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US Soccer Federation 2 – USWNT Players’ Association 0

Carli Lloyd celebrates her goal against T&T. Credit: Gia Quillap

Carli Lloyd celebrates her goal against T&T. Credit: Gia Quillap

The USWNT suffered its biggest loss in almost two years at the hand of Judge Sharon Johnson Coleman earlier this week. Judge Coleman ruled that the players were still governed by a Collective Bargaining Agreement (CBA) with a valid and enforceable No Strike/No Lockout clause in the legal dispute between the US Soccer Federation and the USWNT Players’ Association. Here are the answers to some questions many have about the ruling and the ongoing dispute between US Soccer and the USWNT.

How did this lawsuit start?  

The USWNT Players Association sent notice to the USSF that it intended to terminate its agreement with US Soccer allowing it the right to Strike if it desired. It gave notice to US Soccer that if significant progress was not made in negotiating a new CBA between the parties by March 1, 2016 it would terminate the Memorandum of Understanding between the parties (and be free to Strike whenever it so desired).

US Soccer believed that the agreement it had in place with the players ran through the end of 2016.  US Soccer argued the agreement contained a valid No Strike/No Lockout Clause even though the No Strike clause was actually part of the 2005 CBA between the parties and not explicitly included in the Memorandum of Understanding.

Since the players failed to unequivocally deny they would strike this year, US Soccer sued the Players’ Association preemptively in federal court to prevent the Players’ Association from striking.

So why does this ruling matter?  

The Olympics. Going on strike is about exerting the maximum amount of economic pressure on your employer to get them to capitulate to the employment terms and conditions you desire. The USWNT’s best time to strike since 2005 was this last year when the USWNT were coming off all the fame and notoriety that went with being World Cup Champions.  However, a strike also has to have an economic impact that is felt by the employer. The Olympics are set this summer in Brazil and a strike would leave the USWNT without its best players before one of its two most important tournaments.

USWNT win CONCACAF Olympic Qualifying Final. Credit: Ray Escamilla

What was so important about March 1, 2016 for the Players?  

The USWNT would have just finished qualifying for the Olympics a week earlier, were on the cusp of playing in the inaugural She Believes Cup hosted by US Soccer, and the NWSL season was getting ready to kick off in the next month. Reading the tea leaves, that date would have been the perfect time to start a strike especially if US Soccer was paying out of pocket for the other teams in the She Believes Cup to travel to the US for the tournament.

Compare that date to January 2017. The court ruled the players have a valid No Strike Clause through the end of the year. However, they would be free to strike when the year ends. The only issue is the calendar. If the USWNT strikes in January of 2017, the US Soccer Federation has two years to work out a new deal with the players on strike before the next World Cup.

Why did the USWNT lose?

Essentially, Judge Sharon Johnson Coleman saw through the USWNT Player’s Associations new leaderships’ arguments. The ultimate question decided by the judge was whether terms from the 2005 CBA that were not specifically changed by the Memorandum of Understanding adopted before the start of the NWSL were still included in the “agreement” between both sides.

The first problem the USWNT had was their “agent” for negotiating the deal with US Soccer exchanged specific communications with Sunil Gulati stating that any item not specifically changed by the Memorandum of Understanding remained. Second, the USWNT Players’ Association utilized the grievance and arbitration provisions between the parties contained in the 2005 CBA that were not specifically referenced in the Memorandum of Understanding. As a result, the parties did intend that other provisions like the No Strike clause were intended to carry forward.

Can the USWNT still strike?

Yes. You probably aren’t reading that anywhere else, but the players are still free to strike whenever they desire.

Why won’t they strike?

First, the players would breach the agreement with US Soccer they made not to strike as the court just ruled. As a result, US Soccer would be allowed to seek reimbursement for damages from the strike from the players. Further, US Soccer would be free to retaliate against the players as a union with a valid No Strike Clause who then go on strike are not protected by the labor laws in this country. As a result, it seems much more likely now because of this ruling that the players will not strike until January 2017 assuming they can’t work out better terms with US Soccer.

What About the Players’ EEOC Equal Pay complaint?  

The players’ EEOC Equal Pay complaint related to Equal Pay is not impacted by the court’s decision. Earlier this week, US Soccer filed its position statement in response to the players equal pay complaint. Essentially the US Soccer Federation scored a solid 2-0 victory on the home leg and the series now heads to the USWNT’ home stadium where the USWNT hope to remedy its allegedly discriminatory pay practices at the EEOC level (and possibly later, eventually in a court of law again).

How will we know who wins?

Ultimately, the final scoreboard of this home and away series will be the newly negotiated CBA between the parties. Only in those CBA terms and conditions will anyone know who ultimately won these disputes.

Dwain Capodice is a freelance writer covering the Houston Dynamo and the US National Team for Keeper Notes. He can be reached on twitter @dcapodice or via email at dwaincapodice@gmail.com or dwain@keepernotes.com.

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