Why would they be dependent on skill, athletic ability, or responsibility rather than revenue?

            1. The skill produces eyeballs watching, the more skill, the more eyeballs. The more eyeballs, the more ad revenue.

              1. So when you said

                “You’re not alone. There is a reason women’s beach volleyball has higher ratings than women’s water polo. Women’s beach volleyball recognizes this reality, and set their uniforms to play into it.”

                what you were saying is that women’s beach volleyball players are more skillful than women’s water polo players? I’m skeptical myself.

                If you want to argue ad revenues, argue ad revenues. Pretending that “skill” or “responsibility” is a proxy for revenues is just silly.

                1. Can you compare skill level in two different sports the same way?
                  Your unhelpful comment is only relevant to this discussion, if this was a debate about the pay of men’s and women’s volleyball team or water polo teams.

                  Please, there are multi-causal explanations for diverse phenomena. The world is a complex place. Danica Patrick got more lots of fans as a female race car driver, more than an average male driver, though she had less skill, due to her novelty. But she could never match Dale E., especially when she hardly won anything.

                  I say that more people watch women’s volleyball than soccer and that it has nothing do to with skill level, it’s due to the nature of the sport, their dress, and the athletes involved. If the women’s soccer team scrimmaged naked and had a lesbian orgy after each game, it would likely get TONS more views than it does now.

                  People pay more to watch more skilled players in each sport. The Browns get less eyeballs than the Patriots, and even within teams more skilled players get paid more because they attract more eyeballs. I bet even within the women’s soccer team that Rip woman gets paid more than her peers for this very reason.

                  Women’s soccer is less skilled than men’s and without eyeballs drawn to it via skimpy outfits, it will have less eyeballs than the men’s team. I suppose patriotism is the only reason it gets any views other then a few die-hards, because US people are glad an American team is winning at all. I, for one, am glad the American women win, because I am a patriotic American even if women’s soccer is to boring to watch.

                  1. If you want to argue revenues, argue revenues. Pretending that “skill” or “responsibility” is a proxy for revenues is just silly.

                    The Knicks are the most valuable team in the NBA. It’s certainly not because they are the most skilled. When the Clippers had a better team than the Lakers, the Lakers still had more viewers and made more money than the Clippers. The Chargers went 12-4 in 2018 and the only reason they ever came close to filling out a soccer stadium is because of the number of fans of the other teams that showed up to watch.

                    “I say that more people watch women’s volleyball than soccer and that it has nothing do to with skill level, it’s due to the nature of the sport, their dress, and the athletes involved.”

                    I say this is a sign that you are very out of touch with viewing habits.

                    1. You’re pettifogging.

                      People watch more skilled players, in all sports, because the product is more interesting. Make Mike Jordan an average player and the 90s bulls were “meh”. His skill drove revenue, in eyeballs watching the game and in merch.

                      Women’s sports are full of less skillful players compared to men’s teams in the same sport. The product, the game, is not as fun and dynamic. There is like no dunking in a WNBA game, for example. Dunking is exciting. Dunking is fun. Unless the women’s team brings something else to the table, like some T&A or the novelty of a woman athlete competing with the men, the lower level of skill translates to less revenue.

                      It’s absolutely silly how some, like yourself, refuse to acknowledge this. The women can be brave and strong and independent and awesome and the best women players in the world…but they are at the professional level not as skilled as men and therefore produce an inferior product.

                    2. “You’re pettifogging.”

                      No, I’m discussing things actually relevant to case under discussion. You think you can establish some general proposition then just apply it directly to this case. You can’t.

                      “People watch more skilled players, in all sports, because the product is more interesting. Make Mike Jordan an average player and the 90s bulls were “meh”. His skill drove revenue, in eyeballs watching the game and in merch.”

                      People watch more entertaining players and sports, which is a different thing than skilled. That’s why the Lakers still outdrew the Clippers even when the Clippers had more skillful players.

                      Revenue is objective. Skill is subjective. Why ignore an objective measure to argue about a subjective measure with no clear correlation?

                      “It’s absolutely silly how some, like yourself, refuse to acknowledge this.”

                      I haven’t refused to acknowledge anything. You just don’t understand what the case is about, or much of anything really.

                    3. Few things are worse than someone pettifogging their pettifogging.

                      And again, you don’t get that there are multi-causal explanations for things in the real world, and your comparisons involve that. The Lakers outdraw the Clippers because the Lakers have a long history of being a winning team with a larger fanbase to start with. Give the Clippers a championship or two, and a Kobe like guy for several seasons, and they may catch up.

                      Skill is OBJECTIVE…defined by a consistent pattern of victory. Skill begets victory which begets viewership, viewership begets revenue. I guess the Yankees have been doing it all wrong all these years. lol.

                      You’re feelings are obviously just hurt at this point. That’s fine I guess, but I didn’t mean to make you feel bad, so my apologies.

                    4. “And again, you don’t get that there are multi-causal explanations for things in the real world, and your comparisons involve that. The Lakers outdraw the Clippers because the Lakers have a long history of being a winning team with a larger fanbase to start with. Give the Clippers a championship or two, and a Kobe like guy for several seasons, and they may catch up.”

                      I’m not the one arguing that the only reason people watch sports is skill. That’s you. I’m the one arguing that revenue isn’t a proxy for skill.

                      “Skill is OBJECTIVE…defined by a consistent pattern of victory. Skill begets victory which begets viewership, viewership begets revenue. I guess the Yankees have been doing it all wrong all these years. lol.”

                      If we use this silly definition, the USWNT is more skilled than the USMNT. The Yankees haven’t been the most skillful team for many of the seasons they were the most popular. How could past performance affect the skill level of the present team?

                      “You’re feelings are obviously just hurt at this point. That’s fine I guess, but I didn’t mean to make you feel bad, so my apologies.”

                      You could never make me feel bad, so no need to apologize.

                      You could, however, explain what any of the points you are trying to make have to do with this case.

                    5. This conversation is difficult because you’re responding to multiple comments in the entire comment section, with slightly different arguments at each point, and even within the same thread throwing in red herrings like nobodies business. Worse, it’s like you’re denying the sky is blue by saying skill doesn’t translate to winning. Sometimes it doesn’t, but we have a long track record in human history that those more skillful a person or team is at activity X, when there is a competition, they usually win.

                      As for making you feel bad, I take my somewhat insincere apology back as unneeded. Anybody who is so cocksure of themselves that they are willing to put in writing what you have this afternoon about sports cannot be made to feel bad. That’s something we agree on then!

                    6. “This conversation is difficult because you’re responding to multiple comments in the entire comment section, with slightly different arguments at each point, and even within the same thread throwing in red herrings like nobodies business.”

                      I haven’t thrown out a single red herring. It’s not my fault you can’t keep your story straight.

                      “Worse, it’s like you’re denying the sky is blue by saying skill doesn’t translate to winning. Sometimes it doesn’t, but we have a long track record in human history that those more skillful a person or team is at activity X, when there is a competition, they usually win.”

                      I never said skill doesn’t help win games. I can’t believe you’ve never heard of a team getting outworked before. Our out athleted. Technical ability is far from the only thing that distinguishes teams.

        2. Joe,

          You are missing the point entirely. They are not making widgets. They are drawing viewers. Measuring their economic output by how good they are compared to the men is looking at the wrong measurement.

          If you want to base pay on revenues generated, and it’s not clear that you do, then the size of the audience matters, and whether the audience is bigger because of patriotism, or sexy outfits, or anything else, doesn’t matter.

          1. Aha ! At last something I can agree wholeheartedly with bernard on….

            …oh, what the hell, I’ll quibble.

            (a) revenues are really a proxy for
            (b) profits which are really a proxy for
            (c) increase in net present value, which is really a proxy for
            (d) “utils” (or satisfaction) for the owner of the business

            So, for example, if the warm satisfied glow that settles on USWNT from having contributed to “gender equality” delivers them more satisfaction than extra revenues, then that’ll do.

            Likewise, eg in an owner managed business, sticking to your Christian principles, earning the respect of your townsfolk, providing a job for your beloved daughter’s worthless husband, or getting more leisure time to go fishing, may deliver more satisfaction than would extra revenue.

            We get fooled into imagining that free markets are about maximising profits, period, because that’s what tends to deliver maximum utils to the people who get stock options from giant public businesses. And folk who invest in the stock market to fund their retirement. But these are just special cases, albeit very common ones.

            The general principle is about maximising satisfaction, not money. Money is not a bad proxy most of the time. But, as we all know, there’s more to life than money.

            It may be that USWNT has no intention of maximising profits. It may have – probably does have – other rainbows to pursue.

      2. What does that have to do with “skill” or, especially, “responsibility”? There is no doubt that men have more athletic ability than women. But that’s not skill, and that’s certainly not responsibility.

        So you’d have have OK with a brief that argued that the women should earn less than the men because they had less athletic ability than the men?

        But I’m not even sure your quibble holds water. Surely it takes more skill to beat the best male opponents in a soccer match than it does to beat the best female opponents.

        1. “So you’d have have OK with a brief that argued that the women should earn less than the men because they had less athletic ability than the men?”

          It would still be a terrible argument in this case, but at least it would be accurate.

          “But I’m not even sure your quibble holds water. Surely it takes more skill to beat the best male opponents in a soccer match than it does to beat the best female opponents.”

          Why would it take more skill for a man to beat the best male opponents than for a woman to beat the best female opponents?

          1. Why would it take more skill for a man to beat the best male opponents than for a woman to beat the best female opponents?

            I never said it would. Go back and read what I said.

            1. I read what you said. That’s why I said what I said. Did you read what I said before you said what you said?

              Because this argument is about the skill and responsibility that a USMNT player has to expend in his games compared to the skill and responsibility that a USWNT has to expend in her games.

      3. Alert VC readers will recall that Professor Coleman (cited above) has previously blogged here on the topic of scientifically based strength differentials between men’s and women’s athletes. But whatever the merits of this point, in using this differential as a basis for unequal pay, U.S. Soccer’s lawyers appear to have forgotten that one of U.S. Soccer’s missions is to promote gender equality in soccer. Thus, regardless of the argument’s legal merits, it directly contradicts U.S. Soccer’s values.

        Surely Professor Cassell doesn’t mean that U.S. Soccer’s commitment to general equality in soccer requires them to pretend that the “scientifically based strength differentials between men’s and women’s athletes” don’t exist, if they in fact do exist. Or maybe when he says “whatever the merits of this point”, that’s exactly what he means, because the merits are to him irrelevant.

  8. Woman players compete against teams composed entirely of women. Male players compete against teams composed of men. Does anybody seriously think it takes “equal skill, effort and responsibility” to compete against men, vs to compete against women”? The opposite has been pretty clearly proven true.

    1. “The opposite has been pretty clearly proven true.”

      How so? I don’t know how you could possibly prove that competing against men requires more “responsibility,” or even what that really means. “Effort” and “skills” are an individual things, which combine with athletic ability to determine how good you are. There’s no doubt that the athletic ability of the USMNT far exceeds that of the USWNT, but having watched the debacle that was the USMNT getting eliminated from the World Cup before it began by Trinidad and Tobago’s B team, you have some work to do to convince me about the relative levels of effort each team expends.

      1. “How so?”

        How so? Men are harder to beat than women. This is the whole reason we have women’s sports.

        If women soccer players want equal pay for equal work, we can just have non-gender soccer teams and let the best players win.

        1. “How so? Men are harder to beat than women.”

          But men are better athletes than women, and that applies to both sides of the competition. Why does it take more effort for a man to beat another man than for a woman to beat another woman?

          Not to mention that I still have no idea why you think it’s certain that is takes more “responsibility” to compete against men.

      2. And yet the debacle of the women’s team being destroyed by an amateur boys team isn’t worthy of consideration.

    2. I would say women playing against women takes equal skill, effort, and responsibility as men playing against men. I would say that because I’ve coached and refereed in both men’s and women’s leagues. I would be interested in hearing why you don’t think that’s true.

      Perhaps you’re arguing that for any particular team of either gender, it would take more skill etc. to play against a team of men than a team of women. Might or might not be true, but doesn’t reflect reality. That’s not how world soccer works.

      1. It’s also true that grandmas competing against grandmas takes equal skill, effort and responsibility ( aka, athletic performance) as men playing against men.

        But do these relative comparisons really merit equal pay?

        1. How do the revenues compare?

          1. As with most sports and athletics, revenues ( profits) generally correlate to performance excellence, which reflects skill sets, abilities and talents.

            So the hypothetical grandmas’ team, like the women’s soccer team, will take a back seat In revenues to those of the men, exceptions stipulated.

            1. But, while I remain skeptical, there is decent evidence that the USWNT revenues don’t take a back seat to the USMNT revenues.

              1. I already stipulated to exceptions. But it sounds like you’re saying that revenues ( i.e.; the market) should dictate the pay scale as opposed to contrived guidelines.

                No problem. The market will typically reflect and reward non-p/c criteria.

                1. Absolutely. The USWNT is probably the only major women’s team in the world that comes close to being able to make a claim that they should make as much as the men’s team. I don’t think there is any other major country where the revenues are in the same ballpark (there might be some small countries where neither team generates much revenue).

        2. “But do these relative comparisons really merit equal pay?”

          If the rule is that women who do the same job as men should be paid the same as men, then yes. The women on the US national team are doing the exact same job as the men on that national team.

          If the rule were that the market and the revenues generated by the teams should determine pay, then fine, so be it.

          1. The women on the US national team are doing the exact same job as the men on that national team.

            No they’re not. An Appeal Court judge is not doing the exact same job as a Supreme Court judge. Invading Grenada is not the same job as invading Germany. And the minor leagues are not the same as the major leagues.

            1. I agree that all your examples illustrate different jobs, but I cannot see their relevance to this discussion.

              1. The relevance is by way of refutation of your comment that :

                The women on the US national team are doing the exact same job as the men on that national team.

                My examples show that although you might be able to list the component activities of different jobs so that they look the same, that doesn’t make them the same in fact. An Appeal Court judge is reading briefs, listening to attorneys, thinking about the law, writing opinions etc. That’s what a Supreme Court judge does too. But one is playing in the minor leagues and one is playing in the major leagues.

                As to soccer. Here’s you earlier in the thread :

                Women’s and men’s games are very different. The strategies used, the formations and plays are very different, even the psychology. Saying it is the same game but slower is ignorant, in my humble opinion.

                So on what basis do you insist that “The women on the US national team are doing the exact same job as the men on that national team” ?

  9. It sounds like the women want the agency of equality to be on their select terms: I. E.; with a caveat that they needn’t be equal agents to obtain it.

    That’s fine if by equality you mean equal chance or opportunity; not so fine if you mean all the same.

  10. I know that many commenters support the argument that the men are more “skilled” than the women because lower-level men’s teams can beat and have beaten the women’s national team. But isn’t it pretty clear based on results (where the USWNT is traditionally one of the best in the world) that the women’s team is more skilled than the men’s team?

    In any event, I agree that better arguments should have been made here.

    1. “But isn’t it pretty clear based on results (where the USWNT is traditionally one of the best in the world) that the women’s team is more skilled than the men’s team?”

      It’s clear that the women’s team is more skilled than other countries’ women’s teams, but if the played the men’s team, they would get mud-stomped because they get handily beaten by boy’s amateur teams.

      1. So what? They aren’t paid to compete against men’s teams. How is that relevant to the legal filing? They are paid to perform the same task, compete against other teams of the same gender.

        1. It matters, because skill level is what draws fans. The NBA has more fans than the WNBA, because the product (gameplay) is more fun, exciting, and dynamic to consume.

          1. I don’t know that “skill level” is what draws fans. For example, I think that the UNWNT revenue from 2016-2018 is slightly more than the USMNT revenue over that same period. Fans might be interested in things like backing a winning team, for example.

            In any event, the fact that the men’s team could beat the women’s team doesn’t mean that the women aren’t more “skilled,” especially where the reason for the outcome could be size, strength, speed, etc. – none of which are the same as “skill.”

            1. When one person, or team, beats anther team by a decisive margin without massive luck being involved, it’s because of skill.

              Yea, lots of fans watched the women’s team because they were winning. Fair weather fans. But underlying that is the men’s sports have way more fans than women’s sports, soccer included, when 50% of the populace is female, because the skill of the participants makes for a more interesting product.

              1. “When one person, or team, beats anther team by a decisive margin without massive luck being involved, it’s because of skill.”

                Or any number of factors, including athletic ability. But have you really never seen a situation where one team blows out the other in the first game, only to have the situation reversed in the next? Was it the Astros or the Nationals that lost their skills on the plane rides between Houston and DC during the last world series?

                “Yea, lots of fans watched the women’s team because they were winning. Fair weather fans. But underlying that is the men’s sports have way more fans than women’s sports, soccer included, when 50% of the populace is female, because the skill of the participants makes for a more interesting product.”

                You keep pretending that this some general dispute about men’s and women’s sports. It’s not. This is about two particular teams.

                1. Yea…it’s about two particular teams…one of which is composed of men and one of which is composed of women…both of which are playing the same sport. Therefore, we can compare the two. Sheesh.

                  Did you collect a lot of participation trophies as a kid? Are there no medals laying in a shoebox in your closet? Skill means victory. A thousand things may happen any given Sunday, but when it comes down to it, the more skilled team wins. Arguing against that is like saying the sky isn’t blue.

                  1. “Yea…it’s about two particular teams…one of which is composed of men and one of which is composed of women…both of which are playing the same sport. Therefore, we can compare the two. Sheesh.”

                    So why do you so steadfastly refuse to make the relevant comparison between the two teams?

                    “Did you collect a lot of participation trophies as a kid? Are there no medals laying in a shoebox in your closet? Skill means victory. A thousand things may happen any given Sunday, but when it comes down to it, the more skilled team wins. Arguing against that is like saying the sky isn’t blue.”

                    I suspect that you didn’t play many sports growing up if you think skills are what drives the outcome of games.

                    1. I’m the one making relevant comparisons, you’re the one making irrelevant comparisons to other sports. When this is about money, and

                      I’ll tell you what, I hate to humblebrag, but I’m a state champion, and I know a few things about what it takes to win against the best. Please, enlighten me then what matters more than skill. I’m on the edge of my seat. And if you say drive, determination, luck, or whatever, you’re full of shit. Practice develops skills, and determination means you don’t quit training those skills, and you mostly make your own luck (though only a fool denies that randomness doesn’t play a part in sport).

                    2. “I’m the one making relevant comparisons, you’re the one making irrelevant comparisons to other sports. When this is about money”

                      So why do you keep pretending its about skill?

                      “I’ll tell you what, I hate to humblebrag, but I’m a state champion, and I know a few things about what it takes to win against the best.”

                      That’s not humblebragging, that’s just bragging.

                      ” Please, enlighten me then what matters more than skill.”

                      I can’t believe you’ve never heard of a team getting outworked before. Our out athleted. Technical ability is far from the only thing that distinguishes teams.

              2. lots of fans watched the women’s team because they were winning. Fair weather fans.

                So? They don’t count? The ad dollars aren’t green?

          2. “It matters, because skill level is what draws fans.”

            For the sake of argument, I’ll agree with that statement. It still is entirely beside the point. The question is whether the women on the national team are doing the same job as the men on their national team. And the answer is yes they are. They are both playing soccer against other national teams of their same gender. Their job isn’t playing against men’s teams, so the relative ability of the genders doesn’t enter into the question.

        2. “They aren’t paid to compete against men’s teams.”

          Doesn’t that undercut the argument that they are receiving unequal pay for equal work?

          1. A heavyweight boxer who is still doing six-round prelim bouts would clean the clock of the lightweight champion of the world. But nobody sets up bouts between the lightweight champion of the world and some heavyweight ham-and-egger. You compete against your own. People will pay good money to watch a lightweight title bout between two skilled fighters, either of which would not last a round against some random cruiserweight. They will sometimes pay more money for a heavyweight title bout, though not always, as when the contending heavyweights are boring mediocrities. The question isn’t whether Roger Federer would wax Serena Williams, or whether the men’s soccer team would beat the women’s soccer team, it’s how Federer-Djokovic draws versus Serena-Whoever, or how the men’s soccer team draws versus the women’s soccer team. That is an honest argument.

          2. How does that undercut the argument? I’d be interested in reading your elaboration of that point, because I think that’s the crux of the disagreement.

            1. If you wanted a perfect discrimination case you’d have the men play women, get paid more, even though the women (playing women) draw more viewers. Relatedly, I understood (could be wrong, I haven’t read all the pleadings) part of the USWNT’s argument to be that they’ve had more non-financial success than the men. World Cups. But that invites the apples to oranges comparisons in competition levels.

    2. “isn’t it pretty clear based on results (where the USWNT is traditionally one of the best in the world) that the women’s team is more skilled than the men’s team?”

      The comparison does not work. They are playing far weaker teams and they get many of the best US female athletes. The best male athletes in the US play football or basketball or baseball, not soccer.

      Is the WNBA champion more skilled at basketball than the current NBA Cavs, 19-45 and the worst team in the NBA?

    3. By this “logic” the world champion little league team last year is more skilled than most of the MLB teams.

    4. But isn’t it pretty clear based on results (where the USWNT is traditionally one of the best in the world) that the women’s team is more skilled than the men’s team?

      No.

      They are more effective than the men’s team relative to the teams they play.

      So, as others have said, “skill” is not necessarily coextensive as good, effective etc

      And the women are in a different competition against different teams. The dominant college football team is not better than the mediocre teams propping up their divisions in the NFL. As a game between them would show.

  11. Not the biggest soccer fan but I’m assuming women don’t pull in as much money as the men. Not exactly rocket science. I have no idea why the everybody’s scrambling around as if theres no plausible explanation aside from a conspiracy of sexism.

    1. My understanding is that the contract by which the men’s and women’s team is paid are different. The men make more, the better they do with a low floor, while the women’s is more egalitarian with lower payouts for success in order to make a higher floor. It’s all a small microcosm of gender differences everywhere else.

      When the women’s team has been winning handily against other women’s team, now they want to paid as much as the men would if the men’s team had won the World Cup, etc. The women’s team should have negotiated harder, knowing that they are better than their peers. Whilst the men’s team, which can’t compete against other men’s teams in the world because all the good athletes go into other sports in America, should have a contract like the women’s contract.

    2. “Not the biggest soccer fan but I’m assuming women don’t pull in as much money as the men.”

      That is not at all clear when it comes to the revenues generated for USSF by the USWNT and USMNT, the only revenues relevant in this case. There are a number of factors that make a comparison difficult, including different cycles for the World Cups, sponsorship contracts for the USSF that don’t distinguish between the teams, different number of home games, etc.

      As a general rule, however, it is true.

    3. The lawsuit is based on the Equal Pay Act and Title VII. If these are being violated, the amount of money the women “pull in” doesn’t really matter. Less a “conspiracy of sexism” and more an alleged violation of the law.

  12. “Until the language is formally withdrawn, it is hard to disagree with the USWNT that the apologies thus far have been nothing but cheap talk.”

    Is that how law works, one withdraws arguments that while true are politcially incorrect? Please tell me how bells get un-rung.

    I feel relieved that the professor is no longer on the bench, sorry to say

    1. The problem, I think is that 1. the argument is not obviously true, and 2. U.S. Soccer takes the official position that it is, in fact, not true.

      If U.S. Soccer wants a court to find that the argument is actually true, they can certainly do that. But I think it’s appropriate to hold them accountable for advancing that position—and I wish that would happen more often.

  13. No one is more hated than he who speaks the truth.

  14. “But whatever the merits of this point, in using this differential as a basis for unequal pay, U.S. Soccer’s lawyers appear to have forgotten that one of U.S. Soccer’s missions is to promote gender equality in soccer.”

    This is a point about PR right? Not some legal argument that the corporation is bound by its stated platitudes. In the age of woke capital, all corporations pledge to promote sacralized values like “diversity” and “equality”, but–unless they enter into a binding contract to meet some quota (which would be illegal itself)–i dont see how they are legally bound by these platitudes.

    1. The point isn’t that they are legally bound by their mission statement. The point is that if they want to advance an inconsistent statement in court, it is fair to conclude that they are not actually trying to advance that stated mission (and, to the extent you value that mission, to hold that failure against them).

      1. And they are a nonprofit that fund raises, in part, on that mission statement.

  15. “…are called upon to perform the same job responsibilities on their teams…”

    Well, if the criterion for equal pay is limited to just this, why not allow 70 year olds to form a team, along with eight year olds. They, too, can make the same ( job responsibility performance) claim, and you’d achieve the core value of achieving age equality.

  16. The fact of the matter is, sports is largely an entertainment business. It’s no different from music. It may take the same skill level to be the number 100 band as the number 1 band. But the fact of the matter is, the number 1 band takes in a lot more money and is going to pay more than the number 100.

    I agree it was a mistake to focus on skill. Perceived entertainment value is a subjective matter that simply has nothing to do with skill as defined by skills assessments. The only “objective” measure of entertainment value is how much people are willing to pay to be entertained.

    1. But the money earned by pop musicians isn’t from a salary, it is percentage of records sold and gate receipts etc. The money earned by soccer players on the national teams is salary paid by the United States Soccer Federation. Therefore the Equal Pay Act and Title VII apply. Those rules don’t apply in the case of pop music bands.

      1. “The money earned by soccer players on the national teams is salary paid by the United States Soccer Federation.”

        Not for the men, and the base salary is only part of the compensation the women receive.

        “While the women’s players have a base salary ($72,000) that is supplemented by bonuses for winning games ($1,350 per win), the men receive a per-game bonus ($5,000 per game) and receive a bonus for each win ($3,166 per win).”

        1. Those numbers are from 2016, and might be slightly different today.

        2. This is actually a huge point in this discussion that seems to be forgotten by many people – the Women’s team negotiated an entirely different type of contract than the Men’s team.

          If the Women’s team were paid in the same style as the Men’s team (regardless of same dollar values or not) most of the Women’s team players would take a major pay cut.

          1. I believe the women who were called up regularly would see a raise, while those who aren’t would see a dramatic pay cut. And they would all lose their insurance.

          2. Yes, and that is the other issue that will decide the case. But not relative skill and speed between the genders, or how much revenue the teams generate, or anything else being discussed here.

  17. Since there seems to be some confusion, the meaning of “skill”, from thelawdictionary.org

    Practical and familiar knowledge of the principles and processes of an art, science, or trade, combined with the ability to apply them in practice in a proper and approved manner and with readiness and dexterity

    Whether or not it was sexist, offensive, self-contradicting, or otherwise inapt for US Soccer to point out that the US women’s team players have less skill at soccer than the US men’s team players, the simple truth is that the argument is true. Anyone remotely familiar with the sport would expect, in a match between the two teams would expect the men’s team to crush the women’s, demonstrating the men had more “ability to apply [their knowledge of the principles and processes of soccer] in practice in a proper and approved manner and with readiness and dexterity”.

    1. So the reason that the Olympic record in the snatch for the 105 kg category is higher than the record for the 56 kg category is because the bigger guy is more skillful? That seems odd to me.

  18. Scorched-earth litigators don’t think about “optics.” Their job is to think like reptiles and reptiles don’t give a damn about “optics.”

  19. Why don’t they just make a single gender neutral league.

  20. In the interest of ending this debate for all time US Soccer give the women what they want and give it to them good and hard. Concede the skill and pay demands, declare the goal of gender equality achieved, disolve both national teams to reform as a gender neutral team and field the best team from the expanded pool of completely equally qualified candidates that provides.

    Or just have those cut from the men’s team self-identify as women and try out for the women’s team and let the more skilled players have the spots they earn.

    1. Why would the USSF give up a significant source of revenue by turning two teams into one?

      1. Obviously you missed the intent of the comment…the women wouldn’t be able to make it past tryouts to the men’s team.

        1. No, I got the intent of the comment.

          1. Then your comment back to him was even sillier than I originally thought.

            1. Yes, but we’ve established that thinking isn’t really your thing.

      2. Now I see the problem. You don’t understand the difference between revenues and margins. the WNT loses money at their current pay structure at world champion home games levels.

        1. Is that counting all the donations, sponsorships, and other revenue they generate? I’m a little skeptical the USMNT can generate enough revenue to cover its costs and float the USWNT as well, but maybe they make more money from youth soccer than I realize.

  21. It amazes me women’s soccer got this many comments. If they could get as many fans at their regular season games, they would be getting paid the same as the men!

    1. I’ve often said about soccer that more people in the US play it than watch it.

  22. I see that on following the link, the USWNT’s statement of the definition of “equal work” :

    “equal work,” which under the EPA’s implementing regulations is defined as work that requires “equal skill, effort and responsibility.”

    is not entirely accurate. It misses out a critical “equal.”

    Per the regs “equal work” is :

    “equal work on jobs the performance of which requires equal skill, effort and responsibility

    ie that job P requires equal skill, effort and responsibility as job Q is not sufficient to make job P into “equal work” with job Q. You need first to have “equal work” and then also to have equal skill, effort etc.

    The definition in the regs is not therefore clarifying what counts as “equal work” it is clarifying the qualifier “requires” in the secondary condition – ie that ‘requires” may be understood in an approximate rather than precise sense.

    So we are left with the problem of what “equal work” means, and whether it is measured by reference to input or output.

    Skill, effort and responsibility are measures of input and so if “equal work” is intended to refer to work input, they would seem to be redundant. On the other hand, if “equal work” is intended to refer to work output, adding in further qualifiers about input is not redundant. It is merely odd – if the law wants equal output to be equally rewarded, why would it care about inputs at all ?

    I suppose that this is the sort of thing we must expect to happen, if Congress chooses to enact slogans.

Please to post comments