About a year ago, the US Women’s National team filed a gender discrimination lawsuit against US Soccer asserting that its players had been underpaid as compared to the male players on the US Men’s National Team. Last week a US District Court judge in California threw the lawsuit out in a summary judgment. There are elements of that lawsuit that will continue through the courts – those parts dealing with inequities in terms of travel arrangements, training equipment and facilities, and medical staff.
While the cynic in me recognizes that the applicable slogan here of “Equal pay for equal work!” is not something that US society is ready to fully embrace, I am absolutely in favor of achieving that goal. Like just about everyone who read and heard about the filing of this lawsuit, I was “rooting for” the women’s team to win – – but expected an out of court settlement so that neither side would take the risk of losing big. Judge R. Gary Klausner has – at least for the moment – removed the “lose big aspect” of the case from the side of US Soccer. [I say “at least for the moment – because I will be shocked if the women’s team does not appeal the ruling to the Ninth Circuit Court of Appeals.]
Remember, I am not an attorney; what follows here is my understanding of the status quo as reported in the general press. As I understand it, a significant element of the basis for this summary judgment ruling is that there are fundamental differences in the pay structure between the men and women AND the pay structure for the women was collectively bargained for because the women did not want the pay model used for the men. So, it seems that Judge Klausner’s decision says in legalese something equivalent to, “You made the bed; now sleep in it.”
[Aside: Readers here know that I am a big fan of Sally Jenkins and agree with her perspectives on issues about 99% of the time. This is not one of those times; she believes that the ruling comes down in favor of male entitlement and I do not believe that is the case. Nonetheless, HERE IS A LINK to her column in the Washington Post on this subject.]
This ruling adds a layer to an area of legal confusion for me. I am not going to say that I think the ruling is wrong – that would be an outrageous position for me to take – but there is a hierarchical status here that I do not understand. Let me take a step back in order to explain:
- It seems to me that a Collective Bargaining Agreement between a business entity (say the NFL or MLB) and its employees (say the players’ union or the umpires/referees) transcends the boundaries set on Federal anti-trust legislation.
- I guess I can begin to see how that could be the case since at least part of the impetus for anti-trust legislation came from the labor movement that sought to earn the power of collective bargaining to favor the employees of those companies to be regulated by anti-trust measures.
- Maybe that sort of hierarchical structure leads to the legal equivalent of “You made the bed; now sleep in it.” Maybe …?
This case seems to me to be different in a fundamental way. In the case of anti-trust legislation residing below a negotiated CBA on the legal pecking order, it is the establishment of the laws governing CBAs that takes the higher rung on the ladder. The basis for this lawsuit is gender discrimination and it seems to me that the Equal Pay Act and the Civil Rights Act are the ones contending with CBAs for loftier legal status.
I guess it is OK to allow players – for example – to accept a Draft by the NFL in exchange for some other concession by the league. However, I do not see how the members of the Women’s National Team could have been construed to bargain away their gender in attaining the CBA that now exists.
I assume this case will continue to the point of an appeal and I continue to root for the women to win this case. I think Judge Klausner’s ruling diminishes the likelihood of a negotiated settlement out of court for this matter – but we can continue to hope.
Finally, this note from Dwight Perry in the Seattle Times:
“The Tokyo Olympics have been rescheduled for 2021 but will still be known as the 2020 Games, organizers say.
“’We couldn’t agree more,’ said 12 of the Big Ten’s 14 athletic directors.”
But don’t get me wrong, I love sports………