Jul 10, 2019; New York, NY, USA; United States women's soccer team forward Megan Rapinoe (15) celebrates with teammates at City Hall after the ticker-tape parade for the United States women's national soccer team down the canyon of heroes in New York City. Mandatory Credit: Brad Penner-USA TODAY Sports

(Reuters) - If things had gone differently, Mayer Brown appellate co-head Nicole Saharsky would have been at a lectern on Monday in Courtroom 1 at the 9th U.S. Circuit Court of Appeals in Pasadena, California, arguing on behalf of the U.S. women’s soccer players in their equal pay lawsuit.

Her would-be opponents on behalf of the U.S. Soccer Federation: A team of women litigators from Latham & Watkins, including appellate partner Melissa Sherry and Jamie Wine.

But in a result that caught many by surprise, the headline-grabbing case settled for $24 million on Feb. 22.

In the spectator sport that is litigation, the fan in me is a bit disappointed. What happened? How was what promised to be an epic matchup resolved before the coin toss?

I had the chance to speak with both Saharsky and Wine about the settlement and why Saharsky believes it will set “a pretty significant precedent” in the ongoing struggle for women to achieve equal pay for equal work.

Or as Saharsky’s co-counsel Jeffrey Kessler, the co-chairman of Winston & Strawn who led the trial court team told me, his clients are “an inspirational example for working women everywhere that equal pay can and must be achieved.”

Underlying the dispute was a basic legal question about what equal pay means under the law. Because during the time period at issue in the case – 2015 to 2019 – the members of the women’s national team actually earned slightly more money than the men.

According to calculations by U.S. District Judge R. Gary Klausner in the Central District of California, who in 2020 dismissed the equal pay claims on summary judgment, the U.S. Women’s National Team was paid an average of $220,747 per game, while the U.S. National Men’s Team was paid an average of $212,639 per game.

So how could the women claim pay discrimination?

Saharsky in her appellate brief stressed that the judge did not account for performance, “specifically, that the women had to be the best in the world to make about the same amount per game as the much less successful men.”

It’s a dynamic that strikes me as pervasive across many workplaces – that women have to work harder and perform better just to be paid the same as lackluster men – but here, it was quantifiable.

Between 2015 and 2019, the U.S. men’s team ranked between 22nd and 32nd in the world, winning just 46 of 87 games. They didn’t even qualify for the 2018 World Cup

The No. 1-ranked women played more games – 111 – during the same time period and won 92 of them, taking home the 2015 and 2019 World Cups.

To lose the case on summary judgment was “pretty surprising,” said Saharsky, who came on board pro bono as appellate counsel after the district court loss, beating out lawyers from five other firms who also tried out for the role.

“It was an important case,” she said of her decision to volunteer her time. “The women’s team is the best in the world, and they hadn’t been treated fairly.” Mayer Brown partners Michael Scodro and Marcia Goodman and associates Minh Nguyen-Dang and Carmen Longoria-Green also worked pro bono on the case.

Before the appeal could proceed, the parties needed to settle the women’s remaining claims alleging unequal working conditions.

While those negotiations proceeded, Saharsky and her team made use of the roughly 12-month delay by rounding up amicus support. “The amicus effort was a huge one,” she said. “We wanted the message to be very clear” that the women had major allies.

These included the U.S. Men’s National Team, which in a hard-hitting brief by lawyers from Weil, Gotshal & Manges, accused U.S. Soccer of “treating the women as an afterthought, discriminating against them through inferior wages and working conditions.”

The U.S. Equal Opportunity Commission weighed in as well, arguing that the lower court judge erred in dismissing the women’s equal pay claims, as did 15 former EEOC and Department of Labor officials.

The AFL-CIO also submitted a brief, as did a group of 65 organizations committed to advancing gender equality led by The National Women’s Law Center, the Women’s Sports Foundation, the Institute for Constitutional Advocacy and Protection and the Independent Women’s Law Center.

U.S. Soccer had no amicus support. I asked Wine, who until the end of 2019, was global chair of Latham's litigation and trial department, what she made of the lopsided backing. She shrugged it off. “It didn’t surprise us,” she said. The women had a much easier, almost slogan-like argument in the court of public opinion, she said. “Who’s not in favor of equal pay?”

But she and her team argued the reality was more nuanced, and that the women in negotiating their collective bargaining agreement rejected the men’s high-risk/high-reward “pay-to-play” compensation model and instead opted for a more stable compensation package that included guaranteed salaries and other benefits the men don’t receive.

Wine also said that 90% of the bonus pay differential was due to the huge disparity in World Cup prize money awarded by FIFA – which U.S. Soccer cannot control. For example, the 2018 Men’s World Cup winner got $38 million, but the 2019 Women’s World Cup winner received only $4 million.

Both Wine and Saharsky viewed the settlement as a win for their clients, allowing them to move forward together – not to mention putting to rest a public relations black eye for U.S. Soccer.

Wine noted that the players were initially seeking more than $66 million but settled for $24 million.

The settlement is also contingent on ratification of a new collective bargaining agreement for the women’s team, with the hope that it will include a deal with the men’s team to equalize World Cup prize money that comes in from FIFA.

As for Saharsky, she said her clients were thrilled with the results and relieved to have the lawsuit end.

“People who aren’t lawyers can’t believe how long litigation takes,” she said. “It really weighed on the players. It’s hard for anyone to sue their employer and keep working for them, especially when it’s your dream job representing the United States in world competitions.”

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Source: Reuters

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