Wednesday, March 21, 2018

The Revenue Red Herring in the US Soccer Equal Pay Dispute

Yesterday, Hope Solo visited my big class at the University of Colorado, Introduction to Sports Governance, and discussed the equal pay issue that is currently the subject of an Equal Employment Opportunity Commission dispute between  a group of US women soccer players and the US Soccer Federation.

In this post I'll discuss what I believe to be the central red herring at the center of this dispute: the idea that differential revenues attributed to men's and women's teams should be used as a basis for the differential compensation of individual athletes under US Olympic sport national governing bodies. Before I proceed, let me emphasize that this post reflects a policy analysis, and not a legal analysis. I'm a policy professor, not a lawyer.

The issues are complex, but let's start with the relevant organizations. The US Soccer Federation is one of 47 organizations in the United States that serve as a "national governing body" for an Olympic sport. USSF exists under US law, the so-called Ted Stevens Olympic Act (or Amateur Sports Act of 1978).  The Stevens Act (here in PDF) created an organizational framework for Olympic sports, centered on the US Olympic Committee and the establishment of national governing bodies for individual sports.

Among the goals of the Stevens Act are:
to obtain for the United States, directly or by delegation to the appropriate national governing body, the most competent amateur representation possible in each event of the Olympic Games, the Paralympic Games, and Pan-American Games.
It would seem fairly obvious that by "most competent representation possible" the law is referring to sporting competence as exhibited in international competitions. We want athletes who are the world's best, who can win tournaments and medals. That is what the Olympics are about and medal counts are, for better or worse, an important criterion in how national governing bodies are judged.

In their pursuit of sporting success, the Stevens Act imposes certain legal requirements on the USOC and national governing bodies, among them:
For the sport that it governs, a national governing body shall provide equitable support and encouragement for participation by women where separate programs for male and female athletes are conducted on a national basis.
This requirement is unambiguous, though lawyers surely will no doubt parse the precise meaning of "equitable support and encouragement." For purposes of this discussion, let's define "equitable support" in financial terms as "roughly equal" with "equal" defined as a mathematical term that can be measured in dollars and cents.

The EEOC complaint filed in 2016 (here in PDF) by several US women soccer players alleges that the compensation for women US national team players "pales in comparison" to that of US men's national team players. The complaint lists a long set of issue for which men and women are compensated differently (at the time of the filing), ranging from the World Cup competitions to daily per diem rates (e.g., men get $75 per day internationally, women get $60).

In a response to the EEOC filing, lawyers for the USSF focused on the relative revenues generated by each team of players as a primary basis for their argument against the complaint. The USSF acknowledges that there may be disparities in pay, but argues that these differences are justified based on differential "production."
. . . to the extent that there are differences in compensation paid to WNT and MNT players, those differences do not establish a violation of Title VII or the Equal Pay Act. Under both statutory schemes, where a payment that differs by gender is being made “pursuant to … (iii) a system which measures earnings by quantity or quality of production[] or (iv) a differential based on any other factor other than sex,” there is, by definition, no violation.
This is important.

The USSF is defining "production" in terms of dollars generated by each team, and not by sporting success. The primary justification offered by USSF for any differences in compensation is: "the greater amount of revenue produced by the MNT."

Further, the players, both men and women, seem to have accepted through their players associations that negotiate collective bargaining agreements governing compensation that revenue should be used as a metric of compensation. The USSF response to the EEOC complaint explains:
With respect to the MNT and WNT, the compensation paid each team is based, in part, on predictions regarding the revenue that each team will generate over the course of the collective bargaining agreement.
The USSF invokes an analogy to make its point:
[A]ssume that Player A and Player B are wide receivers of different races playing for the same professional football team. Suppose further that Player A had consistently produced more yards and touchdowns than Player B, and received a more lucrative contract as a result. The fact that Player B came to outperform the Player A over the term of the contract would not remotely suggest in hindsight that the original contracts were the product of a racially discriminatory motive.
From its response, it seems pretty obvious that the USSF is overseeing the US men's and women's national teams as if they were independent professional franchises. (There are important legal points about employees of the same organization doing the same work, that I won't get into here.)

The professional sports analogy used by USSF is simply misplaced. The USSF is a non-profit which operates under the Ted Stevens Act. While it needs revenues to do its work, such revenues are always to be a means, not an end. Under the Stevens Act (here in PDF) the USOC can provide "financial assistance to any organization or association, except a corporation organized for profit" and "may not engage in business for profit." From a legislative perspective, profits are not the point of Olympic sport.

To the extent that USSF views US national soccer teams as businesses generating profits, and uses those profits as the basis for compensation, it may be in violation of the legislative intent of the Stevens Act governing Olympic sports. Recall that among the legislated goals of a US Olympic sport national governing body are to provide "competent representation" (which means success in the World Cup, the Olympic games and other competitions under the Olympic Movement) and "equitable support and encouragement."

With apologies to Gene Hackman in Unforgiven, revenue's got nothing to do with it.

The relative revenues generated by men's and women's national team should have no bearing on their relative compensation. USSF is not a for-profit business. Soccer players who compete in international competitions produce primarily sporting successes (and losses). The revenues that they generate contribute to support the work of the non-profit, but the revenues should always be viewed as a means to achieving "competent representation." It is worth noting that US Soccer has as much as $140 million sitting in reserve, which dwarfs the size of both the EEOC claim and providing the futureequal compensation.

And crucially, under the law, men's and women's national soccer teams are legally required to be treated equitably from a sporting perspective, with no footnote or clause that says equity can be ignored due to revenues or anything else.

So the bottom line here is that the women soccer players' EEOC complaint is in fact flawed. It is flawed not because they are wrong about equal compensation -- they got that right. The complaint is wrong because it has not gone far enough.

Consider overall investment in men's and women's national teams: The data below come from 2013 and  2014, but they are illustrative.

Whatever the relative profits of the US MNT and WNT, data consistently show that the USSF invests less in the WNT versus the MNT. This disparity would seem to be fundamentally at odds with the legislated objectives of the Ted Stevens Act which governs USSF.

To sum up, issues of equal pay in US Soccer are currently playing out in the legal system. However, with Congress now paying greater attention to USOC and its associated national governing bodies, a more appropriate venue for resolving this issue may be through the legislative process

US Soccer is treating the US men's and women's national teams as cost centers that generate profits to justify differential treatment. Not only is this possibly illegal (we shall see in due course), it is all but certainly in violation of the intent of the Ted Stevens Act. 

If athletes also treat the USSF as a professional sport organization, they cede important ground. Consider for instance a court decision in response to a call for dismissal of the EEOC complaint only references the Ted Stevens Act in passing, here in PDF, and proceeds to characterize the USSF as if it were a professional franchise owner.. 

National soccer teams are not professional franchises. Their relative revenues and profits are a red herring. Athletes and their representatives would be on firmer ground if they rejected relative revenues as a legitimate basis for securing athlete payment. USSF is a non-profit under the Stevens Act and is bound to treat men and women equitably. That is the legislated intent of the US Congress and it is time for USSF to be held to that standard. 

Thursday, March 1, 2018

Sexual Abuse Allegations at US Olympic Sports Organizations

There are a large number of sexual abuse allegations against officials in US Olympic sports bodies. While those against Larry Nassar and USA Gymnastics are the most widely publicized, there are many others. This tabulation is for my own use, but hopefully of use for others as well.

The Washington Post reports:
More than 290 coaches and officials associated with the United States’ Olympic sports organizations have been publicly accused of sexual misconduct since 1982, according to a Washington Post review of sport governing body banned lists, news clips and court records in several states. The figure spans parts of 15 sports and amounts to an average of eight adults connected to an Olympic organization accused of sexual misconduct every year — or about one every six weeks — for more than 36 years.
Here is an initial tally of media reports (updated 15 March 2018):
If you have further pointers, please suggest in the comments or send me a DM, and I'll update.

Further reading:

Haley O. Morton, License to Abuse: Confronting Coach-Inflicted Sexual Assault in American Olympic Sports, 23 Wm. & Mary J. Women & L. 141 (2016). (PDF)

Tuesday, February 27, 2018

Critiques of Bermon and Garnier 2017 (related to Chand vs IAAF)

A new paper was published today with a strong critique of the IAAF study on testosterone and female elite athletes. 
Franklin S, Ospina Betancurt J, Camporesi S What statistical data of observational performance can tell us and what they cannot: the case of Dutee Chand v. AFI & IAAF Br J Sports Med Published Online First: 23 February 2018. doi: 10.1136/bjsports-2017-098513
That paper concludes:
we believe that it is scientifically incorrect to draw the conclusions in the Bermon and Garnier paper from the statistical results presented. Their paper claims that certain athletes have an advantage in precisely the five events where a significant effect was found: we calculate that a high share of those five significant effects are likely to be false positives.
An earlier critique was provided by statistician Andrew Gelman:
the statistical analysis data processing in this paper is such a mess that I can’t really figure out what data they are working with, what exactly they are doing, or the connection between some of their analyses and their scientific goals. 
Gelman was motivated by Simon Franklin, a post-doc at LSE, who emailed him that:

There are more than a few problems with the paper, not least the fact that it makes causal claims from correlations in a highly selective sample, and the bizarre choice of comparing averages within the highest and lowest tertiles of fT levels using a student t-test (without any other statistical tests presented).

But most problematic is the multiple hypothesis testing. The authors test for a correlation between T-levels and performance across a total of over 40 events (men and women) and find a significant correlation in 5 events, at the 5% level. They then conclude:
Female athletes with high fT levels have a significant competitive advantage over those with low fT in 400 m, 400 m hurdles, 800 m, hammer throw, and pole vault.
These are 5 events for which they found significant correlations! And we are lead to believe that there is no such advantage for any of the other events.
I also have written two critiques. First, a post-publication peer review:
My bottom line: The paper has some significant methodological issues, most notably the inclusion of female athletes who doped with those with naturally high levels of T. There is some double counting of athletes in 2011 and 2013. There is also speculation that the male findings are contaminated by doping. Methodological issues notwithstanding, the paper nonetheless strongly reinforces the 2015 CAS Chand decision. 
 And second, a short data analysis of their reported findings.

The Bermon and Garnier paper clearly has some methodological issues. However, even taken at face value it does not support the IAAF case against Dutee Chand. CAS continues to dither over the arbitration nonetheless. It is time to send it back to IAAF and ask them to start again.

Sunday, February 11, 2018

ISG 2018: Bonus Class Materials #2

This week -- meetings 9 & 10 -- we continue a short unit on sport and social movements. Here is some material from the syllabus plus bonus material for the week ahead.

Our class is a part of the Inclusive Sport Summit taking place on campus this week (props to Medford Moorer for making it happen with CU Athletics and Recreation Services). Here is the schedule for the ISS on Wednesday and Thursday. Note that it is open to the general public.

The Thursday closing session will feature Solomon Wilcots (CU Buff, NFL, CBS and now Sky Sports) and Jim Trotter (ESPN, Sports Illustrated), along with Professor Nancy Lough (UNLV). NOTE that it will be in the Touchdown Club in Dal Ward.

On Tuesday, in addition to a scheduled quiz, we will have a final look at the Russian doping saga with a discussion of tonite's 60 Minutes episode featuring Grigory Rodchenkov.

We will also start a discussion of Colin Kaepernick, Donald Trump and the NFL. I'll give a mini-lecture on propaganda.

Here are this week's readings:

Bonus material will be suggested in class.

Monday, February 5, 2018

ISG 2018: Bonus Class Materials #1

I have promised my students in Introduction to Sports Governance some bonus materials related to class discussions that we won't be able to get into in any depth. There is a lot going on in sports governance right now (safe understatement). Here are some bonus items:
We have three Olympians visiting class tomorrow, here are some highlights of their careers in and out of sport:

Casey Malone on discus:

Mara Abbott on her broken heart following Rio:

Kara Goucher as an anti-doping whistleblower:

Wednesday, January 24, 2018

Unsolicited Advice for USOC After Nassar

The events today in a Michigan court room were remarkable, as sexual predator Larry Nassar was sentenced to up to an additional 175 years in prison. In the aftermath of the sentencing the US Olympic Committee, which has oversight responsibilities of USA Gymnastics under us law (the so-called Ted Stevens Act of 1978), released a letter to athletes.

In the letter USOC says the following:
The USOC has decided to launch an investigation by an independent third party to examine how an abuse of this proportion could have gone undetected for so long. We need to know when complaints were brought forward and to who. This investigation will include both USAG and the USOC, and we believe USAG will cooperate fully. We will make the results public.
Nobody asked me, but here is some independent advice to USOC.

1. How USOC handles this investigation is incredibly important, for making things better, for its reputation and for its legitimacy in the eyes of athletes.

USOC gets one shot at this and one shot only. The way forward is a minefield with lots of potential for missteps. Here are some recommendations based on my observations of many, many investigations by sports organizations.

2. The choice of "independent third party" is absolutely essential.

No details are provided, but it would seem obvious that absolutely no one from the Olympic "family" should be involved in the investigation. No one. Independent must mean independent. USOC should have no role in selecting the members of the investigative team. USOC should pay the full cost.

One suggestion is to follow the model of the Mitchell Report (full name: "Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball") which was called for and paid for by Major League Baseball.

George Mitchell recently explained how it came together in a way that was truly independent:
[MLB commissioner] Bud Selig deserves great credit for his courage. He was the only commissioner of a professional sport in the United States who had the courage to authorize a completely independent investigation. I made it clear to him in our first conversation that I would do this only if I had his commitment to my full and total independence. He unhesitatingly gave it, and he kept his promise. That's to his great credit.
It also worked because, well, George Mitchell is George Mitchell. (I had the pleasure of spending a day with him a few years ago when I was the "George Mitchell lecturer" at the University of Maine. He is the real deal.)

Who might USOC turn to? Some suggestions:

Condoleeza Rice is at the top of my list. She is a diplomat, knows sports and is above reproach. If not her, then someone of similar stature (of which there are very few). George Mitchell is on the list also.

Alternatively, USOC could turn to Congress for help, for instance by making an appeal to the two senators from Colorado (where USOC is headquartered), one a Republican and one a Democrat. Congress has ultimate oversight responsibilities for USOC and could empanel and support the work of an investigation (e.g., via hearings). The risk of course is that involving Congress could lead the issue to become politicized in today's hyper-partisan environment. Another risk is that Congress is just too dysfunctional to take it on .

Of course, Congressional action might preempt USOC anyway (in which case it would be in USOC's interests to just get out ahead). Senator Jean Shaheen (D-NH) has already suggested such, and the train may be leaving the station.

Either way, I'd recommend Condoleeza Rice, regardless who empanels the committee.

3. The investigation must be about more than who knew what, when.

Yest, that should be part of it, of course. But an equally important question is who didn't know what, when. If USAG or USOC officials did not know about the years of abuse, then why didn't they? What went wrong? Clearly, both organizations should have known a long time ago and stopped it.

A limitation to such an investigation is that absent a Congressional role, there will be no subpoena power or ability to compel evidence from witnesses. Mitchell had this problem in his steroid investigations, but his efforts were was helped along by a few athletes who were willing to speak and a parallel federal investigation.

If USOC has not already acted to secure official communications of (all) USAG and (relevant) USOC staff, such as emails, phone messages etc. then it is already too late. USOC needs to be acting as if a major investigation is already underway, and not wait until it is.

4. Finally, USOC should go ahead and decertify USAG. 

In its letter today USOC said:
We have strongly considered decertifying USAG as a National Governing Body. But USA Gymnastics includes clubs and athletes who had no hand in this and who need to be supported. We believe it would hurt more than help the athletes and their sport. But we will pursue decertification if USA Gymnastics does not fully embrace the necessary changes in their governance structure along with other mandated changes under review right now.
This is weak.

Given the scope of the abuse, USAG needs to be rebuilt from the ground up in the aftermath of an independent investigation. Decertification would mean, in effect, putting USAG into a form of receivership and managed by USOC. Yes, this would be challenging and take a lot of effort.  However, it could be done in a manner that limits impacts on athletes and the sport.

Crucially, it would be the right thing to do, and help to restore credibility in the sport and the institutions that govern it. It would send a signal that fixing things is ultimately more important than sport victories. If there is some disruption involved in making things right, then that is a price worth paying.

USOC can be sure that people like me -- well outside their "family," and people like Aly Raisman -- who has called for such an investigation as someone well inside the Olympic "family," will be paying close attention to how this independent investigation proceeds. There won't be a lot of generosity towards USOC if they botch this.

What they do next really matters. We are all watching.