A new filing in the United States women’s national team’s lawsuit against the U.S. Soccer Federation included the first impact of the coronavirus pandemic on the impending trial. Both parties agreed to delay key depositions.
The build-up to the trial grew contentious last week, when sexist language used by the legal team representing U.S. Soccer led to a protest by the USWNT and the eventual resignation of former president Carlos Cordeiro.
However, the spread of COVID-19 in the U.S., which spurred the government to discourage travel and gatherings of more than 10 people, brought a brief moment of unity. The two parties agreed to reschedule the depositions of Caren Goldberg, Ph.D and Dr. Robert Noll for on or before April 9 and April 21, respectively. The original deadline for expert witness discovery was April 3.
The trial is scheduled for May 5, however future delays because of coronavirus concerns could force the court to reschedule, pushing the date even closer to the Tokyo Olympics in July.
The women’s national team first filed the lawsuit March 8, 2019. Their argument alleged “institutionalized gender discrimination” resulted in the women earning less across the board, from per-game salaries to bonuses, compared to the men’s national team.
The counter argument from U.S. Soccer said the men’s and women’s teams negotiated separate collective bargaining agreements, which was the source of disparity in pay structure. U.S. Soccer also claimed the women’s national team made more than the men in total compensation.
Last week, depositions released to the public included an argument from U.S. Soccer lawyers that the teams deserved different compensation because the men’s jobs required higher levels of skill and pressure.
In early February, the men’s national team released a statement supporting the women’s side and saying the women earned triple the men’s compensation only because of their success on the international level.
Removal of expert witnesses
In a separate filing, USWNT lawyers called for the removal of three USSF expert witnesses ahead of trial — Philip Miscimarra, Carlyn Irwin and Dr. Justin McCrary.
The lawyers argued the experts should not be allowed due to the “confusing and erroneous nature” of their arguments, which they believe could confuse a jury.
Miscimarra, the former chairman of the National Labor Relations Board, was called upon to establish several points for the USSF defense. One of his main arguments is that allowing mid-contract changes in collective bargaining agreements would undermine the pre-existing regulatory scheme of the NLRA. The plaintiff argued Miscimmarra’s deposition goes against legal precedent and relies too heavily on opinions to be a credible use of an expert witness.
Irwin supported the USSF argument that the women’s national team made more than the men in total compensation, pointing out the women’s compensation during certain calendar years. However, the argument ignores the counterpoint that the women played more games and won more international tournaments those years.
Lawyers for the women’s national team continue to argue total compensation is not a valid way to evaluate compensation because it doesn’t take into account bonus structures or how much players are making per game. The plaintiff added that just because the women succeeded in overcoming the odds to considerably outperform the men doesn’t mean the current pay structure is equitable.
The final expert witness decried by the women’s legal team was McCrary, an economist who focused on the differing CBAs.
McCrary made two main arguments in his deposition — first, that neither of the two contracts are “systematically better or worse,” and second that there isn’t an established rate of pay for either contract. The first argument is one of the tenants of the overall USSF argument, which says the men’s and women’s national teams can’t be compared because they are two separate contracts.
The lawyers for the women’s national team say legal precedent states the opposite, that the comparison of different compensation packages is necessary in this type of case. They pointed out that if McCrary’s logic were legal, then any employer could evade EPA and Title VII obligations by creating separate compensation packages for men and women.
The women’s lawyers go on to argue McCrary “cherry picked” data by creating a hypothetical simulation where teams play eight or 16 games a year, rather than basing his argument on factual data from the number of games actually played by both teams during the period contested in the lawsuit.
They also contested one final part of McCrary’s deposition: that some players were compensated better under the women’s CBA than they would have been under the men’s CBA. The USWNT filings said this was true in specific cases — several players received severance packages or payments while they were injured that don’t exist for the men’s team — but the women are missing out on millions as a collective group. Even taking into account maternity leave and injury protection, the lawyers for the women’s team said the total losses for the women outweigh the rare gains in specific circumstances.
The court will now decide if the USSF lawyers will be allowed to call on these expert witnesses during the trial.