There is no arguing the defeat the US women’s soccer team sustained at the hands of the courts. It happened, with Federal District Court Judge R. Gary Klausner leaving no doubt of his legal opinion that the women do not have an equal-pay case vis-a-vis the men’s national program.
There is also no arguing just how unaccustomed to defeat these athletes are. They win, routinely. Their second straight World Cup title last year in France was just the biggest headline on a long and extensive story about their international dominance.
So let’s drop any ridiculous notion that this battle is somehow over now, that these women are going to take their medicine and retreat from the fight, returning to some demure version of themselves that the people celebrating their defeat would certainly find more palatable than the outspoken, occasionally foul-mouthed dynamos they are.
Their battle is too big to be contained by a courtroom, their fight too important to be silenced by a gavel.
In the court of public opinion, these women can still change the world. As the face of an issue that applies to jobs and professions far beyond the sports arena, they are willing to stand in front of the line, to take the slings and arrows of those who disagree, and keep on talking.
As star player Alex Morgan said on “Good Morning America“ just days after the legal setback, “If anybody knows anything about the heart of this team, we are fighters and we are going to fight together for this.”
Real change doesn’t happen without someone willing to push for it. And it rarely comes without pushback from an opposition force. Do you really think Title IX, the landmark 1972 federal legislation that finally leveled the playing field for resources in women’s sports, was passed with unanimity, confetti, and smiles? Women had to scratch and claw for it. Still do, though those pesky pockets of resentment are thankfully overshadowed by the lens of history that understands how vital the legislation was to getting us here, proud owners of the world’s most renowned women’s soccer team.
History will someday look at this fight similarly and remember these players as game-changers both on and off the field.
“I’m glad that they’re going to keep fighting,” employment law specialist Amory McAndrew, an associate at women-owned law firm Hoguet Newman Regal & Kenney in New York, said this past week. “Even if it moves forward and they lose again, having this in the public, the fight in and of itself is a win for everybody.
“I don’t know how successful they can be, but I’m so appreciative of them putting the effort, the time, and putting themselves out there to fight this fight. The more you keep it in the spotlight, the more we’re talking about it and rallying behind them, that’s almost as important as what happens in the courtroom.”
The reality of what happened in the courtroom stings, proving indeed that seeking resolution through litigation for something that was collectively bargained isn’t destined to work in your favor. Ultimately, that’s what guided Klausner’s decision to grant a summary judgment to the US Soccer Federation, in which he pointed to the women’s negotiated guaranteed base salary with a smaller bonus structure as unchangeable by a lawsuit.
That the women even approached the men in earnings proves how they maximized every revenue stream available to them, and not simply for the similar bonus structure that rewards game appearances and victories, but for necessary requests for perks (perks!) such as pregnancy pay and child-care stipends. In other words, the judge’s ability to calculate the total compensation bundle as equitable is a credit to the women’s success. They were too good for their own good.
The men? They failed to qualify for the last World Cup, yet still kept salary pace nonetheless.
“It makes sense under the law why the compensation package is treated in entirety,” McAndrew said. “With those calculations for equal pay, bundling things up and adding it all up, they found it fair. My concern with that — and I don’t know if it’s a legal argument or what we’re working towards as a society — is that their bargaining power wasn’t the same. They had to ask for these things based on the structure of everything else they are dealing with.
“That goes back, generally, to a problem we have in our society. Women don’t have as many opportunities to play as many games. I wish it weren’t the case, but it happens elsewhere, too, maybe lawyers not assigned the best cases, journalists not assigned the best stories. It’s an implicit gender bias, even if the surface says we’re getting the same amount.”
This is why women have to request a “good faith” effort to schedule enough games for them to play. The men don’t have to ask for that because it happens regardless. When a race starts with one person in the starting blocks and the other 200 yards behind, it’s not equal. That’s the part of the argument not covered by this case. Of course the women want to change the terms of an agreement they’ve far outperformed — it’s not unlike any professional athlete who holds out in training camp. Ignoring the reasons they accepted it back then does a complete disservice to the reality of what they realistically could hope to get.
“The men’s contract was never offered to us, and certainly not the same amount of money,” USWNT captain Megan Rapinoe said. “To say we negotiated for a contract and that’s what we agreed to, I think so many women can understand what that feeling is going into a negotiation, knowing that equal pay is not on the table, knowing anywhere even close to your male counterparts is even on the table.
“If we were under the men’s contract we would have been making three times more.”
And yet they don’t, forced instead to keep on challenging the US federation that oversees both the men’s and women’s national programs, willing as always to hear the ad hominem name-calling, or worse, outright sexism on the other side.
Don’t ever forget those revelations of the opposition’s scorched-earth legal strategy, the one that forced Carli Lloyd to say whether she could beat a man in a one-on-one soccer contest, as if that’s the athletic standard by which we judge success, as if that implies anything other than a belief that female athletes are simply, and inherently, inferior to men.
These women won’t forget. And they won’t retreat. They get no argument here.
Tara Sullivan is a Globe columnist. She can be reached at firstname.lastname@example.org. Follow her on Twitter @Globe_Tara.