Lose the battle, win the war? Why USWNT's equal pay defeat isn't a total catastrophe

For all intents and purposes, the U.S. women's national team lawsuit died on Friday night as Judge Gary Klausner ripped the heart of the team’s argument out – the contention that U.S. Soccer violated the Equal Pay Act by paying them less than the men's national team.

The Los Angeles-based federal judge did not issue his ruling based on how epically sexist U.S. Soccer's previous arguments were. He did not make his judgement based on the court of public opinion. He looked at the facts of the case and, in the most legalistic manner possible, made a determination.

That is why the USWNT lost, seeing the pillars of their gender discrimination case against U.S. Soccer dismantled.

It is not all over, as Klausner did allow part of the team’s claim to advance toward a still-scheduled June 16 trial, but insufficient travel accommodations and team staffing were far from the crux of the USWNT’s argument.

From a legal standpoint, the players' lawyers could not overcome the fact that players signed on to the collective bargaining agreement (CBA) they were essentially looking to rip up by bringing the lawsuit. Judges are often loath to issue rulings that go against established CBAs, fearing they could render future negotiations between labor and management irrelevant. 

The court was also compelled by U.S. Soccer’s calculations showing that the USWNT was actually paid more than the USMNT during the period covering the lawsuit, which runs from 2015 to 2019.

In attempting to counter U.S. Soccer’s contention, the USWNT pointed out they would have made even more had they been under the men’s CBA, an argument that UCLA law professor Steven Bank called “problematic” and involved “cherry-picking the most favorable argument.”

Klausner said that in rejecting the same "pay-to-play structure" as the MNT, the WNT "was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players".

There are compelling points on the WNT’s side, namely they agreed to their CBA to provide a level of stability (guaranteed salary, healthcare and parental leave among other things) the men didn’t need due to getting those benefits from their club sides.

There is also the embarrassing fact that had the MNT qualified for the 2018 World Cup, they would have received bonuses that would have seen them earn more than the WNT did over the relevant period. Neither of those arguments, unfortunately, made a difference in the court of law.

It is worth asking, though, if a legal victory was really the most important battle for the U.S. players to win in the long-term.

Sure, it would have been a triumphant moment to see Megan Rapinoe, Alex Morgan and others skipping out of the courtroom holding an oversized check, having proven once and for all that their employer was motivated by gender bias, but aside from getting paid, this lawsuit was about visibility more than anything. 

Visibility for themselves and for other chronically underpaid women’s teams. Visibility for the lack of opportunities girls and women have in sports compared to boys and men.

Visibility for what U.S. Soccer says it stands for: to "promote and govern soccer in the U.S. in order to make it the pre-eminent sport recognized for excellence in participation, spectator appeal, international competitions, and gender equality".

Make no mistake, despite the legal defeat the WNT is going to get paid, both in a now-likely settlement before the scheduled trial and in the team’s new CBA next year.

They may have suffered a setback but, when viewing this affair as a whole, the WNT could argue it came out on top. U.S. Soccer, despite saving some money from the legal ruling, most certainly knows it did not emerge victorious from this.

Its sexist arguments over the so-called "indisputable science" of the men's team being faster and stronger than the women's team and so deserving of more money, which were later withdrawn, created a rift between the federation and everyone in women’s soccer that will take years to heal.

U.S. Soccer caused sponsors to revolt. It saw the resignation of the federation president and hastened the installation of new leadership. Now there is an opportunity for both sides to move on. Here’s hoping that they do eventually, because when a federation is in bitter conflict with its most successful and visible employees, there can be no winners.