How US Women’s Soccer Scored Equal Pay, from The Closer

Everyone's Scott here. Today, you're going to hear something special. It's a preview of the closer podcast from Project Brazen. The closer tells inside stories about the way businesses really work. Landmark deals can alter the course of the economy and transform how we live. The closer asks, who made these deals and why? These are the stories about the way business really works. The drama, the intrigue, high stakes, big personalities. In this episode, you're going to hear about the US Women's National Soccer Team, which is among the most decorated teams in the game, but until recently, was paid a fraction of what the men took home. When the players decided to take up the fight for equal pay, they turned to sports attorney Jeffrey Kessler, who built a career out of representing some of the most high profile athletes in labor disputes and professional leagues. He takes you inside the team's strategy and reveals how they got the deal done. Here comes the preview. If you want to find more episodes at the closer, you can get it wherever you download your podcasts. In all of Women's Soccer, in all of US Soccer, one team dominates. The United States of America are the 2015 World Cup winners. For the fourth time, the United States of America are crowned champions of the world, and for the very first time, they've done it on European soil. The most world cup titles, the most Olympic gold medals, the most number one in the world rankings. And today, perhaps the best known champions of a fight off the field, equal pay. It's a chance now linked forever to the 2019 US Women's Soccer Team. What you're seeing is the women saying, listen, we are your most valuable product and you are not treating us as such. Welcome back to season two of The Closer, a show that covers the inside story of deals that change the world. On this episode, we're talking about the landmark soccer deal that's rewriting the rules of how professional athletes are paid at the highest level, how the winningness team and women's soccer fought for their worth as told by the lawyer who helped build their case. What I think was so appealing about this fight was if these women who were clearly the best in the world and who clearly outperformed the men's team, if they couldn't get equal pay, then who was going to get equal pay, right? So it really sort of highlighted that whole struggle. This is The Closer. I'm Amy Keane. Back in the late 1970s, a young Jeffrey Kessler started his law career at a big New York firm. It was called Wild Gotcha. And I went there to become an anti-trust lawyer. Anti-trust law. This might make you think of things like monopoly power, price fixing, cartels. It refers to the set of laws meant to maintain competition among businesses. The idea is that a competitive and efficient markets keeps prices down and quality up for the benefit of consumers. But matters of anti-trust law and professional sports in the late 70s. There were frankly very few such cases at that time. The business was very, very small economically. It didn't generate that much legal work. And very early in my career, I became involved in utilizing anti-trust law to try to create economic rights and freedoms for athletes. When Jeffrey joined Wild, the firm was in the midst of settling a landmark effort by NBA Hall of Famer Oscar Robertson to bring free agency to the league. Well, I think it's really revolutionizing a game of basketball for it's for being paid. They're absolutely. And for playing like players playing 15 to 20 years now. As professional sports became big business, commissioners of the establishment leagues like the NFL, the NHL and the MLB, they all concentrated power. And kind of like a cartel, these leagues control things that might otherwise be set by the market in other industries. Think of who owns which teams and the salary caps they set. This is where Jeffrey's anti-trust practice comes in. And really everything sort of developed from there. Additional sports clients looking for anti-trust help came to the firm. I became involved in those and it was sort of step by step that my career really developed with sort of two legs. One leg in traditional anti-trust work for big companies in a variety of industries, the other in professional sports. You might be familiar with some of his most high profile cases. He represented Tom Brady when the quarterback and other players challenged the 2011 NFL lockout. Then division one college athletes in their battle with the NCAA for greater compensation. And Tom Brady again in the deflate gate scandal. You know, I've had the good fortune of my career to work on some cases and matters that I think have made a difference in the lives of people. Fast forward to 2016. Jeffrey's co-chairman of another firm Winston and strong and he gets a call from the union representing the US women's national soccer team. They were very unhappy with the deals that they had had in the past. And they were looking to develop ways to better assert their rights and power to get what they would hope would be a fair compensation. Fair compensation from their employer the US soccer Federation. By this point the US women's national soccer team had already racked up just about every win and title they could. Some more than once. They dominated the competition on the field and players were emerging as celebrities in their own right. Alex Morgan, Kristen Press, Carly Lloyd, and then of course Megan Rapinoe. I think now that final game was the most watched game in US soccer history, both male and female. Yeah, and I think that that is just goes to show you how empowering this is. These were the women Jeffrey Kessler was getting ready to work with when the players union called them up. They were really interested in how they could change the economic course of their history not so much for themselves but for the future generation of women who would follow them. The players wanted their paychecks to reflect the value they brought to the field and that started with equal pay. During the bargaining we developed the analysis that showed that they weren't getting equal pay with the men's team. Even though they were better than the men's team in their performance they did the same job as the men's team and they had the same employer. One example of the pay disparity the women found was in their compensation for friendlies or the matches both the men's and women's team played each year beyond the big tournaments. For every friendly the women earned the equivalent of $3,600. If they won they get a bonus of $1,350. Let's talk about women's soccer players. They're the big stars in the states with all the money and the glory of the men well except for the money pots. The men on the other hand they got a bonus as much as nearly $18,000 depending on how their opponent was ranked and whether they tied or won the game and a minimum of $5,000 to play even if they lost $5,000. To be clear about one thing the men and the women were on two different contracts with US Soccer. Many of the women on the national team received a salary as well as some benefits like health insurance and parental leave. The men did not. But there was another big disparity in earning potential for men and women in professional soccer at the time. Most of the women's national team players earned most of their living either from their national team compensation or some of them had big sponsorships but their pro salaries on clubs were quite smaller in most cases. So much less that some players worked other jobs on top of playing soccer. Equal pay for men and women in the same or similar jobs is far from a novel issue and it's played out in the world of sports for years. She's carrying a banner for the women. You like women. A lot of people said you don't like women. This is really more than just. I like a real good in the bedroom, the kitchen and when they bring the slippers in the pipe. Nearly 50 years ago, tennis star Billie Jean King challenged Bobby Riggs to an exhibition after he claimed that women don't play as well as men. I really think the best way to handle the women is to keep them pregnant and this way they don't worry about getting out in the men's world and competing for jobs and trying to get equal money and all that belonging. She famously won in three sets. Sometimes people say to me thanks for what you did for women's tennis. I smile and I say thank you but they would never say that to a male tennis player. They would say thank you for what you did for tennis. The law was settled even earlier than tennis's battle of the sexes. In 1963, the Equal Pay Act amended the Fair Labor Standards Act and it was meant to protect against wage discrimination on the basis of sex and then there's title seven of the Civil Rights Act of 1964. It prohibits employment discrimination based on things like religion, race and sex. So we made it a point. We the women players and their union made it a point to make Equal Pay a fundamental part of their bargaining demands because it's legally required. And during the course of the bargaining, the USS F said no. They said we're not giving you Equal Pay. So Jeffrey the players and the union decided it's time to open up another legal front. And the front we opened up was to file a complaint for five of the women for Equal Pay. Five of the most high profile players announced they are filing an Equal Pay complaint against Carly Lloyd, Hope Solo, Alex Morgan, Becky Sauerbrunn and Megan Rapinoe. These players were taking their argument to the Equal Employment Opportunity Commission, the EEOC, which is the government agency that you have to first go to before you can assert an Equal Pay claim. It's a gatekeeper if you will and they do an investigation. Remember that the players are in the midst of collective bargaining with U.S. soccer on a contract. Then they ratchet things up a notch by filing this complaint. In the complaint, they outlined paid disparities in three of the four types of compensation from the Federation. First, the friendlies, those non-tournament games where men earned higher base and bonus pay. Second, something called other compensation, like sponsorship appearances and per diem to cover meals while on the road. They said men were paid more for both. Third, the World Cup. The most prestigious tournament in soccer, something the U.S. men's team had never won. And according to the complaint, the men earned $9 million for losing. This was in a relatively early round in 2014. But for the women who won the tournament in 2015, a total of just $2 million. The fourth pay category was for attending the Olympics. This was the one situation where U.S. soccer paid both the men's and women's teams equally. Now, the thing to understand about alleging discrimination in the workplace is that sometimes, according to the law, at least, difference in pay is considered justified. Maybe the job isn't actually the same. Maybe one person did more work than another, or one job had different requirements than the other. But if the only difference is gender, if it's based on gender, it's not justified. And this was the claim, Jeffrey, and the five women named in the complaint we're making. That the players on the men's and women's national soccer teams did the same job, but that the women were paid less. Never mind the fact that they had a better record than the men's team, and had drawn the highest U.S. TV ratings for a soccer match in that 2015 World Cup final. Here's Hope Solo in an interview at the time. We continue to be told we should be grateful just to have the opportunity to play professional soccer. And in this day and age, it's about equality. It's about equal rights. It's about equal pay. When the complaint came out, U.S. soccer pushed back on some of the claims. One official called some of the players' figures inaccurate and misleading. The federation also noted the men's and women's teams had negotiated two different sets of contracts. And they also tried to blame FIFA, which is the world body of soccer. This is for the world cup bonuses. They said that, well, FIFA discriminates, which it does, and gave much bigger bonuses to the federation's and the men's tournament than the women's tournament. So they said, well, that's not our fault. It was correct that FIFA was the body that paid bigger bonuses in the men's tournaments than it did in the women's. But the problem with that argument is that FIFA doesn't pay any money to the athletes. FIFA pays the federation's and the federation's like U.S. soccer are the ones who pay the athletes. Here's Carly Lloyd. We've proven our worth over the years, just coming off of a world cup win and the pay disparity between the men and women is just too large and we want to continue to fight. The players were still in the midst of collective bargaining with U.S. soccer. And at this point, getting equal pay with the men's team just wasn't on the table. As Jeffrey tells it, the federation said, even take the best offer we're making now or we're going to shut down the sport. They know employers have the right on the labor laws when you get to the end of an agreement. There's no deal. They can engage in what's called the lockout, shut down the sport. So under that choice, which is not much of a choice, the women decided it was better to take the best deal that was available, which was not an equal pay deal and preserve their legal rights because they were going to continue the equal pay fight in the courts having not been able to achieve it at the collective bargaining table. An elite team of soccer stars kicking off a new fight for equality. The U.S. women's soccer team is taking charge in a major fight off the field, suing for fair pay. This just three. Fest forward a couple years and the team raises the stakes once again. They move on from their complaint with the EEOC to a full on lawsuit. In March 2019, with the green light from the commission, the women's team sues U.S. soccer for institutionalized gender discrimination. The players seek about $67 million in damages and they make it a class action suit, including players from rosters a few years back. That ratcheted things up quite a bit, not just because we edited all the players in a class action and we're going forward in court for a day of reckoning, but also because it allowed us to put together a major public strategy to rally the world around these women in the cause of equal pay. The filing brought on International Women's Day comes three months before the U.S. women tried to defend their World Cup crown. And then in June, the team heads to Paris. Spain works so, so hard, but it is the defending champions who march up. That is it. U.S. advances the French are up. The minutes have been played and the United States are into the 2019 FIFA Women's World Cup final, their third World Cup final in succession. The women went to the World Cup that year in Paris and they won the World Cup. The United States of America are crowned champions of the United States. It becomes the first team in fact to win three women's World Cup titles in the highest scoring final in tournament. The women of the U.S. soccer team are World Champions again, playing in its third straight final. Team USA beat the Netherlands too new in Leo. There's just something about this group that said nothing will ever bring us apart, and I think that that meant that no team will ever be this. Basically, the entire stadium spent that game that was globally televised, chanting equal pay, equal pay, equal pay. It became a global issue. All the teams around the world supported the women. Many sponsors, prominent sponsors of U.S. soccer decided that this was an issue that appealed to their consumers that they wanted to get behind this cause of equal pay. And that compelling story was told. The women spent lots of time appearing on television shows. This was part of that coordinated public strategy to get fans to rally around the player's fight. For comment. Team co-captain Megan Rapinoe and Kristen Press, join us this morning. Ladies, good morning. Thank you for being here. Congratulations. We are so excited to have the rest of the grand prize team, fresh off their historic four World Cup win. Say it again. How many times? Four. That's what I'm talking about. And a celebrated two. Please welcome co-captains of the team, Alex Morgan and Megan Rapinoe. What I think was so appealing about this fight was if these women who were clearly the best in the world and who clearly outperformed the men's team, if they couldn't get equal pay, then who is going to get equal pay, right? So it really sort of highlighted that whole struggle. It's very frustrating for us on the team, you know, for women everywhere. I'm sure to be feeling like they aren't getting paid what they should be. After that big win in France, the women are given a hero's welcome in New York City. The streets of Laura Manhattan are filled with fans and on a stage the team's assembled. Build a blasio, the mayor at the time, he gives the women the keys to the city. Later on in the ceremony, we will honor each player and each coach with the highest honor New York City gives the key to the city and every one of them has earned it. Then Carlos Cordero, the president of US Soccer, gets up to speak. But before he even starts, the crowd erupts in a chant. Cordero acknowledges the team's victory. He talks about the investment US Soccer is making in the game for young girls and for women. And then he talks about the proverbial elephant in the room. In recent months, you have raised your voices for equality. Today on behalf of all of us at US Soccer, I want to say, we hear you, we believe in you, and we're committed to doing right by you. One, the crowd was 100% aware of this issue in support of, but two, Megan Rapino, who was one of the leaders of the women on this, spoke and very diplomatically, but very forcefully, made it clear that from the women's perspective, the US federation needed to put up a shut up. I'm going to stick my neck out there a little bit. I'm going to endorse Carlos. I think he's with us. I think he's on the right side of things. I think he's going to make things right. You could talk about supporting the women and the women's game and that's great. We need equal pay. We look forward to holding those feet to the fire. And so that issue was joined right on that public stage, all of these women, whether it was Pino or Alex Morgan or Kristen Press, so many of these women, they had no hesitance to speak truth to the power. That's what they were entitled to, what all women were entitled to. After the break, the fight for equal pay gets ugly. We'll be right back. The US Women's National Soccer team comes home from the 2019 World Cup Victorious. With another trophy in hand, the players have the support of their fans and sponsors. And there's a sense that the US Soccer Federation might be willing to consider the women's position. We will pay. We will pay. But by the beginning of the next year, 2020, this cordial public dialogue between the players and the Federation takes a turn. And it happens in a court filing. This is a really fascinating, remarkable story here. New court documents reveal why US Soccer says women should not get paid as much as men. In an apparent attempt to dispute any gender discrimination, US Soccer's legal team made a series of claims about supposed differences between the men's and women's teams. It's had the men's team players had more responsibility, and that the men's team required a higher level of skill than the women's team. It even went as far as saying their claim wasn't a sexist stereotype, but rather quote, indisputable science, distinguishing physical ability between the men and the women. Well, needless to say, the world reacted. You're asking me a question about a federation in a 2,600 page legal filing saying that biological science is the reason why men should make more money than the women. You've got to be kidding me. Sponsors reacted, threatened to kill their sponsorships with them. People around the world commentators reacted. There was this gigantic public outcry that you are telling these women, they're not good enough for equal pay, the best women in the world. Another shake up at the top of US Soccer, any surprise that this announcement was made? No, none whatsoever, Zubin, especially when you've got Volkswagen, Coke, and other sponsorships coming out immediately going right after US Soccer in the federation in Carlos Codero. Carlos Codero, the guy who stood up and celebrated the women's team after the World Cup victory, he's in charge at this point. He'd have to take the fall. The president of the US Soccer federation has stepped down from his position. He claimed he didn't know what was going to be in the papers, but that was sort of beside the point. This wasn't made up in their papers. This came from their testimony. I can't believe US Soccer actually put these on papers. That's not made up in the papers. We used it affirmatively to try to show this was their discriminatory intent. They used it offensively to argue, well, it's not discrimination because the games are so different, because women are so different from men, the games are therefore different, so you can't compare them. That was their argument. US Soccer fires their outside counsel, hires different lawyers, and installs a new face at the top of the federation, Cindy Parlo Cone, who had been vice president. She's the first woman to be president in the organization's history, and she's a celebrated former member of the US women's national team, and she quickly disavows the arguments in that filing. So with new leadership at US Soccer, the women's team gets ready for their trial set for May. Now the point of a trial is to look at evidence and listen to testimony to figure out what's true. But presenting evidence in testimony is time consuming and expensive, so each party has the option to file for something called summary judgment. This is where one party says this evidence is so conclusive that even if you think about it from the opposing side's point of view, our argument is in fact clearly what happened, so there's no need for a trial. The women's team did so, arguing that the pay differences between the men and the women had to be a result of nothing other than gender discrimination. Meanwhile, US Soccer did as well, and they argued that not only was there no gender discrimination, the women weren't necessarily paid less. This was the summary judgment filing that got US Soccer in so much trouble with fans and sponsors just a bit earlier. But the ruling on this summary judgment ends up bringing another setback for the women's team. A federal judge has dismissed the unequal pay claim by the members of the US women's national soccer team. What the judge ruled, and of you, incredibly, was that we couldn't show paid discrimination. The judge overseeing the case takes issue with the way the pay discrepancy is presented in the lawsuit. He ruled that in the period covered by the suit, the women actually earned more than the men. Here's how Jeffrey sums up the judge's argument. The women won so many more games than the men, and played in more games than the men, that the total compensation in a year was actually higher than the men. So therefore there was no paid discrimination other than that. So in terms of total compensation, yes, the women's team did earn more than the men during the period of time covered by the lawsuit. But Jeffrey and the women's team had been arguing that the rate of compensation was not the same. Somehow the judge looked and said, no, the man doesn't work, so you don't have paid discrimination. So we were shocked, we were devastated. The team wanted to appeal, but before all of this happened, COVID happened. The world shut down, and we were trying to get our trial, and we kept asking the judge, what are we going to do, because he hadn't ruled on these motions, and the trial was set for May, and the judge wouldn't adjourn the trial. And so we were still thinking we have to prepare, so we were in a mode saying, we have to get ready to try this case, even though we're all remote at the moment, and then this decision comes down that really did shock us. The setbacks on the team's claim of institutional gender discrimination at US soccer. The lawsuit also included a claim against the working conditions, which the two sides end up settling out of court. Then it's time to appeal that summary judgment. And this time around, they have even more support for their argument on the math that the judge had dismissed, and it comes in the form of amicus briefs from academics and equal pay experts, and from the US men's national team. And I think USSF correctly looked at this and said, we're not likely to win this appeal, we're likely to be headed back to trial, the world is against us. You know, maybe we should do something to try to settle this case. Settlement talks go back and forth for a while. This was still during COVID period, so most of the talks were by Zoom or, you know, our phone calls and it was back and forth, the women themselves conducted some of the talks, the lawyers conducted some of these talks, it was sort of a, you know, back and forth. Finally, they came to the posture, yes, we will agree to equal pay. Equal pay on friendlies for appearances and crucially for the World Cup prize money. The US soccer would go back to the table with both the men's and women's teams to negotiate new collective bargaining agreements to reset these terms. It will be equal pay, and we define what that would mean, and basically what it would mean that if the women got the same results in the World Cup as the men got, they would get the same amount of money. When did you get the sense that you and the players were getting close to an agreeable deal with US soccer? Once they said that they would agree to collect the bargaining agreement that would have equal pay for the World Cup, we felt that was the final breakthrough because that had always been this sticking issue. And where in this settlement process did that come through? Late. Very, very late. That really was the last sticking point. It's what we finally got to again about a week before the oral argument was scheduled. So with the loose contours of a deal agreed, now it's time for Jeffrey, the players, US soccer, and all the legal and PR folks to iron out the details. First, there's the damages. They agree on $22 million to be divided up among players in the suit. This was based on a special formula they came up with. And another $2 million that US soccer would put into a fund for player development. All of these negotiations taking place from Jeffrey's home office. I remember doing one of the calls by a granddaughter Olivia who was seven at the time came in and like, in through after the call and like, sound like what's going on? And so I told Olivia, I said, you know, I work for the women's soccer players. They were all this at high Olivia. They all talk guitar. I said, we're fighting because these women who are the best soccer players in the world don't get paid as much as the men. What do you think about that? And Olivia said, I don't even have to think about that for a second. That is wrong. And we said, yes, you are right. And that's why we're having this fight. And of course, all the women were very encouraged. The final step in this landmark deal for equal pay was to go back to the court. Class action settlements have to be approved by a judge. And we didn't actually get this approved until December of 2022. In the meantime, the US women's team and the US men's team reached new collective bargaining agreements with the Federation. So equal pay was achieved. And fittingly, the new collective bargaining agreement was signed after a woman's friendly match in Washington, DC. And there was a fantastic signing ceremony of the collective bargaining agreement that I was able to go witness to attend in Washington at a friendly game that was played. Thanks, Charles. Wow. We got here. We're finally here. What a special day today is. And thank you all for staying. And everyone came out. There was a whole big deal that equal pay was being provided in the collective bargaining agreement. But we didn't. We are here today to sign the contract. And we have finally achieved equal pay for our men's and our women's national teams. Was there anything surprising or anything that you learned in the process of this case, this ongoing case that, I don't know, that just the taught you something, but your line of work? I think what this case taught me more that I never had been as effective in was the combining of the legal fight with the public communications fight. And how important that was to the overall effort. And in fact, I have no doubt that it was the combination of the public fight, all the things the women did to go out there and develop support with sponsors and others, and the legal threat. It needed both to get over this very difficult finish line. And it also taught me something I learned a long time ago is that when you fall down to get right back up, that's where all these women were when we lost that summary judgment. And we were all determined, we're just going to fight harder and we're going to get there. How do you reflect on this deal today? So, I'm obviously proud and humbled to be part of this. You know, I've had the good fortune of my career to work on some cases and matters that I think have made a difference in the lives of people. That's what, you know, what turns me on as a lawyer is I love the advocacy of being a lawyer and being in court and making arguments, but the fact that I've been able to do this for clawing into also made a difference on issues that are important to me. This was one of them. And so I can look back and I feel like what these women were able to achieve was to not just establish equal pay for themselves, but to make an important contribution to the equal pay fight for women in general and the consciousness about that fight. And it seems that consciousness is already spreading. The Canadian Women's National Soccer team recently struck a deal with its federation for equal pay and other national teams are taking action against their working conditions. You know, things are moving the right way on this issue, although no one's naive not to think about their own a lot of struggles. Still there, so to the extent that I was able to play a helpful role in this and be part of this, I am very pleased to be able to play that role or looking back on it. And that's the end of our show, but there's much more for my conversation with Jeffrey Kessler. Just as our interview was wrapping up, I asked him if he had any negotiating advice for the rest of us. And he did. It's advice that I think applies as much to a multi-billion dollar merger as it could to getting your next raise. You're the rest of what he had to say on Breezen Plus on Apple Podcasts. The Closer is a production of Project Breezen in partnership with PRX. Our show is produced by Isabelle Kirby McGowan and Ben Walsh. Marianne Hell Gonzalez is our project manager, Olivia Mead is our researcher and Lucy Woods is head of research. Gold Arthur is our show runner and Bradley Hope and Tom Wright are executive producers. Megan Dean is programming manager and Ryan Ho is design lead. Our marketing consultant is Maggie Taylor and Nora Abdel Latif is our podcast strategist. I'm Amy Keane. Thanks for listening.