March 12, 2020 / 8:36 PM / 20 days ago

U.S. Soccer’s lawyers learn the hard way that legal arguments can be terrible P.R.

(Reuters) - On Wednesday night, as the U.S. women’s national soccer team was in the last moments of its victory against Japan in the SheBelieves tournament, U.S. Soccer Federation president Carlos Cordeiro issued a truly extraordinary statement, apologizing for the federation’s most recent filing in the women’s team’s equal pay and gender discrimination suit. The filing, Cordeiro said “did not reflect the values of our federation or our tremendous admiration of our women’s national team.”

An abject apology for a routine legal brief? If ever there were an object lesson in the consequences of asserting a legally justified – but utterly tone-deaf – argument, this is it.

The filing – a response to a motion for summary judgment by the women’s lawyers at Winston & Strawn – argued (among other things) that the women’s equal pay claims must fail because their work is not equal to the work of the men’s U.S. national team. The men’s game requires more speed and strength, the federation’s brief said, citing deposition testimony in which star player Carli Lloyd said the women’s team could not compete against men’s national teams. “It is indisputable ‘science,’” wrote U.S. Soccer’s lawyers at Seyfarth Shaw.

And it’s not just that playing against men’s teams requires a “higher level of speed and strength,” the brief said. U.S. Soccer’s lawyers contended that the women can’t make the requisite showing, under the Equal Protection Act, that they have the same responsibilities as men on the national team. The men’s team competes in more tournaments with higher television ratings and bigger prize money than the women’s team, Seyfarth argued. Even playing conditions on the road are unequal, the brief said, because the men’s team faces crowds far more hostile than audiences at women’s tournaments.

“The job of (a male national team) player requires materially different skill and more responsibility than (the women’s) job does, while also taking place under materially different working conditions,” the brief said. “Simply put, they are materially different jobs that cannot be compared under the EPA.”

This week’s brief was not the first time that the U.S. Soccer Federation has insisted that women on the national team are not the equals of players on the men’s team. The federation made the same argument in its motion for summary judgment last month. The women’s lead lawyer, Jeffrey Kessler, told me at the time that U.S. Soccer’s argument was precisely the sort of discriminatory sex stereotyping that civil rights laws were designed to address. And in the women’s response to the federation’s summary judgment motion, Winston & Strawn argued that the job skills and responsibilities for professional soccer players on the U.S. national teams are the same, regardless of the players’ gender. The federation’s argument that the U.S. women didn’t have to play against the most elite men in the game to win their two World Cups “is not a defense under the EPA,” the women’s brief said. “It is a tone-deaf admission of blatant gender-based discrimination.”

The federation’s previous assertion that women players simply aren’t comparable to men didn’t get much attention. I’ll confess: I didn’t even focus on it in my coverage of U.S. Soccer’s summary judgment motion, highlighting instead the federation’s contention that the women’s union is responsible for any pay gap between male and female players.

But this week’s filing captured the public’s attention. And, hoo boy, the public did not react well to the federation’s equal pay argument. I’ve never seen a legal filing generate as resounding an outcry as this one. U.S. Soccer sponsors including Coca-Cola, Visa and Budweiser denounced the federation’s assertion that women players are not equal to their male counterparts. Deloitte, a lead sponsor of the SheBelieves tournament, told The Wall Street Journal it was “deeply offended” by the brief’s arguments. And when the women players took the field to warm up on Wednesday night, they turned their jerseys inside out to hide the U.S. Soccer crest.

The backlash culminated in the soccer federation president’s apology Wednesday night. “On behalf of U.S. Soccer, I sincerely apologize for the offense and pain caused by language in this week’s court filing,” Cordeiro said. “I have made it clear to our legal team that even as we debate facts and figures in the course of this case, we must do so with the utmost respect not only for our women’s national team players but for all female athletes around the world.”

Cordeiro also announced that he was bringing in Latham & Watkins to lead the case. Seyfarth had been in charge of U.S. Soccer’s defense since the case began last March. Seyfarth partner Brian Stolzenbach did not respond to my email requesting comment. A U.S. Soccer Federal spokesman said the group had no comment beyond Cordeiro’s statement Wednesday.

Lawyers get paid to represent their clients. Kessler, the women’s team’s lawyer, has said that’s been particularly challenging for the soccer federation’s counsel because the evidence of discrimination is “so clear” in this case. Seyfarth certainly advanced some novel arguments on the federation’s behalf before this week’s filing, contending last fall that the women’s class could not be certified because the proposed class representatives out-earned the top-paid players on the men’s team. (That argument flopped rather spectacularly: U.S. District Judge Gary Klausner of Los Angeles certified the women’s class last November, in a decision underscoring that women should not have to work twice as hard or achieve twice the success of their male counterparts to receive equal pay.)

U.S. Soccer’s equal pay argument was not completely baseless. The federation quoted testimony from women players and cited precedent that could be read to hold that to prevail under the Equal Pay Act, women must perform exactly the same job under exactly the same conditions as men. (The women’s team’s lawyers said the federation’s interpretation was profoundly wrong.)

What we’ve all learned from the response to U.S. Soccer’s filing is that in a closely-watched case like this one, lawyers have to balance the potential benefits of aggressive argument with the public relations consequences of asserting a controversial position. Last month, in the federation’s motion for summary judgment, Seyfarth wrote that it was time to change “the public narrative surrounding this lawsuit.” This week’s filing changed the narrative – but not in the way Seyfarth had hoped.

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