By taking the initial procedural steps in seeking to reverse last week's legal setback in their pay discrimination lawsuit against the U.S. Soccer Federation, members of the women's national team indicated that the two sides remain far apart on any potential settlement.
The plaintiffs on Friday filed two motions in federal district court in California. One seeks to postpone the trial currently scheduled to start June 16 in the district court. The other related motion seeks to be able to immediately appeal last week's ruling against their Equal Pay Act claims to the U.S. Court of Appeals for the Ninth Circuit.
"The argument that women gave up a right to equal pay by accepting the best collective bargaining agreement possible in response to the federation's refusal to put equal pay on the table is not legit reason for continuing to discriminate against them," said Molly Levinson, spokesperson for the players. "Today we are filing a motion to allow us to appeal immediately the district court's decision so that the Ninth Circuit will be able to review these claims."
Judge R. Gary Klausner last week granted U.S. Soccer's motion for summary judgment on EPA claims by the players -- that they were paid less than their male counterparts. Based in large part on the different collective bargaining agreements negotiated by the two teams, Klausner's ruling determined that "no reasonable juror," as the summary judgment standard puts it, could rule in favor of the plaintiffs on the evidence presented. It dismissed the portion of the lawsuit that led to fans at last summer's World Cup to chant "equal pay" after the U.S. retained its title.
"Equal pay means paying women players the same rate for winning a game as men get paid," Levinson said. "The argument that women are paid enough if they make close to the same amount as men while winning twice as often is not equal pay. The argument that maternity leave is some sort of substitute for paying players the same rate for winning as men is not valid, not fair, nor equal."
Klausner also last week granted summary judgment in favor of U.S. Soccer with regard to a claim by players that forcing them to play on artificial turf more often than their male counterparts was a violation of Title VII of the Civil Rights Act of 1964. The judge left unsettled two Title VII claims by the players, one with regard to discrimination in travel and accommodation and the other with regard to support staffing.
Prior to the new motions, and barring any settlement beforehand, the lawsuit would have proceeded to trial in June on only those two relatively narrow Title VII claims.
Employment lawyer Tom Spiggle said the new motions suggested a desire to prioritize the appeal of the EPA claims in the Ninth Circuit.
"The only reason they would go to trial is if they have to to get it resolved in order to [appeal and] get a ruling from the Ninth Circuit on the bigger issues here," Spiggle said. "Which is kind of the whole point of this motion. ... The real meat of this argument is going to be decided by the Ninth Circuit anyway, why don't we just go ahead and push the trial and let the Ninth Circuit decide it."
Spiggle described the new motions, which the district court will rule on, as somewhat unlikely to succeed but "not quite a Hail Mary." If the motions fail, the players would have to wait for the resolution of the Title VII claims in district court to proceed with an appeal on the equal pay claims at the appellate level.
"The practical reality," Spiggle said, "is that the case is highly likely to settle, one way or the other, once the Ninth Circuit rules on the grant of summary judgment on the EPA claims."
Although the appellate court could expedite the appeal, it would more likely take at least a year and probably extend beyond next summer's rescheduled Olympics, as well the current CBA, which expires Dec. 31, 2021.
Until any distant resolution from an appellate ruling, the two sides appear at loggerheads when it comes to any potential settlement in the short term.
A U.S. Soccer spokesperson told ESPN this week that the organization's offer to restart settlement talks, as laid out in a March 7 letter by then-USSF president Carlos Cordeiro, remains on the table. But at present, the players have yet to agree to resume negotiations.
Cordeiro contended in that letter that the federation extended "multiple contract offers" to the USWNTPA in February and was willing to sit down for talks (though the union representing the players is not party to the lawsuit and would not play a role in settlement negotiations). New USSF president Cindy Parlow Cone also said shortly after taking office that she viewed settlement as preferable.
But on "CBS This Morning" earlier this week, star player Megan Rapinoe indicated the impasse wasn't over a willingness to talk but an inability to even find common ground on what to discuss.
"I think that we've been very transparent about our openness to a settlement," Rapinoe said. "Ultimately what we want to get is something that's fair and equal. And if that comes in the form of a settlement, we are definitely open to that.
"I don't think anybody is dying to go into litigation or go to trial or go through a lawsuit. This has been a very arduous process as players. We're always open to that. But with that, we're not going to settle. We know what we're worth. We feel very strong in our case, even with this ruling. Maybe even -- even stronger now. So settlement is always on the table. We'll always have open ears to that. But it will be nothing less than equal."
If the players are unsuccessful in Friday's motions, and if settlement talks -- or talks about settlement talks -- continue to stall, the lawsuit could still proceed to trial on the two Title VII claims. But perhaps not in June. The motions filed Friday, unopposed by the defense, also sought to reschedule any trial "for a few months out" in response to the coronavirus pandemic.
Nor are the players necessarily in as weak a bargaining position as last week's ruling might suggest. The narrow Title VII claims are not as significant as the equal pay claims, but any trial could put U.S. Soccer officials and former officials back in the spotlight. And lawyers for the players would presumably argue between now and then to include as much evidence as possible originally linked to the EPA claims -- for instance, Cordeiro's statement while running for president that "our female players have not been treated equally."
"Setting aside which is the bigger legal claim, it's not going to be fun for the defendants to have a trial," Spiggle said. "My guess is they settle this before it does. Because all you need is one claim to go to a jury trial and you've got, quite appropriately, [media] following this. You're going to have people being put on the stand to testify. And it's going to be ugly for the defendants no matter what."
Spiggle also noted that while potential damages for Equal Pay Act claims involve back pay (the players were asking for $66.7 million), Title VII claims bring in the possibility of emotional distress damages.
"They can put on evidence about that," Spiggle said. "How did this make the women feel? How did this impact their stress level?"
Testimony from players on that front could presumably further damage the federation's public image, already battered by missteps like the language in earlier filings from legal counsel at the time that created a backlash from fans and sponsors and led to Cordeiro's resignation.
ESPN's Jeff Carlisle contributed to this report.