October 16, 2019
By Samantha Milano and Chuck Doran
The U.S. Women’s National Team (USWNT) sparked much debate leading up to their Women’s World Cup win in July 2019 given the unfair pay gap between the U.S. Men’s and Women’s national teams.
For the last four years, the legal battle over equal pay for the USWNT has plagued the U.S. soccer community. The legal and moral fight has resurfaced with the continued success of the USWNT as they went on to win the Women’s World Cup. The parties were referred to mediation with the hope that they would reach an agreement.
As mediators, we improve our mediation skills by studying successful and failed mediations. The disappointing mediation between USWNT and the U.S. Soccer Federation is an example of a mediation that provides us with a interesting learning opportunity. Before understanding why this mediation fell flat, it is important to revisit its context.
Five U.S. women’s players filed a discrimination complaint in 2019 with the Equal Employment Opportunity Commission (EEOC), according to CNBC. The complaint further ripened when sporting news cited that in early July, the “USWNT team filed a lawsuit against U.S. Soccer, seeking better pay for women, who reportedly earned 38 per cent of what their male counterparts make.”
If that’s not enough to make your jaw drop, a correlation between the USWNT ‘s pay rate and generated revenue shows that they bypassed their male counterparts. The U.S. Soccer financial statements were audited by The Wall Street Journal and found that during the years 2016 and 2018, following the U.S. women’s win in the 2015 Women’s World Cup, USWNT games generated $50.8 million in revenue while men’s soccer generated 2% less ($49.9 million).
Leading up to, and following the spectacular Women’s World Cup win, the USWNT won over the hearts and minds of their fans. The Washington Post cited fans chanting, “’Equal Pay! Equal Pay!’… in the sellout crowd of 57,900.” With the case in public eye, the mediation between the USWNT and the U.S. Soccer Federation gave many hope that an agreement would set a new pay standard for women in soccer.
News reports point to two factors that led to the breakdown of the talks – seeing the other side as the enemy vs. being a partner in resolution and not focusing on objective standards.
Roger Fisher, one of the authors of Getting To Yes, would describe the mediation process as an alternative to the parties hurling threats and insults at each other. Rather, he talked about mediation as an opportunity where both sides could commit early in the process to see the other side as a “partner in resolution.” Instead of thinking of the other side as an enemy to be defeated, both sides might consider sitting on the same side of the table (either figuratively or literally) and focus their energies on attacking the problem they both faced vs. each other.
The parties in this case did not follow this advice. According to the Washington Post,
“Neil Buethe, USSF spokesman, reiterated the Federation’s hope that mediation would produce an agreement…Unfortunately, instead of allowing mediation to proceed in a considerate manner, plaintiffs’ counsel took an aggressive and ultimately unproductive approach that follows months of presenting misleading information to the public in an effort to perpetuate confusion.”
Molly Levinson from the USWNT affirmed this tension with the following statement,
“We entered this week’s mediation with representatives of USSF full of hope. Today we must conclude these meetings sorely disappointed in the Federation’s determination to perpetuate fundamentally discriminatory workplace conditions and behavior…it is clear that USSF, including its Board of Directors and President Carlos Cordeiro, fully intend to continue to compensate women players less than men. They will not succeed. We want all of our fans, sponsors, peers around the world, and women everywhere to know we are undaunted and will eagerly look forward to a jury trial.”
In addition to this, CNBC states that, “U.S. Soccer hired lobbyists to argue that the women’s team is actually paid more than the men.” It has been further argued that the numbers were a result of logistical manipulation. Such statements contradict one another, demonstrating the parties’ goal of influencing public opinion vs. the other side as a potential collaborator at the mediation table.
Objective standards play a helpful role in pivoting away from each party’s position to figuring out what might be fair, reasonable, or acceptable in mediation.
On the side of the U.S. Soccer Federation, CBS news reports,
“U.S. Soccer has said the women are paid less because their games typically bring in less revenue and lower ratings. But according to the federation’s own financial reports, the women’s team generated more total revenue than the men’s team in the three years after the women’s 2015 World Cup victory.”
In this case, objective standards could include the average sales ranges which include the salary disparity. However, there is also a results-driven component where the USWNT evidently generates more revenue than the men’s division – as well as gaining more success than the men’s team. Last year, the men did not even qualify for the World Cup, a stark contrast to the USWNT whom participated in the Women’s World Cup and won. Focusing on objective standards, one can imagine the parties exploring a salary increase over time that would be pegged to performance and/or revenue generated by the USWNT. This standard could also be applied to the men’s team which would serve as a motivator to win and pay players based on their accomplishments.
Ultimately, to ensure that both sides to walk away feeling like the deal was a fair one, objective standards should be based on something outside of either party’s relative power, influence or resources. Though public statements cannot be fully extracted from the scenario, both sides would have been better served putting their energies towards finding a resolution. In this case, it is evident that the parties did not embrace the opportunity that mediation provides, including leveraging objective standards that are needed to reach a fair and mutually beneficial agreement.
Want to learn more about the mediation skills you’ve read about? Contact Chuck Doran at 617-895-4026 or email@example.com to learn more about how MWI can help you become (or be a better) mediator.