In the fight for equal pay, the hardest thing to beat is not a judge or corporation or a piece of case law. It’s an attitude. The real opponent is a fearful illogic that says to grant a single dollar to a woman for her excellence somehow comes at the expense of a man. That illogic, that unreasoning resistance, is written all through Judge R. Gary Klausner’s latest opinion on the U.S. women’s soccer pay discrimination case, a ruling that is a setback — for now — to the idea that gold medal-winning American women should make a merely equitable wage for better and more work.
All you have to know about Klausner’s ruling is that it leads with and lingers on the men’s national soccer team and what it doesn’t get. You stare at the page, mouth agape, wondering whether your eyes are seeing right. Why, you wonder, is Klausner going on about men? Where are the women? Where are Megan Rapinoe and Carli Lloyd?
Ahh there they are. On Page 3. Halfway down.
And that sums it up.
As you read on, you realize that Klausner has not really ruled here. He has just stewed. For 32 pages he mulls with an ill-concealed agenda over the nerve these women had to ask for things. Things the men don’t have. Things that have nothing to do with the case.
If you had to summarize the ruling in a sentence, it would be this: The real victims are men.
The case is about a range of disparities, among them inferior travel and working conditions. At the center is the women’s contention that in a direct comparison of performance bonuses, they are paid far, far less for everything from friendlies to World Cup matches. Rapinoe has to win more matches — and bigger and more meaningful ones — to keep up with the bonuses paid to male players for losing.
No one has disputed this — not even U.S. Soccer. It’s a fundamental fact that’s hard to get around. U.S. Soccer has tried to justify the inequity by making a shifting series of arguments, such as women’s soccer is “inferior” and lacking in “skill” or men’s soccer is more popular. And they have scraped together numbers to show that Rapinoe actually made more than a male counterpart over the period of the claim. Well, yes. But only because she won so many matches and so many big gold medal matches, while the men lost in World Cup qualifying.
As Molly Levinson, the players’ strategist and spokeswoman, pointed out: “If the men had won as many times as the women did, they would have made three times or more the amount of bonuses the women did. Just because they are men.”
It takes Klausner more than 10 pages to get to this central point. Those 10 pages are full of brooding over the negotiating memos that the women sent to U.S. Soccer going back to 2012, memos in which they asked for all kinds of things — things the men’s team “doesn’t get,” he points out time and again.
Such as maternity leave.
The pay plans for the men’s and women’s national teams differ widely in structure. That’s because they have separate player associations and lawyers. Their contracts therefore are, inevitably, different. But there are some areas for direct comparison. Performance bonuses are one. Klausner, however, refuses to look squarely or “in isolation” at bonuses. He refuses to compare apples to apples — because he is utterly fixated on the things the Rose Lavelles and Alex Morgans got in their negotiations that the men didn’t.
Klausner really, really can’t get past the fact that the women bargained for and won a little bit of assured pay. It’s not much, just a provision that if you made the women’s national team roster — with its 20-year continuous history of delivering Olympic gold medals and World Cups — you got a base of around $72,000 per year from 2013-16. It’s not really guaranteed money, because you can be cut from the team at any time. Nevertheless, Klausner can’t get over it. He returns to it again and again.
They got it, and men didn’t. Male players have to play to get paid under their contract, he points out. They don’t have security. He assigns a huge and significant value to this — though he can’t say just how much its worth. “It’s difficult to attach a dollar value” to this “insurance,” he writes. Insurance?
Now this is where the ruling really gets strange. In a footnote, he concedes that this mysterious economic value “should not be considered a form of ‘wages.’ ”
Yet it leads Klausner to all of his other fundamental errors in math and logic. He bases his entire ruling on it. The judge acknowledges that the women clearly were paid “lower bonuses in these categories of compensation.” And the law clearly states that a woman shouldn’t have to work twice as hard for the same dollar. To call that equality would be “absurd,” Klausner acknowledges. But he suddenly argues that it doesn’t matter — because of “other benefits” received by the women. Benefits that the men’s national team does "not receive.” Even though he can’t put a dollar figure to them. Even though they have only some vague “cumulative” and psychological worth that he can’t articulate. Which he is forced to admit in a footnote — a footnote — doesn’t count as wages.
Klausner has gone one better than U.S. Soccer officials, who at least are up front in their sexist argument that the women’s game is inferior and so players aren’t entitled to more. Their counsel literally argued “market realities are such that the women do not deserve equal pay.” Former chief Carlos Cordeiro flatly admitted in 2017 in a public statement, “our female players have not been treated equally.”
Which provokes Klausner’s most offensive contortion of all. Just because U.S. Soccer officials admitted that women players are paid less “does not make it true,” he writes.
The women’s national team will appeal this strange, sore-headed ruling, and they could see it overturned. A higher court has applied the word “illogical” to Klausner at least once before. This ruling should be another. It could be paraphrased as: “You got a couple dollars out of a man’s pocket. That’s enough.”
Read more from Sally Jenkins: