U.S. Soccer adopted a more conciliatory tone Monday in new filings in the ongoing wage discrimination lawsuit between the organization and members of the U.S. women's national team, the first major filings since the resignation of federation president Carlos Cordeiro.
But even amidst softer legal language, accompanied Monday by an apology from new president Cindy Parlow Cone, U.S. Soccer insisted in its brief that players had no grounds to pursue the lawsuit. The federation argued again that it paid women's players more than men's players over the past five years, negotiated a separate collective bargaining agreement with the women in good faith and also could not be held responsible for the gender disparity in FIFA prize money.
The players continued to argue that they are paid a lesser rate for equal work, that precedent says they cannot collectively bargain away their protection under the Equal Pay Act or Title VII of the Civil Rights Act of 1964 and that U.S. Soccer ultimately controls the distribution of prize money for the World Cup.
In contrast to last week's filings by the federation, which came in the midst of the SheBelieves Cup and stirred controversy for saying the plaintiffs lacked grounds for their complaint because women's players were biologically inferior to men's players and did not have the same "responsibility" as their male counterparts because of lesser competition, Monday's brief came accompanied by a conciliatory statement from Parlow Cone. The former World Cup winning player with the U.S. began with an apology for what preceded her.
"Last week's legal filing was an error," Parlow Cone said in a statement. "It resulted from a fundamental breakdown in our internal process that led to offensive assertions made by the Federation that do not represent our core values."
Cordeiro resigned last Thursday, a day after publicly apologizing for the language of the filings, which he said he had not reviewed beforehand.
Monday's filings on behalf of U.S. Soccer were made by the firm of Latham and Watkins. Before he resigned, Cordeiro announced the federation would be adding new representation in the wake of the criticism surrounding the language and arguments in its earlier filings.
"We are going to do a comprehensive review of our internal process to better understand how this breakdown occurred and how it can be avoided in the future," Parlow Cone's statement continued. "I expect that review to be completed shortly."
But in their brief filed Monday in support of their earlier motion for summary judgment, the plaintiffs seized again on the language employed in last week's federation filing.
"USSF brazenly argues that the Court cannot hold it accountable for paying the world champion WNT players a lesser rate of pay than the MNT players because the women have not performed, and could never perform, equal work to the men," the plaintiffs' brief stated. "Why? Because, according to USSF, women are not as biologically strong or fast as men, because women do not play in the purportedly more demanding world of male soccer (in front of supposedly more critical fans), and because the WNT players do not, according to USSF, carry the special "responsibility" of playing for higher World Cup prize money."
The federation argued Monday, as it has throughout the lawsuit, that the women's team chose a collective bargaining agreement that offered more built-in security than the CBA negotiated by the men's team, including guaranteed salaries and additional benefits.
The plaintiffs countered again that legal precedent determines a group cannot collectively bargain away its right to equal protection.
"The undisputed facts demonstrate that equal pay was not achieved at the bargaining table because USSF refused the union's bargaining demands," the players' brief stated, "And presented it with a "take it or leave it" offer which the union accepted rather than subjecting its members to a work stoppage while Plaintiffs continued to pursue their legal claims for equal pay."
The sides also sparred again over FIFA prize money and the gap between the $38 million France received for winning the 2018 men's World Cup and $4 million the U.S. women received for winning last year's women's World Cup (the U.S. men, who did not qualify for the 2018 World Cup, received $9 million for reaching the knockout rounds of the 2014 World Cup).
"While USSF has been a leading voice narrowing the gap and will continue to do so," the defense brief stated, "Any differences in compensation that result from such considerations are not actionable."
Plaintiffs contend that FIFA awards prize money to the federation rather than players.
Thus the latest round of filings offered both a new tone but familiar arguments from both sides, minus the most objectionable points made by the defense a week ago. It remains to be seen if that new tone and a new figure leading the federation make a settlement any more likely.
"As it relates to the lawsuit filed by the women, I offer the perspective of a former player," Parlow Cone said. "I know how important it is for both the Federation and the players to move beyond this and keep working together on what unites us. We only have one Federation and one senior Women's National Team. We have to work together and move forward in a positive manner toward what I know are mutual goals, growing the game and winning.
"We are still hopeful we can find a positive resolution for both sides."
The trial is currently scheduled to begin May 5 in California, with no current delays relating to the COVID-19 pandemic.