Revealing the Ugly Side of the Beautiful Game: An Interview with Jeffrey Kessler, Lead Attorney for the United States Women’s National Soccer Team in Their Struggle for Equal Pay

In 2020, the United States women’s national soccer team became the only team to have won four world cups, which, compounded with four Olympic gold medals and eight CONCACAF Gold Cup victories, makes them the most successful team ever in international women’s soccer [1]. The USWNT has been ranked first in the world for 11 of the last 12 years [2]. The women’s athletic accolades vastly outshine those of the U.S. men’s team, which failed to qualify for the most recent 2018 World Cup, and less than a month ago, failed to qualify for the upcoming Summer Olympics for the third consecutive cycle [3].

Whilst the qualitative gap between the men’s and women’s teams could not be more evident, the compensation the two receive tells a different story. Despite the USWNT’s blatantly superior success, they continue to earn a fraction of what their male counterparts do. And whilst gender-based pay disparity is a phenomenon prevalent across virtually all industries in the United States, the unparalleled success of the U.S. Women’s National Team in recent years (and the men’s decided lack thereof) has caused their particular discrimination to gain escalating public traction. The words “Equal Pay for Equal Play” have populated newspaper headlines and posters, have been chanted in stadiums, and have become the emblematic battle cry of the United States women’s national soccer team’s ongoing struggle for wage equality. Each successive victory saw mounting cries from the public and from the players themselves until finally, in 2019, the USWNT’s battle moved off the field and into the courtroom.

Commanding the women’s legal army is Jeffrey Kessler, lead attorney representing USWNT in their gender-discrimination case against the U.S. Soccer Federation. A graduate of both Columbia University’s College and Law School, Mr. Kessler has established himself as one of the most prominent sports lawyers in the United States and the world [4]. The current partner at international law firm Winston & Strawn and co-chair of said firm’s sports law practice group is no stranger to high-profile sports litigation and has represented clients including the respective Players Associations of the National Football League (NFL), National Basketball Association (NBA), National Hockey League (NHL), and the Major League Baseball Association (MLB), as well as Adidas and the Cities of San Diego and Oakland [5].

The HULR sat down with Mr. Kessler to discuss his first-hand involvement in the USWNT’s wage inequality lawsuits, the current status of the trial, and his hopes for how the future will play out. Though he may not be lacing up his cleats and stepping onto the pitch, Mr. Kessler is a key player in ensuring the USWNT scores its most important goal ever: equal pay once and for all.

The interview below was conducted on March 25, 2021. It has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): The complaint filed by the US women's national team alleges that the US Soccer Federation's actions violated both the Equal Pay Act, and Title VII of the Civil Rights Act of 1964, two statutes prohibiting gender discrimination in the workplace [6]. To begin, I was wondering if you could briefly outline the difference between these two?

Jeffrey Kessler: Title VII is not limited to pay discrimination, it covers all forms of discrimination. It's also not limited just to women. It can be based on race, it can be based on sexual preference, it can really be based on a lot of different things. And the standards of Title VII are, in some ways, easier to satisfy than the Equal Pay Act claims. The Equal Pay Act claims are only for gender discrimination and only for pay, and the act has a specific set of requirements and case law that's been applied.

Usually, the way it works is that if you can establish your Title VII equal pay violation, you will have also established an equal pay act violation in terms of that. Congress originally thought it was making the Equal Pay Act easier to satisfy, but with the way it's interpreted, that hasn't always proven to be the case in terms of how the courts have treated it. So the pay claims we filed were, factually, the same under both statutes. But the legal standards are a little different, the remedies are different.

HULR: Got it. So, to have a valid case of legal gender discrimination, plaintiffs must prove that their work is equivalent or substantially similar to that done by workers of the opposite gender who are paid higher wages [7]. But a common counterargument you hear in the news and public, which attempts to justify the pay disparities between men’s and women's soccer as non-discriminatory is market theory, which claims that the women's team generates less revenue than the men. Is this a valid argument?

JK: Well, it's factually untrue, so therefore it can't be valid. Since 2015, the women's national team has earned more revenues than the men's national team. So, in the abstract, could great revenue disparities be a non-discriminatory reason for the differences in pay? Yes. But factually, here, that's not the case.

HULR: Right. So then to establish that there is actually wage discrimination going on, it is necessary to show that the U.S. Soccer paid USWNT players “at a rate less than the rate at which it pays wages to employees of the opposite sex” [8]. Could you outline the main arguments and evidence you presented in attempts to prove that this was the case?

JK: This is the critical issue now with the case. The women and the men have different pay structures. But what is clear is that for every win that the men get versus the women get, they get paid a higher bonus. For making the World Cup, they get a higher bonus. For every World Cup qualifying game they win, they get a higher bonus. For just showing up, what we call an “appearance fee,” they get a higher amount. So the rate of pay is clearly discriminatory.

But what the district court found, and ultimately granted summary judgment against our pay claims, is that because over the five years of the class, the women won many more games, and the women made the World Cup whilst the men didn't make the World Cup, even at a lower rate of pay, the women actually made slightly more in total than the men made over that five-year period. The court said that we therefore did not prove there was discrimination in pay, because the women made more in total. And the fact that they could have made a lot more under the men’s deal, (the judge) said is not relevant, because the women negotiated their own deal: this is the deal they got. We think that's legally wrong, and that's what we're going to appeal to the Ninth Circuit.

HULR: As you mentioned, Judge Klausner, District Judge of the United States District Court for the Central District of California, granted U.S. Soccer’s motion for summary judgement on Equal Pay Act claims by the US women’s team, and his ruling was based largely on the different collective bargaining agreements negotiated by the men’s and women’s teams [9]. The argument was that the women’s team rejected an offer to be paid under the same pay-to-play structure as the men’s team, and therefore got paid less [10]. Could you expand on this: do you believe this argument was legally sound, and if so, evidence enough to justify the ruling?

JK: There are two different agreements, and they are different, they are not identical. But the key point here, which judge did not address, is that the women were never offered the men's deal. Had, the USSF just said, “Take the entire deal that the men have on pay structure,” the women would have taken it because they would have earned tens and millions more dollars under that deal. So yes, they negotiated the best deal they could. But that doesn't mean they're not entitled to an equal rate of pay.

Any time any woman is employed, she agrees to accept the salary she offered, that's the best she could get. That doesn't mean she agreed to be discriminated against. Had they had come in and said, “Hey, we offered you the men's deal,” and the women said, “No, I don't want that,” that'd be a different argument. But they don't have that evidence in this case. They were never offered the option to get that full bonus structure. They may have been offered little pieces of it, but not the whole structure that would have given them, as I said, tens and millions of dollars more in compensation. So they would have taken that deal.

HULR: In December, the USWNT players and U.S. Soccer actually reached a settlement and filed an agreement over the unequal working conditions part of the lawsuit [11]. Could you say a little bit more about that? Was this settlement a success in your eyes?

JK: We had to resolve that in order in order to appeal the loss on the pay discrimination claim, because in the federal court system you can't appeal part of the case until the whole case gets to a judgment. And as I mentioned earlier, the Title VII claims were not limited to paid discrimination, they cover other forms of working conditions discrimination. The women had claims about the fields on which they played, they had claims about how they were transported to the games and whether they got floodlights or not versus the men. They had claims about the hotel accommodations that they had versus the men. And they had claims about the staff support they received in terms of medical support, traders, and others who were going with them on these games: the whole quality of the working experience. We successfully resolved that for an equal treatment structure, so that was a great success. We got a settlement agreement where all new policies will be put into effect in those areas, and if the men ever get a new policy that's better, the women have the right to accept that in its place. That settlement is up for final approval in April, when there’ll be a final hearing. Once it is approved, that will go into effect, and we will then be able to appeal the pay discrimination claims

HULR: UWSNT members including Alex Morgan and Megan Rapinoe have been vocal about appealing the Equal Pay decision [12]. What are the next steps in actually appealing the pay discrimination claims? What would you qualify as a “successful outcome”?

JK: We will argue that the judge did not apply the correct legal standards and resolved issues of fact which should go to the jury as opposed to being decided by the judge. It'll go to the Ninth Circuit Court of Appeals and hopefully we'll get a good result there, who would then if we win send the case back for a pay discrimination trial. 

If we win on appeal, then we have to go back to a jury and convince the jury that being discriminated this way is in fact unlawful discrimination and then we get damages. We then seek both the damages and an injunction, and the jury would have to determine the damages.

HULR: Some players, such as the aforementioned Megan Rapinoe, have mentioned that they would not be opposed to a settlement on the equal pay front as well, should it be judged as fair [13]. Is this true?

Kessler: I think what the women have indicated publicly — they really run this case, I'm just their lawyer — is that it they would settle if they can, a) get equal pay treatment going forward in all aspects, as that's their main objective, and b) they would have to agree on a reasonable amount of damages for the past discrimination: they will need to get both elements resolved. They've always been open to settling if the USSF were interested in settling that way, but the problem has been that the USSF has never shown a willingness to settle on those terms. Therefore, they will continue to fight as they've been doing, and as two of them* and really the whole team made clear yesterday, on Equal Pay Day where they met with President Biden and First Lady Jill Biden (two of them were there in-person while the rest were there virtually) and they strongly indicated they will continue this fight with the support of many, including the White House.

*Referring to Megan Rapinoe and Margaret Purce visiting President Joe Biden at the White House. The former also testified about gender discrimination in front of the House Committee on Oversight and during a hearing on March 24, 2021, Equal Pay day [14].

HULR: Building on the idea of external support, the case has earned global attention and public support has been by and large in favor of the US Women’s team, which has also received backing from numerous high-profile persons including the aforementioned President Joe Biden, and Billie Jean King [15]. What role, if any, do you believe this played and will continue to play in the judicial process?

JK: I think it doesn't directly affect the legal process, but in the end both judges and juries tend to reflect the public, they’re part of the public. In that sense, as the public develops a growing recognition of the importance of equal pay and treatment, and in this particular case that these women really deserve equal pay, and really all women do, I think the world and the law and the cases are moving in that direction, notwithstanding the setback we had before the judge in this case.

HULR: Earlier this month, two U.S. Congresswomen Rosa DeLauro and Doris Matsui introduced the Give Our Athletes Level Salaries (GOALS) bill with the aim, according to its sponsors, of “block(ing) any and all federal funding for the 2026 world cup — jointly hosted by the United States and Canada — until the U.S. Soccer Federation (USSF) pays the USWNT fair and equal wages” [16]. Do you believe the bill has a chance of advancing past the House and the Senate and making a tangible impact?

JK: I am not a political expert, so I don't know what the situation is in Congress in terms of that. It strikes me that Congress has a lot of trouble passing anything now, not so much in the House, but in the Senate, so I just don't have a good sense as to what the prospects would be for that bill, particularly the Senate. I suspect it could get a lot of support in the House, but I don't know what’s going to happen to it ultimately. I would hope legislation like that could advance, but we'll have to see.

HULR: Do you think establishing legislation of this type is necessary to achieve equal pay across the board? Or is it more driven by individual cases?

JK: No, we can just win our case, which wouldn’t need it. But obviously, if this legislation gets adopted sooner, we could win quicker and send a message that would be very powerful. We certainly wouldn't oppose winning that way, the women just want to get equal pay not only for themselves, but for all women everywhere. Whatever is the quickest way to get there, I'm sure they'd be interested.

HULR: Given the current saliency of gender discrimination and pay disparity issues, do you believe the outcome of this case could have lasting legal ramifications and act as a potential legal precedent?

JK: Yes, in two ways. Directly, we need to get a Ninth Circuit to say that the rate of pay is discriminatory no matter whether you earn more. Otherwise, you're going to have a discriminatory situation in any type of industry. Say you had two salespeople: a male paid a 20% commission on sales, and a woman paid 10%. If the woman had three times the sales of the male, the woman would make more, but she would be discriminated against. So, it's very important, I think, to establish that legal principle, which will apply way beyond just the women's national team. In that sense, this case could be very influential.

Secondly, I think just in terms of being symbolic for women everywhere, for policymakers, for Congress, for other courts and juries, it's very important for this team to be treated equally. Because, as Megan (Rapinoe) has repeatedly said, if they can't get equal treatment given what they've accomplished and the limelight that they're under in this situation, then who can get equal treatment? So it's really important, as a symbolic matter, that they be able to do this.

HULR: And just to close off, it must be incredible working with these women, and I was wondering whether this case has taken on any personal significance or importance to you

JK: Sure, I mean, you know, it's an incredibly important issue. These women are unbelievable leaders. They're inspiring to be with and talk to and laugh with and fight with, and their determination is incredible. They're great clients and I'm honored to be the lawyer. Yes, the case means a lot to me. Hopefully, we're going to eventually find victory in the end.

HULR: Yeah, I hope so. I'm currently playing soccer here in Italy, where the women haven't yet gained professional status at all, so that's an ongoing fight. But I just wanted to thank you so much for all the work that you're doing in the US- it's really inspiring to me personally and to so many players back home and internationally.

JK: Yeah, you're right. People don't realize overseas the discrimination is obviously as bad or worse. Even in the UK, which we tend to view as being more egalitarian, it wasn't that long ago that women had no professional soccer. We need the whole world to hopefully be inspired by these women.

References

[1] “FIFA Women’s Soccer/Football Rankings 2020.”

[2] Murray, “The Inside Story of How the USWNT Became the Most Dominant Force in Women’s Football.”

[3] Das, “U.S. Men Fail to Qualify for Olympic Soccer Tournament.”

[4] “Jeffrey L. Kessler - Antitrust, Sports Law & Trial Lawyer.”

[5] “Jeffrey L. Kessler - Antitrust, Sports Law & Trial Lawyer.”

[6] Morgan v. U.S. Soccer Fed’n, Inc., 445 F. Supp. 3d 635.

[7] The Equal Pay Act of 1963.

[8] Morgan v. U.S. Soccer Fed’n, Inc., 445 F. Supp. 3d 635.

[9] Morgan v. U.S. Soccer Fed’n, Inc., 445 F. Supp. 3d 635.

[10] Morgan v. U.S. Soccer Fed’n, Inc., 445 F. Supp. 3d 635.

[11] Das, “U.S. Soccer and Women’s Stars Reach Deal on Working Conditions.”

[12] “US Women Vow to Fight on in Pay Dispute.”

[13] Morgan, “After Legal Setback, Megan Rapinoe Says U.S. Women’s Soccer Players Want ‘Nothing Less than Equal.’”

[14] Bieler and Boren, “At White House, Megan Rapinoe Says She’s Been ‘Disrespected and Dismissed Because I Am a Woman.’”

[15] Peterson, “What’s next for U.S. Women’s Soccer Team after Unequal Pay Lawsuit Denied.”

[16] “Matsui & DeLauro Introduce GOALS Act to Level the Playing Field for U.S. Women’s National Soccer Team.”

Image Credit: Winston & Strawn LLP