Legal Analysis regarding US Soccer vs. US Women’s National Soccer Team Players Association
The above image shows the United States Women’s National Soccer Team at a happier time, celebrating its 2015 World Cup Victory at the White House with various officials of United States Soccer Federation (“US Soccer”). By now you’ve heard about the lawsuit that US Soccer has filed against the United States Women’s National Soccer Team Players Association (“Union”). The lawsuit is rather simple, and contrary to number of tweets in support or the Union and/or against US Soccer, it is not an attack against the players themselves. Rather, the lawsuit boils down to a single, simple issue.
After a former Collective Bargaining Agreement (CBA) between US Soccer and the Union expired at the end of 2012, and a “Memorandum of Understanding” was executed in March of 2013 to increase player compensation and benefits, was it the intent of the parties to have the Memorandum of Understanding extend all other clauses contained in the earlier CBA? More precisely, where the prior CBA contained a “no strike/no lockout” clause and the Memorandum of Understanding did not explicitly repudiate this clause, did the “no strike” clause continue to the termination date of the Memorandum of Understanding (December 31, 2016)?
There is a fair amount of evidence to support US Soccer’s position that a “no strike” clause continues to exist under the terms of the Memorandum of Understanding. Depending on how you read the testimony of the Union’s former Executive Director and lawyer, and certain emails between the Union’s former lawyers and US Soccer, one can make a reasonably strong argument that the Memorandum of Understanding tacitly adopted the “no strike” clause. The lawsuit identifies various emails in 2014 and testimony of the former Executive Director and lawyer in 2015 which supports US Soccer’s position. It is going to be hard for the Union to refute this evidence.
Yes, the “no strike” clause could have been explicitly adopted as part of the Memorandum of Understanding, but based upon the exchanges of the lawyers for the various parties, it is reasonable to conclude that all of clauses contained in the expired CBA (including the “no strike” clause) continued in force with the sole exceptions being certain financial terms which were modified in the Memorandum of Understanding.
Of course, the Union’s current Executive Director and lawyer disagrees with this viewpoint because he explicitly told US Soccer in December of 2015 that he didn’t think that the memorandum agreement included a “no strike” clause. In the end, US Soccer sued because the Union’s lawyer decided to draw a line in the sand by suggesting that the Union was free to strike. While I won’t bore you (more than I have) with the particulars of labor law, he threw down a challenge flag of sorts (wouldn’t it be great to see coaches do that someday?), and US Soccer responded in kind by taking the Union to court to decide which position is correct.
US Soccer was left between a rock and a hard placing in having to sue the Union. While there appears to be a public outcry in support of the players (no doubt fueled by “turf gate”), US Soccer’s decision to sue the Union was not unreasonable given the start of the upcoming women’s pro soccer season and Olympic qualifiers. Furthermore, the terms of the Memorandum of Understanding caused the US Soccer to issue retroactive payments in the form of enhanced salaries and benefits. Put another way, US Soccer is well within its rights to ask a court to require the Union to live up to its end of the bargained for compensation by not striking.
With the Union’s lawyer indicating that the Memorandum of Understanding did not adopt a “no strike” clause and with him suggesting that the players could strike just weeks before the start of the pro season and Olympic qualifiers, US Soccer had no option but to ask a federal court to decide a fairly simple issues: does the memorandum agreement include a “no strike” clause? If it does, a court (under labor law principles) can prevent the Union from striking.
Is this a war against the Union? Of course not. Rather, I think that the Union’s lawyer may reevaluate his position and that both sides will sit down and negotiate a fair CBA before the Memorandum Agreement expires on December 31, 2016. According to footnote one of the lawsuit, US Soccer intends to negotiate a new CBA in good faith:
Of course, US Soccer will, in the meantime, bargain in good faith with the Players Association for a new collective bargaining agreement on mutually agreeable terms effective January 1, 2017. But, wholly independent of those negotiations, US Soccer is entitled to labor peace through the end of December 2016 — an environment it bargained for and paid for, and to which the Players Association agreed on March 19, 2013.
As always, in the wake of “turf gate”, there might be bigger issues in play. For example, last night Hope Solo tweeted the following:
“We players stand together, united in our fight for what is right and fair. #Equality”
To some, Hope’s tweet may be ironic given how public opinion on whether she was treated less harshly for her domestic abuse charges because she is a female and the primary victim was a male. While a review of Hope’s tweet shows that a majority of people responding supported her, at least one person returned to Hope’s sordid history and asked “what’s your stance on domestic violence.” In that regard, one could argue that Hope may not be the best spokesperson for equality. The team has far better role models to turn to.
Unfortunately, in the end, despite many fans bemoaning the US Soccer’s decision to sue the victorious 2015 World Cup champions, it appears that the lawyer for the Union forced US Soccer’s hand. While US Soccer may have lost an initial skirmish in the “court of public opinion”, in the end, it was left with no choice other than to ask a court to decide which side was right. My educated guess is that US Soccer will win the case and the parties will negotiate a fair and reasonable CBA to carry the players into another Olympic medal and World Cup Trophy. More to come on this saga, that’s for sure. I’ll report back when there is a response from the Union’s lawyer, Rich Nichols.
UPDATED 4:25 pm, 2/4/2016. There has been a public outcry over the disclosure of the home addresses of various players. However, one of the Department of Labor documents in question, a “Form LM-2 Labor Organization Annual Report”, is a public document available on the DOL’s website. Whether the players in question know this Form is public is unknown. The telephone number listed on this Form is the number for the Union’s former lawyer. The players’ email addresses are not listed on this Form.
UPDATED 6:30 pm, 2/4/2016.
US Soccer has filed a redacted version of the Complaint to remove the players, email addresses and home addresses. Counsel for the Union agreed with the relief sought in the motion.
And during this afternoon, lawyers for US Soccer filed a motion to ask the presiding judge to issue an order to allow for an expedited summary judgment briefing schedule. In non-legal terms, this means US Soccer is going to file a document which explains to the court why it is entitled to a ruling in its favor (both factually and legally). Of course, the Union will have a chance to respond in writing, but given the upcoming pro soccer season, training camps and games, it is likely that the court will agree to an expedited schedule. The court may set a briefing schedule on February 9th when US Soccer has scheduled a hearing on its request for an expedited briefing schedule.