On Thursday morning, as fun-loving fans of the world of women's soccer turned to Twitter for hints about what might be in store for the noon NWSL Distribution Draft, they were surprised instead to learn of the complaint filed by five members of the United States Women's National Team with the Equal Employment Opportunity Commission (EEOC).
If you turned on TODAY, you might have seen this:
Flanked by attorney-to-the-athletic-stars Jeffrey Kessler, four of the five named complainants took the media cycle by the horns, ensuring they'll have ample pundit coverage of the equal pay issue during their two friendlies vs. Colombia to be played and televised during the coming week.
Unless there aren't any games at all. Twitter giveth and taketh away?
Breaking further: I’m hearing that a pay dispute with the Colombian WNT may see them strike and not come to the U.S. next week— Jonathan Tannenwald (@thegoalkeeper) March 31, 2016
Kessler has most recently been in the news for his generally successful representation of Tom Brady against the NFL's suspension and discipline relating to alleged deflation of game-ready footballs two seasons ago. But his larger cases, and the ones that should have US Soccer sleeping poorly, involve his representation of the NFL Players Associations in 1992 and 2011. Kessler led the players in decertifying their union, which exposed the NFL to antitrust complaints. Settlements quickly followed.
This time, Kessler has taken his action in front of the EEOC. There are a few important reasons why.
EEOC Complaints are investigated by the EEOC, not lawyers. Kessler isn't an inexpensive attorney, so hiring him to sue US Soccer as a first step would probably have driven the (allegedly) underpaid players into bankruptcy. No fun, and would require yet another lawyer. Instead, the EEOC Complaint will go through a few levels of scrutiny before the agency decides if it seems to have merit. If it does seem to have sufficient merit to proceed, an EEOC investigator will do the leg work to determine if any laws have been broken with respect to discrimination. Typically, this will involve interviews, document requests, exchanges of briefs, etc. Obviously, the five complainants will have made their best case in the initial Complaint. Whether or not Kessler's financial calculations and all the charts/graphs/data flying around match US Soccer's numbers, or if either of the parties' numbers represent the actual true numbers, remains to be seen.
The EEOC investigator has subpoena power, so all of the mysteries of US Soccer and the related entities stand to be brought out in the sunshine. This may be a disincentive for US Soccer to allow the investigation to go forward, especially if they think there is anything questionable to find. Since a neutral party is collecting and evaluating the case, and the case involves the equity of pay for equal work, US Soccer's business model and business partners could become targets for inquiry. Don't forget, FIFA is already the subject of a variety of federal investigations. If the investigator finds evidence that US Soccer has broken the law, it's a different situation than if Kessler was making a case in court; the EEOC will have findings of fact, not merely claims and contentions.
The Investigation will take several months, if not a year or more. So, all the other fun and excitement currently up in the air regarding the Collective Bargaining Agreement, US Soccer's preemptive suit against the USWNT for "anticipatory break of contract," etc., may be resolved in a way that settles the EEOC matter.
If nothing else, it's a leverage play. Thousands of misogynistic tweets and mansplaining think-pieces are sure to proliferate while these issues are unresolved, further exposing the general climate of inequity in which the USWNT exists. There's a presidential election with a possible female nominee possibly facing an opponent whose nastiness towards women makes the news at least weekly. With no men in the Olympics, and the USMNT needing a second-leg victory against lowly Guatemala just to stay in the hunt for a World Cup berth, US Soccer needs the revenue and popularity of the USWNT to keep their brand and business afloat.
As a consequence, I'm not going to go into all the possible bits of the law that the EEOC can/will investigate. Yet. Because I'd be stunned if it gets that far. And, because Elizabeth Mitchell wrote a fantastic piece a couple of days ago covering a lot of it. Click below and go read it. And don't be surprised if the eventual squeeze ends up being the Stevens Act, especially in this Olympic year.
Does this matter?
Yes, it matters. An ever-larger proportion of the population favors equal pay. We've got laws about it. But don't forget that women have only had voting rights since 1920. We've never had a female president. There are only twenty female senators occupying 100 seats right now. That's a greater percentage than in the House, where only 19.4% of the representatives are women.
The message keeps getting through: society at large doesn't value the contributions of women equally. Kids see this, internalize it, and perpetuate it. We get incrementally better, right? Compared to not being able to vote, it's amazing that women are permitted to wear shorts and luxuriate as athletes, right? It's the same story. Be happy for what you have. You don't work as hard. You're not fit to lead. You don't deserve the same as men. You can't do everything a man can do.
Don't take my word for it. Here's what kids have to say on the matter.
In any case, it was a good thing this happened on Thursday, because that thrilling NWSL Distribution Draft turned into a bit of a snooze. Only two teams made selections, and the unclaimed footballers became eligible to join teams as discovery players. Where, you know, they can compete for the chance to make painfully low wages as they pursue their dreams.