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As she made clear in an exclusive Sportico interview in March, Hope Solo hasn’t given up the fight over alleged pay discrimination in women’s soccer.
Last week, the former USWNT goalkeeper and two-time Olympic gold medalist formally objected to the tentative settlement reached by USWNT players and U.S. Soccer in February. If approved at a Dec. 5 court hearing in Los Angeles, the settlement would pay the players $22 million—minus about $7.9 million in attorneys’ fees and litigation costs and paid over more than three years via four interest-free installments. U.S. Soccer must also spend another $2 million on post-career planning and other initiatives. The players had sought more than $66 million.
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Solo laid out her objections in an Oct. 11 court filing in Los Angeles, where two years ago federal district Judge Gary Klausner granted summary judgment for U.S. Soccer. USWNT players then appealed to the U.S. Court of Appeals for the Ninth Circuit before settling.
Solo has been part of two cases over alleged pay discrimination, with U.S. Soccer accused of violating Title VII and the Equal Pay Act. Although former teammates Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and Carli Lloyd attracted national headlines and cheers from politicians for the Los Angeles litigation, Solo sued U.S. Soccer on essentially the same grounds in San Francisco seven months earlier—with neither the same fanfare nor acclaim. Solo’s case is on hold pending resolution in the Los Angeles case.
Through her attorney, A.J. de Bartolomeo, Solo sees the terms of the settlement as unlawfully insufficient and ambiguous. She argues that the proposed distribution of settlement funds “fails to provide any details or clarification” and leaves players left to wonder how much each will actually get.
The class notice tells settlement members the distribution will be conducted “fairly” and that each member “will receive a pro rata share” of the funds “based on their pro rata share of the total damages Plaintiffs sought in this lawsuit based on their expert’s calculations.” Solo argues this description is overly vague since it is “silent as to either the dollar amount of the expert’s damages calculations, or the pro rata share of the total damages sought for each individual Class Member.” She insists that waiting to “sort out” a plan “at some time in the future” deprives class members of sufficient knowledge as to what they’re accepting.
Solo also maintains the portion of settlement funds that would be paid to the attorneys is “unreasonable and disproportionate” and out-of-step with established practice in the Ninth Circuit. The settlement calls for the attorneys to receive 30% of the funds ($6.6 million) and another $1.3 million in litigation expenses, meaning 36% of the $22 million would go to attorneys.
Solo cites case law indicating that 25% is a more appropriate “benchmark for a reasonable attorney fee award” in class actions. She also maintains that in order to prevent a “windfall profit” for attorneys, courts should either adjust the percentage downward or employ the so-called “lodestar method,” where the court multiplies the number of billable hours by a reasonable hourly rate.
In an interview with Sportico, Solo’s attorney Rich Nichols maintained the settlement is deficient and ought to be rejected.
“The standard for acceptability of a class settlement is that payment to each class member should be ‘fair, adequate and reasonable,’” Nichols said. “Hope is a member of the Title VII Class. Common sense dictates that if the settlement does not tell each class member how much they’ll get paid, how can Hope and the USWNT players determine whether or not it’s ‘fair, adequate or reasonable’?”
U.S. Soccer declined to comment on Solo’s objections. In a statement shared with Sportico, USWNT players’ spokesperson Molly Levison said, “This historic resolution has been recognized as one of the greatest victories for equal pay. We look forward to the Court’s final approval hearing for the settlement.”
In coming weeks, attorneys for USWNT players will likely raise legal arguments in court filings that attempt to rebut Solo. They could maintain there is sufficient clarity on the settlement’s structure, that USWNT has been transparent with class members and that the attorneys’ fees are reasonable under the circumstances. Judge Klausner will have substantial discretion in deciding whether to approve or reject. Under the applicable standard of review, he’ll largely focus on whether the settlement provides adequate relief, relies on appropriate calculations and equitably treats class members.
Solo intends to attend the Dec. 5 hearing in Los Angeles, or to have an attorney do so on her behalf. Solo also holds the option of resuming her case. Although she didn’t opt out of the class action for purposes of Title VII claims, she didn’t opt in for purposes of Equal Pay Act claims, meaning she can continue to sue over them. Also, though U.S. Soccer prevailed at the district court level against the class action, Solo’s case is before a different judge, in a different federal district and is not bound by the outcome in the other case. It is conceivable Solo could have more success arguing Equal Pay Act violations than did her former teammates and that other players could join her.
Solo recently resolved an unrelated legal issue when she pleaded guilty to driving while impaired; she received a suspended sentence and a fine. The plea stemmed from Solo being found passed out in her car in North Carolina with her two young children. Solo apologized, calling it, “easily the worst mistake of my life,” and she acknowledged she “underestimated what a destructive part of my life alcohol had become.”
Meanwhile, USWNT reached new CBAs with the women’s and men’s national teams in April. These agreements attempt to resolve the longstanding controversy over pay by featuring what U.S. Soccer called “identical compensation for all competitions, including the FIFA World Cup, and the introduction of the same commercial revenue sharing mechanism for both teams.” The CBAs were a condition of the proposed class action settlement being finalized.
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