Killing The Goose?

"We are the best in the world" said Hope Solo in announcing her support for the EEOC complaint filed by her and four other members of the U.S. Women's National Soccer Team this past week against the U.S. Soccer Federation.

Setting aside concerns that Solo provided bulletin board material for 15 other national teams (and that she would have the temerity to bite the hand that not only fed her but provided support when she faced a domestic violence charge  (yes, I just linked to a People Magazine article) that could have ended her World Cup hopes, if not her career, last year), while Solo's statement is completely defensible given that the team is the reigning World Cup and Olympic champion, it does not conclusively prove the players' case.

Too easy, I know (photo from businessinsider.com)

By now my support of women's sports in general and soccer in particular should be well-established. I believe in level playing fields (and similarly surfaced playing fields) for men and women.

But equal opportunity does not necessarily mean equal pay.

While I am all for the women receiving pay commensurate with their work and the money that they generate for U.S. Soccer (and with their male counterparts if they are entitled to it) I'm not sure that this lawsuit is the best way to try to accomplish that. In fact, a victory for them could actually be detrimental to many of their professional soccer playing peers who are good, but not good enough to play for the national team.

The men's team and the women's team are governed by separate collective bargaining agreements, under which the men are paid substantially more for performances in international matches. Important, lawyer-type note: just because you're subject to a collective bargaining agreement does not mean that you are prohibited from bringing an equal pay claim. According to one article, when playing in an international friendly, the men can earn as much as $17,635 in bonus money for a win, $8,125 for a tie, and $5000 for a loss.  The women, meanwhile, receive a $1,350 bonus for winning a friendly, nothing if they tie or lose.

But the ways in which the men's team and the women's team members are compensated are hardly apples to apples. The men are paid strictly on a bonus system while the women are paid salaries and receive benefits more akin to those of traditional employees - severance pay and "various types of insurance" - that the men are not.  And they are also paid salaries as National Women's Soccer League players, which is where the crux of the problem, and the danger in the players' suit, lies.

U.S. Soccer, with some help from the Canadian and Mexican federations, helped start and is presumably helping keep the NWSL financially afloat. It doesn't take a photographic memory to recall the fate of the two U.S. women's professional leagues that preceded the NWSL (but it may to name them), both of which succumbed to a combination of poor management and, frankly, lack of interest in non-World Cup and Olympic seasons. It appears that the players' suit does not take into account the money that U.S. Soccer has spent to start and sustain the NWSL. [In my original post, I surmised here that the federations pay the salaries of non-federation players in the NWSL. After further investigation, I don't believe that to be the case. While information regarding NWSL individual players' salaries is not disseminated, it appears that the league pays non-federation players, while the federations only pay those of "allocated players" from one of the three participating federations. Nonetheless, the suggestion that U.S. Soccer pays the salaries of the highest-paid players in the league appears to be correct.]

The league has benefited those players, who would not otherwise have an opportunity to play professional soccer, by both giving them that chance and proving that they are worthy of consideration for the national team. Crystal Dunn, for example, was the last player cut from last year's World Cup team, but proved her mettle by being the leading scorer in the league last season. Restored to the roster, she scored five goals against Puerto Rico in the Olympic qualifying tournament and appears to be poised to play a significant role for the team in Rio.

Setting aside U.S. Soccer's apparently well-taken position that the players and their attorneys cooked the books by focusing on income from last year (when the women won the World Cup in Canada and embarked on an extended victory tour), its claim that the men's team's games over which it has control (i.e., non-World Cup games) have audiences double those of the women, and that U.S. Soccer has been at the forefront, world-wide, of commitment both to the women's game and to cajoling or compelling FIFA to support women's soccer and women in positions of power within FIFA, there's a more fundamental concern that I have with the players' complaint and the future of women's soccer in the U.S.

Where is the money to come from to pay the players if they succeed?

Unless U.S. Soccer adopts FIFA's more ... creative ways of generating income, the funds to pay a large increase in player compensation may well result in a reduction of its financial commitment  to the NWSL. And while the national team players may or may not care, that would be detrimental to the long-term health of women's professional soccer in the U.S., and perhaps to the national team as well. 

This may all be much ado about next-to-nothing. The Soccer America article suggests that the true motive for the EEOC complaint may be simply to gain leverage in the players' on-going negotiations with U.S. Soccer over a new collective bargaining agreement, particularly in light of U.S. Soccer's filing of its own complaint in February, in which it seeks court confirmation that the current collective bargaining agreement runs through the end of 2016 (fearing, presumably, a work stoppage by the players shortly before or during the Olympics).

But if it is not, if the players pursue their complaint beyond the Olympics or the (hopeful) signing of a new collective bargaining agreement, then I fear for the future of women's professional soccer in the U.S. That may or may not be of concern to Solo and her fellow litigants. But it should be to the rest of us.

Sports Hypocrisy All Our Own

The hypocrisy of organized sporting institutions (particularly those that were founded as "amateur" associations) is not limited to FIFA, nor to European-based fiefdoms. But one of the elements that enables FIFA's and the Olympic Organizing Committee's, continuing high-handed corruption is the lack of a governing body to, well, govern them.

Not so in the United States, where the NCAA is facing attacks in several judicial bodies by the individuals who have made it and its member schools billions of dollars, the same folks that the NCAA insists on calling scholar-athletes.

The Through the Looking Glass logic of the NCAA is hard to deny, particularly after the recommendation of its football rules committee this month that offensive teams be charged with a delay of game penalty for snapping the ball within the first ten seconds of the play clock. You read that right: delay of game for playing too quickly. The proposed rule has been dubbed the "Saban Rule" after Alabama head coach Nick Saban, who supports the rule apparently because "run and shoot" offences provide opponents with the opportunity to actually compete with a school that routinely has the best recruiting class in the nation. Whether the fact that only one of every five college coaches support the change matters more to the NCAA than what Saban desires remains to be seen.

While court action is unlikely with regard to the Saban Rule, the NCAA does face serious challenges in several other areas which may well force its hand with how it administers college sports. First came former UCLA basketball player Ed O'Bannon's law suit against the NCAA and its corporate partners EA Sports and the Collegiate Licensing Company seeking compensation for players who either appeared in video games or in televised broadcasts while in college.

O'Bannon's case has slogged its way through the legal system and reached a tipping point in late December 2013 when U.S. District Court Judge Claudia Wilken certified a class of former college players (comprised of O'Bannon and other named plaintiffs including Bill Russell) that sought licensing fees from EA Sports and CLC, but ruled that they could not proceed as a class on their claims against the NCAA for the use of their likenesses in televised broadcasts.

The ruling may appear a victory for the NCAA, but it still faces the claims made by the individual plaintiffs in the case, and it could have to face the daunting prospect of trying to resolve not one but hundreds of individual cases brought in all 50 states instead. Just as importantly, because the certification of the class against EA Sport and CLC would give the former athletes the rights to their own images while in college, the NCAA sought the stay of a ruling regarding a similar class in another class action which was denied by the United States Supreme Court.

In the back-and-forth between lawyers after Judge Wilken's ruling was issued, the NCAA repeated its mantra regarding "student-athletes" and the many benefits to which they are entitled in yet another attempt to justify the fact that it and its member schools make billions of dollars from the labor of their football and basketball players (and pay their coaches millions of dollars at the same time). 

Meanwhile, Northwestern University football players have taken steps to organize and join a union. The critical issue in that case, is, of course, whether football players are employees of the university or are merely (wait for it ...) student-athletes. The NLRB held hearings last week in Chicago in the case, in which Northwestern introduced a number of witnesses to testify that its athletes (who, with their 97% graduation rate, are probably more "students" than at most U.S. universities) receive academic support and are limited in the amount of time that they are allowed to practice or otherwise participate in their sport.

Former Northwestern quarterback Kain Colter, who is leading
the effort of its football players to organize (photo from Deadspin).

If past cases are any indication, the players may have a tough go of it. An effort by graduate assistants at Brown University to organize last decade was denied by the NLRB, which found that the assistants were primarily students, not employees, and reversed a prior decision of the Board to the contrary. But left unanswered is the question of why one cannot be both. "I don't know that there's anything inconsistent with being a student and an employee," noted Craig Becker, the AFL-CIO's general counsel.

The ultimate decision in the NLRB case may rest on the next Presidential election, as it's unlikely that it will be submitted to the consideration of the entire Board until 2016. Just as in Brown case's George W. Bush's Board reversed precedent regarding the organizing efforts of graduate assistants at private institutions, so too the next Board is likely to be comprised of a majority of pro-union or pro-employer members depending on whether a Republican or Democrat next sits in the White House.

Regardless of the outcome in that case, however, the O'Bannon case is likely to have a more immediate impact, both because it appears to be nearing it apex (trial is scheduled for this June) and because it will likely hit the NCAA where it hurts the most - its pocketbook and that of its member institutions. It's hard to see the NCAA's position regarding compensation of players for the use of their likenesses as anything other than archaic, last ditch attempt to cling to the same arguments that Major League Baseball made and ultimately lost long ago regarding its reserve clause, which essentially made players indentured servants to their mother clubs.

While the NCAA has a valid point that players do receive at least the opportunity to receive a higher education through their scholarships, the value of that education so pales in comparison to the billions of dollars flowing to the NCAA and its members that it is difficult to perceive that as adequate or just compensation in the 21st Century. While O'Bannon's case against the NCAA may or may not ultimately succeed, one suspects that the recent movement toward paying football and basketball players some amounts in addition to their tuition and room and board may be an avenue to at least limit whatever future financial bleeding may result from his case and thousands of others that will follow if it is successful.