The National Team

by Caitlin Murray

  Weeks later, as negotiations for a new national team contract began, the issue came to a head. In a February 3, 2016, meeting, federation lawyers asked Nichols to reassure them that the players wouldn’t strike. Nichols refused—he said the players wouldn’t forfeit their legal right to strike. That, as far as U.S. Soccer was concerned, was tantamount to a threat, and the federation immediately went to federal court asking a judge to rule the players couldn’t strike.

  The 2016 Olympics in Rio were six months away, and both sides were digging in their heels.

  “We didn’t expect them to jump to court,” Kessler says. “But the federation obviously decided that they were going to come in like tough guys and with lots of resources and spend a lot of money, which they did, and require the players union to spend money to fight it. And it was all part of their strategy to head off any possibility that there would ever be a strike.”

  Meanwhile, there were still contract negotiations to do—contract negotiations that had to take place no matter what the federal judge decided.

  At the start of substantive negotiations in February 2016, Nichols presented an 18-page financial proposal. It essentially demanded that the women’s team be paid the same as the men’s team.

  “What we got back is what all professional players associations get when they ask for more money from management—you get what I call the Poverty Presentation,” Nichols says. “In our first negotiation, the financial officer gets up and they walk us through their last few years of their financial history and, as always, they arrive at: Well, we don’t have any money. That’s what we got in the first negotiation session.”

  Negotiations continued on March 5, and they remained at a standstill: Nichols said the national team wanted to be paid what the men’s team was making and the federation, again, said that wasn’t possible.

  “The tone of those negotiations was very contentious,” says Becky Sauerbrunn, who served on the national team’s CBA committee and participated in most of the negotiation sessions. “They didn’t go anywhere. We would go into those meetings and say we want equal pay and they would say you’re not really generating the revenue to deserve equal pay to the men. And it just went around and around like that.”

  But then on March 7, Rich Nichols saw something that caught him by surprise. It was an article by Jonathan Tannenwald of the Philadelphia Inquirer that broke down financial numbers contained in U.S. Soccer’s General Annual Meeting report. The report itself was released quietly on U.S. Soccer’s website without fanfare—Tannenwald was the only journalist for a major newspaper who picked up on it.

  What the U.S. Soccer report showed—and what in turn the Philadelphia Inquirer explained—was that U.S. Soccer initially budgeted a $420,000 loss for 2016 but changed their numbers to expect a profit of almost $18 million, based largely on the gate receipts and merchandise sales of the women’s national team during the 2015 Women’s World Cup victory tour.

  That’s not all the report showed, though. The women’s team was projected in 2017 to earn more than $5 million in revenue for the federation. The men’s team, meanwhile, was projected to lose about $1 million. That was even as U.S. Soccer planned to spend about $1.5 million more on the men’s team.

  “I couldn’t believe my eyes,” Nichols says. “I said: This is what we need. This is what we thought was the real story, and here it is. They basically provided us the financial data we needed to prove our premise that the women are the economic engine of U.S. Soccer. We knew that but we didn’t have the numbers to prove it. And the men are a losing proposition despite the fact that U.S. Soccer tries to sell the story that the men drive the revenue. The women drive the revenue, period.”

  U.S. Soccer was largely under no obligation to open its financial books to the players association, according to Kessler—the players association could have requested more specific information, but once they saw the financials U.S. Soccer had released publicly, they knew that wouldn’t be necessary. The numbers the federation put out supported the premise the players association had all along. They had everything they needed.

  When the next negotiation session came around on March 15, Nichols confidently pulled out a printed copy of the report and confronted U.S. Soccer’s representatives with it. U.S. Soccer responded that the jump in profitability for the women’s team was an aberration—not part of the larger pattern in the federation’s finances.

  “An aberration?” Nichols responded. “Aberrations don’t occur multiple years in a row. Aberrations aren’t projected. You guys have projected profitability. You projected the women to bring in more than the men.”

  What U.S. Soccer’s executives told him, and have maintained in the federation’s defense ever since, is that over the previous four-year cycle—which includes World Cups for both teams—the men brought in more revenue than the women. Both sides agree that is true.

  The gap in revenue between the national teams had historically been large—but the long-term trend showed the gap was shrinking. Since the 2015 World Cup, the gap had flipped and the women had been bringing in more money.

  No one knew it at the time, but in a little over a year, the men would fail even to qualify for the 2018 World Cup, dealing a massive blow to their ability to generate revenue. But no one needed to know that yet. For two straight years in 2016 and 2017, the women were going to be more profitable than the men, and yet—as far as Nichols and Kessler were concerned—U.S. Soccer was acting in negotiations as if the men would always be more profitable.

  “We did not believe their claim that there was a financial justification for discriminating against the women this way,” Kessler says.

  The negotiations reached their trigger point. The national team had a Plan B—a bombshell strategy—and now they were going to use it.

  * * *

  The national team players were in camp in Orlando, Florida, preparing for a pair of friendlies against Colombia when Rich Nichols and Jeffrey Kessler scheduled a conference call with the players on the team’s CBA committee. It was then that Hope Solo, Carli Lloyd, Alex Morgan, Becky Sauerbrunn, and Megan Rapinoe were presented with the idea of filing a wage-discrimination complaint with the Equal Employment Opportunity Commission, or EEOC, against U.S. Soccer.

  If the players agreed to sign on, they would be asking a government agency to investigate whether U.S. Soccer was violating U.S. laws against workplace discrimination. In other words, the players were going to publicly accuse U.S. Soccer of discriminating against the women’s national team. It was a move guaranteed to ratchet up the tension between the national team and the federation.

  “I was nervous about that call the entire week because, in essence, what we were asking these great players to do was to sue their current employer for wage discrimination,” Nichols says. “That takes huge courage from anybody.”

  “Think about that: To file a complaint with the Equal Employment Opportunity Commission, which is a public body, alleging that your employer is discriminating against you on wages, it’s a serious thing for anybody to do. It’s even more serious for the five top women professional soccer players to do in full public view.”

  The wage-discrimination complaint was a legal strategy—an idea that lawyers conjured up—but it fell in line with what the players had already been discussing for a while. Even if the players weren’t familiar with the EEOC, they had already committed themselves to standing up against what they believed was unequal treatment between the women’s national team and the men’s team.

  Nichols said only one player needed to sign on, but the call ended with all five of them agreeing to do it, as long as the rest of the national team wasn’t against it.

  “For the last several years, we had team meetings every single camp,” says Alex Morgan. “A lot of the issues with equitable pay, equal treatment, and equal opportunity for the women’s team in comparison to the men’s team surfaced and were the sticking points. We weren’t aware of the EEOC and the possibility of them coming to our de
fense before it was brought up by Rich Nichols and Jeffrey Kessler, but that was something that, as a team, we decided to move forward with.”

  Because the national team was in camp, the players on that call—except Megan Rapinoe, who was out injured after tearing her ACL in Hawaii five months earlier—were able to talk to the rest of the players about the plan. Although the five players filed the EEOC claim on behalf of the team and, as they saw it, to take a stand for all the women playing for U.S. Soccer, the complaint was filed on an individual basis, meaning no players outside of that group were directly involved. Still, the five players agreed they wouldn’t move forward unless at least a majority of the team supported it.

  The rest of the players had questions. Would the federation retaliate against the entire team? What would happen if the EEOC ruled in the players’ favor? Was there a different route the players should take?

  After a round of discussions, including a big all-player team meeting the night before the complaint was going to be made public, the five players had the backing from the rest of the team.

  Within five days of the conference call, the players filed the complaint and booked a spot on the Today show to explain their reasoning for taking such a drastic step. All of the players were seasoned pros at media appearances by then, but this was different. It was a live interview where they would have only a few minutes to try to get their point across on what had become a complicated, polarizing issue.

  “The preparation was so last-minute,” Morgan says. “We wanted to be firm on the point of why we were filing the charge and get that across in a three-minute segment. We wanted to speak up in the right moments and there was five of us—five very strong women representing the team and trying to have this voice in unison—so there was a lot of preparation within a short period of time with our lawyers guiding us through that.”

  Most worrying, it was in the middle of a national team camp, and the players were going to criticize their boss, the U.S. Soccer Federation. Morgan remembers the questions that ran through her mind: “Are we going to have consequences for doing this within camp? Are they going to feel like we are distracted? What will come of this?”

  The players admit they were scared of what the consequences could be, but they believed the fight was bigger than just themselves.

  “For me, who hasn’t really had a contentious relationship with anyone before, to basically make this proclamation, it was nerve-racking,” Sauerbrunn says. “But we also knew we were doing it not just for the five of us but for the entire team, so that bolstered us.”

  From their hotel in Orlando, Florida, before team training on March 31, 2016, Hope Solo, Carli Lloyd, Becky Sauerbrunn, and Alex Morgan, joined by Jeffrey Kessler, spoke live with Matt Lauer over a video feed at the Today show studio in New York City.

  “Carli, you don’t just wake up one morning and say, We’re going to file a claim with the EEOC, and point a finger at U.S. Soccer,” Matt Lauer said to open the segment. “This has been simmering for a while. But why does it come to a head now?”

  “The timing is right,” Lloyd said. “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. We want to continue to fight. The generation of players before us fought, and now it is our job to keep on fighting.”

  Lauer then asked the rest of the group: “Ladies, you complained to the U.S. Soccer Federation in the past. What’s been their response when you talk about these equal pay issues?”

  “You know, Matt, I’ve been on this team for a decade and a half,” said Hope Solo. “I’ve been through numerous CBA negotiations and, honestly, not much has changed. We continue to be told we should be grateful just to have the opportunity to play professional soccer and to be paid for doing it.”

  Officials from U.S. Soccer braced themselves for the appearance. The Today show had reached out to head of communications Neil Buethe the night before to get a statement. Lauer read the statement on air: “While we have not seen this complaint and can’t comment on the specifics of it, we are disappointed about this action. We have been a world leader in women’s soccer and are proud of the commitment we have made to building the women’s game in the United States over the past 30 years.”

  With the short heads-up, the federation arranged a conference call with a small, select group of trusted reporters to take place after the Today show aired. They sent information to those reporters showing how the men’s team brought in more revenue and more value to the federation. The men’s team had higher gate receipts and higher TV ratings, which made the men more attractive to sponsors, the federation said.

  Sunil Gulati—the U.S. Soccer president who had avoided some of the very public fights of his predecessors with the women’s national team—told reporters he was surprised by the filing.

  “I’m cordial with Sunil, and this wasn’t to spite him,” Lloyd says now. “We just knew we had to step up as a leadership group to make things better for the future. The only way that was going to happen was if we spoke our minds.”

  Meanwhile, the reaction to the Today show appearance was already spreading quickly on social media—and it was largely in the favor of the women. After all, a record audience had watched them win the World Cup not even a year earlier. Many fans surely assumed the women were being treated like champions.

  “The press picked up on it in about half a second,” says Eva Cole, an attorney at Winston & Strawn who worked on the EEOC filing with Kessler. “We received close to 100 press inquiries from not just press in the United States but all over the world—inquiries from Europe, South America, anywhere that has any kind of interest in soccer. It was across the globe.”

  “What I think a lot of people picked up on was this notion that they could identify players on the women’s team and they couldn’t do it for the men because the men’s team just simply wasn’t as successful,” she adds. “You had players who were popular in the public eye and that’s a lot of what drove the interest. People knew who these women were, they knew they were the best in the world, and they were captivated.”

  The lawyers at Winston & Strawn who worked on the filing saw their email inboxes flooded with messages from young girls who wanted to contact the players. Some of them were writing papers for school projects. Some just wanted to let the players know they supported them. Others were saying thanks.

  “It was a moving response,” says Jeffrey Kessler.

  Sauerbrunn says she is still getting requests from young fans working on school projects about equal pay and women’s soccer.

  “We wanted it to be public,” Morgan says. “We wanted everyone in the country to realize why we were doing this. It wasn’t just for us five players, but for all the national team players and for the future of the team as well.”

  Fans who had only just seen the team win the 2015 World Cup probably weren’t aware of what the players had been through in the past—boycotting games to earn comparable pay to the men, threatening to retire in the face of a lawsuit, asking the U.S. Olympic Committee to intervene, and so on. These sorts of battles were built into the DNA of the team. Their drive to win and their drive to stand up for themselves seemed to go hand in hand.

  For Lloyd, the appearance on the Today show and the public decision to file the EEOC claim gave the players a chance to help people understand that this sort of substandard treatment was the reality of the women’s national team. She laments that some people mistook the players’ stance as fighting against the men’s team itself, but she says it shined a light on the issues confronting the women’s team.

  “A lot of people didn’t realize the history of this team and what we’ve had to fight for,” Lloyd says. “When I first joined the team in 2005, they were fighting for salaries, healthcare, pregnancy leave—basic stuff.”

  Like many American women, the players had their own struggles with equal pay, fair treatment, maternity leave, and other issues that are as endemic in the Unite
d States as they are disheartening. As it turned out, even World Cup champions faced the same challenges as other women.

  * * *

  The complaint itself came down to hard numbers. The players’ argument was, essentially, that the federation was paying the women cents on every dollar their male counterparts earned. What the women wanted was equal pay: a dollar for every dollar the men got.

  But “equal pay” in this situation was more complicated than that. The men and women weren’t just paid different amounts—they were paid via entirely different compensation structures that they each had negotiated for in separate collective bargaining agreements. Critics argued that “equal pay” was not possible because the women and men were paid in different ways. Not only that, the players asked for the different structure.

  In the hastily arranged conference call with reporters the day of the team’s Today show appearance, U.S. Soccer’s outside counsel Russell Sauer made a similar point.

  “It quite frankly seems odd from a legal perspective that the players are complaining about a compensation system that they insisted upon,” he said.

  The women were paid salaries they negotiated in their last CBA—the most veteran players earned a $72,000 salary, second-tier players earned $51,000, and the lowest-tier players earned $36,000. That was guaranteed payment regardless of how many games they played. The men, meanwhile, were not paid salaries at all. Instead, they were paid on a per-roster basis, and each roster appearance was worth thousands of dollars. A male player had to be called in and make a roster to earn anything, so if he was injured or fell out of favor with his coach, he received nothing from the federation.