Showing posts with label World Cup. Show all posts
Showing posts with label World Cup. Show all posts

Monday, May 4, 2020

UK football letter roils world sport, and real world, too

Letter posted on Twitter by the AP's Rob Harris
The English Premier League football (soccer) organization wrote to the U.S. Trade Representative in February urging that the United States put the Kingdom of Saudi Arabia on the "Priority Watch List" of countries that fail to protect intellectual property (IP) rights.

The letter has been widely reported beyond the football world for its potential implications in foreign affairs.  Where the United States is concerned, IP piracy is regarded as a critical contemporary problem, on par with national security.  Much of that regard is warranted, as countries such as China, at least historically, have been linked to IP theft as a means to unfair economic advantage, to the detriment of American enterprise.  Some of the sentiment derives from the capture of Washington by IP-wealthy corporations, to the detriment of intellectual freedom.  Regardless, the gross result has been a paper war with nations that countenance IP piracy.  To put Saudi Arabia in those U.S. crosshairs adds a layer of complexity to our already impossibly complicated love-hate relationship with the KSA—read more from James Dorsey just last week—with ramifications from Yemen to Israel.

The letter has potential ramifications within the Middle East, too.  The Premier League's indictment calls out specifically a Saudi-based pirate football broadcaster that calls itself "beout Q" and seems to operate in a blind spot of Saudi criminal justice, even distributing set-top boxes and selling subscriptions in Saudi retail outlets.  The name seems to be a thumb in the nose of beIN Sports, a Doha-based, Qatari-owned media outlet with lawful licensing rights to many Premier League and other international sporting matches.  Saudi Arabia has led the blockade of Qatar since the 2017 Middle East diplomatic crisis, a high note of previously existing and still enduring tensions between the premier political, economic, and cultural rivals in the region.

A 2016 Amnesty International report
was not flattering to Qatar or FIFA.
Football and international sport are weapons in this rivalry.  Qatar has long capitalized on sport as a means to the end of soft international power, winning the big prize of the men's football World Cup in 2022, if by hook or by crook.  Saudi Arabia has more lately taken to the idea of "sportwashing" its image, especially since the Jamal Khashoggi assassination and amid the ceaseless civil war in Yemen.

The letter roiled the world of football no less, as Saudi Arabia has been in negotiation to acquire the Newcastle United Football Club.  That purchase requires Premier League approval.  So everyone and her hooligan brother has an opinion about what it means that the league is so worked up about Saudi IP piracy as to write to the United States for help.

This unusual little letter is a reminder of a theme, known to social science and as old as the Ancient Olympics, that, more than mere diversion, sport is a reflection of our world.

Saturday, May 2, 2020

U.S. female footballers suffer slide tackle in equal pay match: Understanding the summary judgment decision

U.S. co-captain Alex Morgan is the first named plaintiff.
(Photo by Jamie Smed CC BY 2.0.)
The women of U.S. Soccer suffered a major setback Friday with an adverse court decision (e.g., N.Y. Times).

The U.S. District Court in Los Angeles awarded partial summary judgment to defendant U.S. Soccer, rejecting the plaintiffs' core claim in the case, pay discrimination against the U.S. women's national team (USWNT) relative to the men's national team (USMNT).   In the complaint filed in March 2019, USWNT players claimed violation of the Fair Labor Standards Act of 1938, as amended by the Equal Pay Act of 1963, and of the Civil Rights Act of 1964, as amended.

The USWNT always faced an uphill battle on the numbers.  To generalize, the women could not deny, they were paid more than the men, dollar to dollar.  The devil lies in what "more" is.

The USWNT has been fantastically successful.  The team has won the World Cup of women's soccer four times, most recently in 2019 in France (I saw a match from a Paris Fan Zone, and my daughter went to one) and won the Olympic gold four times.  The squad has been a global force to be reckoned with since its inception in the 1980s.  Moreover, many a football fan, such as myself, will tell you that the women's talent is a marvel to behold on the pitch, the United States having substantially defined the women's game for the world.

We were in France for World Cup 2019. (CC BY-NC-SA 4.0.)
Direct comparison between women's and men's play is inevitably uneven, because the style of play in the women's game is different from in the men's, apples and oranges.  And worldwide, many soccer-power nations have failed to invest in developing female talent, so any given head-to-head is not necessarily taking place on a level playing field.  Nevertheless, by many a worthwhile measure, including technical proficiency, the women indisputably are better than the men—who failed even to qualify for the 2018 World Cup in Russia.

The women's superiority was exactly their problem in the equal-pay litigation.  A plaintiff bears the burden of making out a prime facie case of pay disparity.  Compensation in professional soccer in the United States is mostly based on the principle of pay for performance.  The women played more than the men and achieved more than the men, so they were paid more.  Their burden, then, was to show, in essence, that their pay rate was relatively lower than the men's.

We win, 2019.  (Photo by Howcheng CC BY-SA 4.0.)
U.S. civil rights law is, thankfully, sufficiently sophisticated to account for disparity based on pay rate.  As U.S. District Judge R. Gary Klausner explained in the instant case, quoting precedent, it can't be that "an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA ... as long as the woman negated the obvious disparity by working twice as many hours."  However, the parties disagreed about how to calculate rate so as to compare apples to apples.

Hardening defenses on their polar positions, each side posited a favorable calculation.  Plaintiffs urged the court to look at women's compensation through the lens of the men's contract.  If the women had won the World Cup, etc., under the men's contract, they would have been far more richly rewarded.  Defendant U.S. Soccer urged the court to look at the numbers in gross.  The women simply make more than the men, and even though the women play more matches, they make more than the men on a per match basis, too.

Both positions are counterarguable.  The women's and men's contracts are both the result of collective bargaining, and a lot goes into a bargaining contract besides its raw numbers.  Simply pumping the women's performance statistics through the men's contract formula ignores the broader context of each contract, or collective bargaining agreement (CBA), and the inter-dependency of its compensation formula with other bargained-for terms: like squeezing an apple with an orange juicer.

New York ticker-tape parade for the USWNT, 2015
At the same time, the women's argument in converse challenges the defendant's attempt to aggregate numbers.  Maybe the women are paid more per match because they are better soccer players, which the evidence supports.  That doesn't mean that they are paid so much more per match relative to the disparity in talent and achievement between the women and the men.  To analogize, oranges might cost more than apples because oranges taste twice as good.  But an orange for $1.20 is still a bargain relative to an apple for a dollar.

The court's recitation of the women's collective bargaining process is painstaking, packing in plenty of detail for those who want it.  In sum, considering that the plaintiffs bear the burden to make out a prima facie case of discrimination, the court found the defendant's position more persuasive.  The contractual context was really the clincher.  Judge Klausner wrote (footnotes omitted):
This history of negotiations between the parties demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to-play structure when they themselves rejected such a structure. This method of comparison not only fails to account for the choices made during collective bargaining, it also ignores the economic value of the "insurance" that WNT players receive under their CBA. 
[¶] One of the defining features of the WNT CBA is its guarantee that players will be compensated regardless of whether they play a match or not. This stands in stark contrast to the MNT CBA, under which players are only compensated if they are called into camp to play and then participate in a match. ... [T]here is indisputably economic value to this type of "fixed pay" contract, as compared to a "performance pay" contract.  Merely comparing what WNT players received under their own CBA with what they would have received under the MNT CBA discounts the value that the team placed on the guaranteed benefits they receive under their agreement, which they opted for at the expense of higher performance-based bonuses.
There are problems with the court's approach, including prominently that there are systemically discriminatory reasons that the women elected for the terms they did.  Many male players are able to make a living as athletes, so playing for the national team is a bonus.  Women's soccer meanwhile has faltered as a nationwide business model, for arguable reasons that must include the ingrained underdevelopment of women's athletics.  That makes it harder for a woman than for a man to play at the national level, even if the two squads have the same number of seats.

USWNT selfie with the President, 2015 (White House photo)
Consider that a man who plays professional soccer is incidentally training for the U.S. national team while he's at work.  And his day job gives him time off, sometimes months, to play for the national team.  A woman with a collateral occupation that is not professional soccer cannot invest the time and energy in the physical training and playing time required to be a globally competitive athlete.  Of course, some women do find work in professional soccer, but far fewer than men who do.  Characteristically, the USWNT's star players bargained for better job security not just for themselves, but to support their teammates.  And that's not all selflessness; their investment in part explains the ongoing developmental success of the USWNT over athletic generations.

That doesn't mean Klausner is wrong on the law.  The facts of the case show something we already know, which is that historically rooted discrimination can persist well beyond demonstrable intention, is exceptionally resistant to eradication, and is more susceptible to redress socially and politically than judicially.  There are good reasons why the standard to establish a civil rights violation of federal law is high.  Failure to surmount that bar in court does not establish that the plaintiff is right or wrong as a social or moral matter.

Federal courthouse in Los Angeles (Photo by Los Angeles CC BY-SA 3.0)
There were other claims in the case, and the plaintiffs' cause is not formally over, even notwithstanding appeal.  The court's treatment of the plaintiffs' claim of discrimination in turf is a worthwhile read.  Female footballers often play on artificial and unstable surfaces, resulting in physical injury and career wear and tear, while the USMNT always plays on grass.  Despite the disparity in fact, the plaintiffs were unable to prove the discriminatory motive, or intent, that civil rights law requires.

The women's case persists upon some ancillary claims related to fringe benefits, such as better hotels and more frequent charter flights for the men's team than for the women's.  There might not be enough there for the women to want to keep the litigation going.  Plaintiffs probably will ask Judge Klausner to allow interlocutory appeal to the Ninth Circuit directly from this partial summary judgment, and I expect he will.

The case is Morgan v. U.S. Soccer Federation, No. 2:19-cv-01717 (C.D. Cal. May 1, 2020).  Court Listener has the key documents.

Sunday, September 18, 2016

“A Fair Shake for the Sheikh,” or “Cut Qatar Some Slack”: On World Cup 2022



My photo at a Qatar Stars League double header in March 2016: Empty stands tell the tale of native public interest in football.  However, Prof. Susan Dun reported that populous foreign laborers do pack matches for the leagues they follow: another piece of the untold story in Qatar.

I was just in Oxford, UK, for “Sport 5.”  (The full name of the conference, sponsored by Inter-Disciplinary.Net, is in the previous post about my contribution there.)  I tweeted some of the highlights of Sport 5 (link to Twitter from the ribbon atop this page, Sept. 13-15, 2016).  I want to share a bit more about one paper at Sport 5 that stood out for its unconventional thesis.  The paper came from this year’s conference coordinator, Professor Susan Dun, a communication scholar at Northwestern University in Qatar.

I don’t want to steal Dun’s thunder or evidence, so I’ll give only cursory treatment to her thesis and outline three rationales that I found persuasive.  My own impressions have mixed with recollection, so blame me for any misstatements.

In essence, Dun posited that however much Qatar deserves condemnation for corrupt dealings with FIFA (see generally Blake & Calvert’s The Ugly Game), the ills of the kafala labor system, or dreams of air-conditioned desert stadiums, the regime is not getting a fully fair shake in global perception.  She made a compelling case, and activists, journalists, and scholars investigating the social and economic implications of the upcoming World Cups in Russia 2018 and Qatar 2022—myself included—should take note.

First, Dun placed the Qatari bid for 2022 in the context of Qatar’s ambitious struggle for political legitimacy through soft-power sport.  In its rush onto the world stage, Qatar was not ready for intense scrutiny and scathing criticism that accompanied the award (and then was amplified by the FIFA corruption fiasco, pointed out David Storey of the University of Worcester, who, by the way, presented a fascinating paper on the GAA).  Within Qatar, criticism of Al Thani leadership is not just legally problematic, but socially taboo.  So Qataris were utterly ill equipped to respond to an external public relations crisis in a way that would have seemed natural to Western observers—with press conferences, collaborative inquiries, and affirmative information dissemination.  Instead Qatar took an outmoded defend-or-deny stance, which only bloodied the waters.

Second, Dun explained that Qatar actually implemented a great many reforms to redress exposed deficiencies, for example, illegalizing passport retention and improving living conditions for foreign laborers.  The communications failure has meant that reform stories have not gotten much play.  Meanwhile, reform has been slowed by understandable challenges.  Employers might still seize passports.  Wrangling the middlemen is a laborious process in part because rapidly developed Qatar lacks regulatory and enforcement mechanisms that Westerners take for granted in key areas, such as workplace safety and banking.  Communications failure again means that these impediments are not explained.  Reform is necessarily incremental, but unresolved problems on the ground are misconstrued to signal government indifference, if not malice.

Third, Dun documented a media affection for criticism of Qatar.  In part the penchant seems driven by ignorance.  Journalists, bloggers, et al., tend not to be familiar with Qatar, so are more likely to republish judgmental commentary without critical analysis for fairness and accuracy.  I suspect that hostility toward a wealthy Islamic state in the post-9/11 era also plays a role.  Again, communications failure exaggerates the problem.  Dun gave evidence that even Russia is more likely than Qatar to get a fair shake in media coverage.  I can attest that in my own research, I only recently read about changes in Russian labor law—allegations not unlike those that have plagued Qatar for years—to hasten World Cup infrastructure development at the expense of worker rights.  (See Martin Müller, How Mega-Events Capture Their Hosts: Event Seizure and the World Cup 2018 in Russia, Urban Geography, 2015, doi).

Dun got push-back in discussion with Sport 5 attendees, but she held firm.  To be clear, Dun makes no motion whatever to justify human rights abuses; quite the contrary.  She simply laments that the whole story of Qatar's reform is not being told.  It would be a mistake to pull the World Cup from Qatar, she says, because there are desirable reforms occurring that should not be undermined.  (This is happily consistent with Benavides and my extension in World Cup Dreaming of Jeremiah Ho's incrementalist theory).  She makes that case well enough that those of us who fancy ourselves objective observers should pay attention.

Thursday, September 15, 2016

The World Cup of Human Rights?



I prepared this map for the Inter-Disciplinary.Net conference, Sport: Sport Places, Money, and Politics, the 5th global meeting of the Sport Project: Probing the Boundaries, this week at Mansfield College, Oxford. The map shows the movement of the FIFA Men's World Cup since the United States in 1994, illustrating FIFA's deliberate campaign to globalize the tournament and the sport.

In my talk yesterday, I traced the marriage of FIFA and human rights from Football for Hope investments in World Cup 2010 South Africa, to World Cup 2014 Brazil; on to World Cup 2018 Russia and World Cup 2022 Qatar; and at last, to a World Cup 2026 that might embrace the U.N. Guiding Principles on Business and Human Rights in the manner proposed by Professor Ruggie.

Daunting challenges are presented with respect to international legal norms on housing, labor, sexual identity, racism and equality, due process and criminal punishment, and religious and expressive freedom. FIFA's extreme demands on host countries for infrastructure development, commercial protectionism, and security have made tournament hosting more easily the province of authoritarian regimes than of Western-style democracies, and that tendency works at cross-purposes with the incorporation of human rights norms in the Western legal tradition.