Published in the KCBA Bar Bulletin, August 1, 2019
As Morgan, et. al v. U.S. Soccer Federation, the class action Equal Pay Act and Title VII gender discrimination suit heads to mediation following the U.S. Soccer Federation’s Womens National Team (USWNT)’s record fourth FIFA World Cup win, the current wave of public sentiment and attention provides a master class in demonstrating how interest-based facilitative mediation in a complex high profile dispute, where passions run high and everyone has an opinion, may prove superior to litigation in reaching durable, sustainable, satisfying results for all involved.
“We don’t want to have this huge, public, nasty fight, that’s not really in the best interest for anyone. We would much prefer to have a collaborative approach with FIFA, with the federation — how can we move this forward, how can we go to the next step, to create a world that is equal and fair for everyone?” The U.S. Soccer Federation (USSF)’s enthusiasm for going to mediation may have been lukewarm when Wall Street Journal reported the tentative agreement to mediate – “While we welcome the opportunity to mediate,” USSF said in a written statement, “we are disappointed the Plaintiffs’ counsel felt it necessary to share this news publicly during the Women’s World Cup and create any possible distraction from the team’s focus on the tournament.” And, it’s understandable if their enthusiasm waned yet further as both FIFA and USSC representatives endured chants of “Equal Pay! Equal Pay!” from football fans in both France and the U.S. beginning moments after the WNT won 2-0 in the final game against Netherlands, continuing through an explosion of mostly pro-employee news coverage, interviews and viral celebratory moments that have followed – not to mention calls from members of Congress, presidential candidates, and major news outlet editorial boards demanding USSF “do the right thing.” Nonetheless, if USSF has the courage to participate in the mediation process in good faith, they could find themselves back in a win-win situation.
The Players and USSF Share Vital Interests
Both the employees and their employer share two common overarching interests. The first is reflected in the U.S. Soccer Federation’s mission statement: “to make soccer, in all its forms, a preeminent sport in the United States and to continue the development of soccer at all recreational and competitive levels.” When elite athlete, Seattleite, Reign FC forward and 2019 U.S. team co-captain Megan Rapinoe was asked what would help ensure the growth of the game after an immensely popular World Cup, she waxed eloquent: “Money from FIFA, money from federations. Money from advertisers, sponsors, rights-holders, TV. All of that. And obviously not just blindly throwing cash at things, but investing in infrastructure, in training programs or academies for women, in coaching for women. All of it. I don’t think you, sort of, get to the point of having an incredible business by running it on a budget that’s a dollar more than it was last year. You have to make big up-front investments and really bet on the future. I think that the women's game has proved time and time again, World Cup after World Cup, year after year that we're worthy of the investment. The quality on the field and the product on the field is there, and we just sort of need that business step to be in line in terms of all the steps we are making on the field in terms of performance. So for me, I always say that, it's always money."
In short, the elite athlete soccer players employed by USSF have as high an interest in increasing the prestige of, participation in and revenues from major league soccer as their employer.
The second shared interest is in maintaining positive working relationships. Unlike most industries, elite athletes performing at the highest levels of competition are not easily substituted by others. And, for the players, USSF is effectively their only viable employer. Everyone’s fortunes will rise or fall together, so how their current disputes get resolved is therefore at least as important as that they get resolved at all. Rapinoe’s response to a question about support for the WNT by the USSC during litigation and on the eve of the final game illustrates this: ““We don’t often give them kudos, but that’s definitely one that I’m willing to give. They back the team in a very strong way and have pushed the game, not only in our country but around the world, to a level that without us, we wouldn’t be here in the world game. So I think that they do deserve a tremendous amount of credit for that … and we’ll continue to nudge them forward.”
Why Mediation? 
Mediation allows the parties opportunities to resolve their disputes with a continued working relationship in mind by focusing on respect for each other’s interests, while not forcing agreement on often widely disparate positions. Self-determination is the key principle of facilitative mediation and the one element that clearly distinguishes it from litigation. Parties have ownership of the process and the responsibility to find a mutually agreed solution. The role of the mediator is to foster dialogue and facilitate a voluntary resolution of a dispute, not to solve, suggest, or find solutions, or coerce parties into accepting anything they haven’t elaborated themselves. The mediator’s role is to facilitate the free exchange of ideas and never impose an agreement.
During mediation, it can both be true that WNT members are paid 38% of what players on the USMNT are paid and that there are valid, non-discriminatory mission-aligned reasons to do so. It can be true both that the USWNT has delivered more revenue for the USSF than the USMNT and that USSF has made significant investments toward advancing gender equality in professional soccer. The confidentiality of mediation encourages the parties to speak frankly about these matters, as well as about their goals, objectives, objections, needs, wants and irritations. Apologies can be offered and accepted, a harm that has been done (intentionally or not) can be acknowledged, and offers can be floated, tested, rejected, revisited, and discussed, without fear of public embarrassment or ridicule (or evidentiary penalty should a trial result). And, the extent of confidentiality of any mediated agreement can itself be mediated – what the parties be allowed to say about the results of the discussion, the agreement, olive branches extended and accepted, are all within the control of the parties themselves.
Although not yet a staple of sports disputes as it is in other business cases, mediation is nonetheless gaining a toehold in sports. Most would agree that it is an emerging and effective method for many sports and sports related disputes. In the words of the late Judge Keba Mbaye, former President of the International Council for Arbitration for Sport and the Court of Arbitration for Sport, “[M]ediation can be used successfully in a wide range of sports disputes, including an increasing number of commercial and financial ones.”
 Morgan, et. al v. U.S. Soccer Federation, Case No. 2:19-CV-01717, U.S. District Court, Central District of California, Western Division (2019)
 Megan Rapinoe One-on-One, Anderson Cooper 360 (July 9, 2019).
 Kevin Baxter, U.S. Soccer and USWNT players agree to mediation over pay dispute, Los Angeles Times, June 22, 2019, https://www.latimes.com/sports/soccer/la-sp-us-soccer-uswnt-pay-dispute-mediation-20190622-story.html.
 See, e.g., Des Bieler, Senate bill would block federal funds for 2026 World Cup until USWNT gets equal pay, Washington Post (July 9, 2019).
 USWNT’s Megan Rapinoe slams FIFA’s ‘unbelievable’ scheduling and pay disparity | Women’s World Cup, youtube.com (2019), https://www.youtube.com/watch?v=rbqYMGcwmoo (last visited Jul 10, 2019)
 “Mediation is a flexible, non-binding, confidential process in which a neutral person (the mediator) facilitates settlement negotiations. The mediator improves communication across party lines, helps parties articulate their interests and understand those of their opponent, probes the strengths and weaknesses of each party’s legal positions, identifies areas of agreement and helps generate options for a mutually agreeable resolution to the dispute. A hallmark of mediation is its capacity to expand traditional settlement discussion and broaden resolution options, often by exploring litigant needs and interests that may be formally independent of the legal issues in controversy.” Federal District Court of California (Central), General Order 11-10, §4.2. Note that while L.R. 39.1 for federal district courts in Washington State does not contain the same language, Washington has codified mediation in civil cases: “’Mediation’ means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” Rev. Code Wash. (ARCW) § 7.07.010.
 Ryan Lake, USWNT Fight For Equality In The U.S. While Taking On The World In The World Cup, Forbes, 2019, https://www.forbes.com/sites/ryanlake/2019/07/02/uswnt-fight-for-equality-in-the-us-while-taking-on-the-world-in-the-world-cup/#f99d9647b682.
 Hon. Nancy Holtz, Reframe the Game: A Winning Paradigm for Mediating Sports Cases, Entertainment and Sports Lawyer(2017), https://www.jamsadr.com/files/uploads/documents/articles/holtz-entertainment-and-sports-lawyer-reframe-the-game-a-winning-paradigm-for-mediating-sports-cases-2017-fall.pdf.
 Id., quoting Ian Blackshaw, Mediating Sport Disputes: National and International Perspectives (T.M.C. Asser Press 2002).