“[T]he job of Men’s National Team player[s]… requires a higher level of skill based on speed and strength than does the job of Women’s National Team player[s]…”—United States Soccer Federation legal filing arguing that male soccer players should be paid more because they are stronger and faster.
Games aren’t being played, but the business of sports is alive and well—including in the legal arena. One of the most significant storylines playing out at the moment surrounds the United States Women’s National Soccer Team (USWNT) gender-discrimination lawsuit against the United States Soccer Federation (USSF). The trial is set to begin on June 16 in federal court in Los Angeles, and it is already poised to be the most intriguing battle for equal pay we’ve seen in quite some time.
A series of inflammatory claims were made by the USSF in its March 9thresponse to the USWNT’s Motion for Summary Judgment. Interestingly enough, their argument against the men’s and women’s teams being paid the same might have been considered strong … that is,
if it had been made prior to 1999 (more on that in a moment). Instead, they provided yet another example of a legal approach that turns out to be a terrible communications approach. It’s clear that USSF lawyers didn’t consider, or worse, didn’t care, about taking an antagonistic tone towards players most view as American heroes.
The strategy employed by the USSF’s legal team was as shockingly oblivious to public perception as one could imagine
It’s almost as if the lawyers didn’t understand that journalists have access to these documents. Public relations professionals around the world collectively cringed upon hearing the contention that the women’s national team should not be paid as much as the men’s team because they’re not as strong or as fast as the men and don’t have to deal with as much scrutiny during road games.
This raises an important question that not enough lawyers in 2020 are asking themselves — how can I present my best argument without being considered insensitive and tone-deaf by the public?
In this instance, you have to go back in time nearly three decades ago for proper context.
The term “Girl Power” was coined by a female punk rock band in 1991. A real-world personification of that term, however, came in the form of the USWNT that won the first ever Women’s World Cup title that same year. As great a first step as this was for women’s soccer in the United States, it wasn’t until 8 years later that an unprecedented level of superstardom was achieved. The 1999 team led by Mia Hamm, Brandi Chastain, and Julie Foudy, defeated China in the World Cup Final in an unforgettable overtime shootout that took place at the Rose Bowl in California in front of over 90,000 fans.
The U.S. Men’s team, conversely, has largely not shown any major progress in the last 20 years and bottomed out when it failed to qualify for the 2018 World Cup. The very fair public perception is that the U.S. Women’s team is consistently the best in the world, while the U.S. Men’s team has yet to rise to the level of its European and South American counterparts.
The push for equal pay
Last year, the USWNT successfully defended its 2015 World Cup victory. It was their fourth overall and it was certainly no easy task as they were again the favorite and the main target of every other nation in the tournament. Immediately following the celebration, talk turned to members of the team fighting for equal pay with their male counterparts. It ended up being more than talk: They sued. It’s presumably at this point that USSF’s legal team began to, in earnest, develop a defense strategy.
Lawyers, as we know, are trained to present the facts, feelings be damned. But as we’ve seen time and time again recently, that rote delivery of facts can be perceived by the public as obtuse and even callous. This is exactly how USSF’s case played out to the masses. When the court filing that caused the blowback was made public, those reacting negatively included advertisers: Volkswagen, for example, said it was “disgusted.” The heat got bad enough that the federation’s president, Carlos Cordeiro, decided to resign just three days later. He issued an apology as well.
His replacement, fittingly, is Cindy Parlow Cone, a member of the legendary 1999 Women’s World Cup champion team. Cone apologized for the sexist language (“Last week’s legal filing was an error”). The federation brought on an additional law firm, and when it filed a new court brief on March 16, the press coverage noted the “different tone” in that it praised the women players.
Even in the earlier filing, along with the misogynistic “men are stronger than women and bear more responsibility” line of defense, the USSF lawyers presented more straightforward assertions about the men’s team competing in more lucrative tournaments, having higher television ratings, and generating more revenue than the women’s team. All valid points if they can be proven. These perfectly legitimate and less offensive arguments, however, were buried in the public narrative by the headline-grabbing sexist assertions.
While the original USSF lawyers should have foreseen this backlash, if the federation itself wants to understand where it went wrong, it need only look inward. Neither former President Cordeiro nor the board did anything to stop their lawyers from causing damage to their public perception in this hotly debated legal battle.
Unfortunately, as we’re seeing, many firms have been slow to make the adjustments necessary to build a successful case in both actual court and in the court of opinion.
Update: U.S. soccer has since officially dropped the “skill” argument and its original law firm requested to withdraw as counsel.