To get “equal pay”, would the US women’s soccer team give up its salaries?
It’s a strange question, but it illustrates the complexity of comparing deals that were negotiated at different times with different goals. The US women’s soccer team, for better or for worse, consists mostly of salaried employees. The men’s team, whose players usually draw the bulk of their income from professional clubs, gets mostly bonus money.
So in this high-stakes game of poker, “equal pay for equal work” is a bluff that doesn’t always stand up to closer scrutiny in the literal sense. “Equal work” isn’t necessarily accurate if you acknowledge that the US men face greater competition to make the roster and greater competition to win games, and they draw higher ratings, higher attendance and more revenue over a four-year cycle. (The fiscal year 2017 projections trumpeted by the players’ side includes the Olympics and a full 10-game Victory Tour, which is predicated on a US gold medal.)
And “equal pay,” taken in the literal sense, could be a gamble as well. Does that mean women would be willing to give up steady paychecks for a stagnant player pool in order to get bigger bonuses for wins? Those bonuses could be impossible to even out – in the unlikely event the men win the World Cup, they would share a $9.375m bonus compared with the women’s $75,000 per player (less than $2m for the team). The Fifa payout to the 2015 women’s winner was $2m while the men’s winner in 2014 got $35m.
So a $9.5m bonus for the women, who are much more likely to claim such bonuses, would leave US Soccer $7.5m in the hole. Is that what the women’s players want?
The lawyers for the women’s side, Jeffrey Kessler and players’ union general counsel Rich Nichols, aren’t saying. They’ve declined to share the players’ collective bargaining demands.
“We are not going to comment on bargaining except to say that the women are demanding and proposing equal pay for equal work, which is what the law requires,” Kessler told the Guardian.
So we don’t know everything on the table. But we know the players and their lawyers are taking a shrewd gamble that may force US Soccer to show all its cards. That could demonstrate several ways in which the women deserve better treatment, not just better pay.
Filing an action with the Equal Employment Opportunity Commission by itself will not get the women’s team all it wants. That action addresses only compensation, not other issues such as travel and turf, and Nichols agrees it’s not likely to be resolved while the clock ticks toward the 2016 Olympics.
The well-publicized PR blitz around that filing, though, has stirred up a media frenzy. Some reports have made comparisons between the men’s and women’s teams, but have picked out only selected figures such as Women’s World Cup final ratings or even saying “the men” failed to make the Olympics, not clarifying that the team in question wasn’t the full national team.
Yet the scrutiny also has kicked up several interesting facts and questions:
1. Why are existing ‘equal pay’ clauses not being enforced?
ESPN’s Julie Foudy, a former women’s national team captain, dug up such a clause from the 2005 collective bargaining agreement:
If in any calendar year, the ratio of aggregate compensation of women’s national team players to the aggregate revenue from all women’s national team games (including all games in US Soccer promoted women’s tournaments) is less than the ratio of the aggregate compensation of the men’s national team players compensation to the aggregate revenue from all men’s national team games (including all games in US Soccer promoted men’s tournaments), then US Soccer will make a lump sum payment to the women’s national team player pool to make the ratios equal.
Foudy brought that clause to the attention of the players and their lawyers. They were not aware. US Soccer confirmed that the clause is still valid.
The agreement doesn’t specify how “compensation” and “revenue” are calculated. In some years, it wouldn’t help the women make a case for greater pay. In a Women’s World Cup or Olympic year, it surely would.
A related, much simpler clause: the men and women currently get different per diem rates for food and expenses when they’re with their national teams, according to women’s team lawyers. The last agreement says that shouldn’t be the case: “These per diem payments shall be the greater of (a) the per diem amount paid by the federation to players on the men’s national team at that time or (b) the following amounts.”
Another difference – men receive $1.50 per ticket sold to home friendlies, while women get only $1.20. The women’s Memorandum of Understanding (from 2013, see below) indicates that $1.20 matched what the men received at the time, but the men have since negotiated a new deal.
2. How much do the US women benefit or lose from the bundling of TV rights for their games, men’s national team games and Major League Soccer games through Soccer United Marketing, the entity MLS created to save itself from extinction in 2002?
“What numbers [US Soccer] does release are hard to get a real grip on,” women’s player Megan Rapinoe told Foudy. “Where is the money, where is it going and what does it look like – SUM included? Let’s find out.”
3. How will the women’s demands affect the fledgling National Women’s Soccer League, which provides employment beyond the handful of players in the national team mix?
The NWSL has benefited from closer ties with MLS clubs. The Portland Thorns, the league’s runaway attendance leaders, are affiliated with the MLS Portland Timbers. Houston also has a combined MLS/NWSL operation, and NWSL expansion team Orlando is gunning for the league’s attendance record on the back of a successful launch in MLS. Those ties also ensure that a couple of NWSL owners have a foot in the door at SUM.
And US Soccer directly subsidizes the league, paying office staff and the salaries of its national-team players. (Canada’s federation also picks up the salaries for some of its players allocated to NWSL teams.) NWSL clubs are only responsible for their local operating costs and the pay of non-national team players, which range from a modest $39,700 to a paltry $7,200 for a six-month season. In fact, the Memorandum of Understanding explicitly states: “The parties will work in good faith … so that no non-WNT player receives compensation (salary plus housing) greater than a WNT player.”
The EEOC action does not address the NWSL. The players’ press release does not mention the NWSL, nor does an attachment detailing the players’ discrimination claim or an exhibit comparing men’s and women’s compensation. (That exhibit also does not mention the players’ base salaries.)
But again, the EEOC action is only part of the larger battle here.
“I don’t think (the EEOC action) impacts the NWSL at all,” Nichols said. “If it does, it’ll be favorable. Let’s be clear – the players on the women’s national team are fully supportive of the players in the NWSL.”
4. Why has it taken so long to get a new deal?
The last full-fledged CBA was negotiated at a low point for US women’s soccer. Stars like Foudy, Mia Hamm and Brandi Chastain were out of the picture after claiming one last Olympic gold in 2004. The first pro league, the WUSA, had collapsed. That deal ran through 2012 and was extended under a “memorandum of understanding” that is now being disputed in a separate court action in which US Soccer is seeking to have the court validate it as a deal that still binds players to a no-strike clause.
The memorandum, Exhibit D in US Soccer’s lawsuit, was written to account for the launch of the NWSL. “There will be one contract for WNT players covering both the WNT and the NWSL so that WNT players will not need to enter into a contract with the NWSL,” the MOU states.
The deal carries forward salaries: $72,000 for tier I players (minimum number: 18), then $51,000 and $36,000 for tiers II and III. It also includes a “salary if there is no league” clause, which boosts player salaries to $101,000, $72,000 and $43,000. That doesn’t mean players make more money without a league – a separate section of the deal lists salaries and housing allowances for NWSL play, ranging from $46,000 to $56,000 in 2016.
In late 2014, the players replaced longtime lawyer John Langel with Nichols, who has represented high-profile female athletes such as Marion Jones and was the general counsel for the American Basketball League, a late-90s women’s basketball league that paid higher wages than the WNBA. A year later, Nichols explicitly challenged the nature of the MOU – the USSF lawsuit has an email of 6 January 2016, in which Nichols says, “it is the position of the (players) that the CBA no longer exists, and further, that the MOU is terminable at will.”
To escalate the situation even further, the women have called in Jeffrey Kessler, who has taken on the NFL in everything from antitrust cases to Deflategate, and has women’s sports experience getting a better deal for WTA tennis players and helping South African runner Caster Semenya return to competition after her gender was called into question.
In soccer, though, Kessler suffered a setback when he represented Major League Soccer players in an antitrust action against the league. The ill-fated suit dragged on for years before the league prevailed. Kessler in particular struggled in his examination of former MLS executive Sunil Gulati, who happens to be the president of the US Soccer Federation today, harping on the names of England’s top two divisions – which player witnesses had implied were both “first division” leagues despite promotion and relegation between them.
“Jeff Kessler is the best in the business,” Nichols said. “Period, end of story. And he’s been the best for more than 20 years. As with any true champion, you lose a few battles along the way, but you win the war. He always wins the war.”
Kessler plays down such history and offers some reassurance for men’s soccer fans and players.
“My work for the MLS players’ union was 16 years ago,” Kessler said. “I am proud of the effort we made on behalf of those players, even though we did not achieve the results we all hoped for. I have nothing but the greatest respect for the men’s players in the United States and my work for the women today has nothing to do with that prior work, except as a reflection of my dedication to trying to help players in general.”
5. Will we see drastic changes in the US women’s player pool when all this is done?
The women’s CBA really reads more like a club team’s contract than a national team deal. It guarantees salaries for 20-24 players. It even limited the national team’s capacity to bring in “Floater players” who were not on salary. Players who lost their places in the salaried tiers of players were guaranteed severance pay.
Such stability is good for a handful of players but bad for the talent pool. A typical national team tries new players all the time. The US women generally field the same players, game after game, with the players and the federation grimly meeting their contractual obligations.
The stagnant player pool nearly came back to haunt the US women in the 2015 World Cup. The team drew with Sweden and labored past a couple of overmatched opponents before switching players and tactics for the last two games – a breathtaking win over favorite Germany and a rout of previous world champion Japan.
How will this player pool look in 2017? That brings us back to whether players are willing to give up steady salaries. Will they accept greater risk and more competition for places on the national team?
That may depend on whether this charge by the women’s team attracts not just sympathy but also sponsorship dollars. While the NWSL struggles to attract big money, poorly attended European women’s teams are able to pay players through cooperation with men’s clubs and sponsors.
So if this wave of publicity entices sponsors to step forward to build the NWSL so that it’s paying steady salaries, the game of poker becomes easier to finish. Split the pot, shake hands and play soccer.
