The US Soccer Federation filed its opposition to the Women Player's summary judgment motion earlier this week. The Women are suing on equal pay claims. The opposition made a lot of news, none of it good for the USSF. One of the arguments USSF advances is that the men and women play in different sports, that the men face more hostile audiences and that makes their games materially different from (and, I suppose, more challenging) than games the women play. (You can find it about page 14-15.) It is a foolish argument I think, but plenty of people have made that point. The USSF faced a great backlash and the President has now resigned as part of the response. In his resignation announcement, he stated that he had not fully read the opposition brief before it was filed. Also, USSF has moved the work in the case to a new law firm. The case was at Seyfarth Shaw -- the folks who wrote and filed the opposition -- to Latham & Watkins. The news is all about USSF and not much notice has been taken of the legal practice parts of the story.
There are interesting lessons about litigation practice in the story. Assume that the USSF President did not read the brief before it was filed.
Why was that? Did he just not get to it, i.e., Seyfarth Shaw delivered it to me in plenty of time to read but he had other things he thought he has to do and just did not get to it before the deadline for filing? (That certainly happens. I still remember a run-in with inside counsel from 20+ years ago who never responded to drafts and refused to give instructions about what he wanted said at hearings, and then yelled at me when I tried to make things as simple as possible. He was the guy in charge but seemed to think I should decide what his company would say to an order from the court to produce more documents.) Most who have worked in a law firm are familiar with the fire-drills that arise from someone being late on a draft or a client deciding to take a new direction at the last minute. It does not sound like that was the case, or, more to the point, it was not the client who went a new direction.
Did no one at Seyfarth Shaw warn him about the provocative arguments they were making? It is one thing to not advise the client in detail about an argument that the plaintiffs' don't have enough evidence for summary judgment, but something else ( think) not to advise the client to think about an argument that men and women soccer players are in different sports because the men face more people who say mean things about them -- at least when the issue of the case is whether the women are being paid comparably with the men.
Did no one at Seyfarth Shaw discuss with USSF how the argument would appear in the press? Did anyone at the firm even think about the question?
At the moment, it looks like the firm did a poor job. Sometimes clients want idiotic arguments made. Even so, the lawyers should advise the client about the risks of doing so.
Sometimes none of the available arguments are likely to sell to the public. Sometimes the lawyers are limited to arguments that, to be blunt, stink in public. But it is still the job, and right for the lawyer, to make the arguments. Maybe that is the case here -- I do not know much about employment law so I am not judging that. And, I wonder how the oral argument will go. Will the Latham lawyer adopt and defend the arguments of the brief, in total, or try to dump some off as mistakes of prior counsel.
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