What does the U.S. women's national team's new gender discrimination lawsuit against U.S. Soccer mean in the fight for equal pay? Take a closer look at what the players are asking for and how the federation will likely respond.
The multiyear legal fight over pay equity for U.S. women soccer players escalated on Friday when Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and 25 other players on the U.S. women's national team sued the U.S. Soccer Federation in federal court. The players contend that the federation and its leaders have engaged in a pervasive pattern of gender-based employment discrimination, which the players say is most glaringly apparent in the form of wage disparities. The players seek to have their case be certified as a class action to include all USWNT players since 2015.
The filing coincides with the March 8th celebration of International Women’s Day, which reflects on the accomplishments of women across all industries and professions. It comes days after the conclusion of the U.S. Soccer-hosted SheBelieves Cup, a tournament centered on women's inspiration and empowerment on and off the field.
The USSF (not to be confused with the similar-sounding but very different U.S. Soccer Foundation), is a 501(c)(3) not-for-profit entity that employs more than 500 people. Those employees include all current and former members of the men’s and women’s national teams. The players depict the USSF as engaged in gender discrimination on the basis of pay and other conditions of employment, including allegedly substandard travel accommodations and training conditions. Although the magnitude of pay disparity depends on method of calculation and context of the data, USWNT players have been paid less than male counterparts on the U.S. men's national team. In certain situations, the complaint contends, USWNT players earn just 38% of what USMNT players earn.
Lower pay for USWNT players is difficult to reconcile with the fact that the team is generally considered the world’s best and most marketable in women’s soccer. Since the first FIFA Women’s World Cup was held in 1991, the USWNT has won three of the seven titles (1991, 1999, 2015). The USWNT will seek its fourth this summer at the 2019 Women's World Cup in France.
In contrast, USMNT has never won a World Cup, and when compared to the typically excellent performances of the USWNT, the USMNT has achieved inferior and inconsistent results in other international competitions. But there's more to the case than just on-field results. Here's a closer look at the USWNT's aim and how U.S. Soccer might respond.
Understanding the legal claims and legal strategy
The 28 players contend that USSF is in violation of two federal laws—the Equal Pay Act and Title VII of the Civil Rights Act of 1964–the same assertions made by former U.S. goalkeeper Hope Solo in an August 2018 federal lawsuit that was filed in California and remains pending.
The Equal Pay Act, which became law in 1963, prohibits employers from wage discrimination on the basis of sex. Employers, therefore, cannot pay women lower wages than men for equal work. A comparison of “work” is not always straightforward. It involves careful analysis of relevant job descriptions and assessment of whether the jobs require equal skill, effort and responsibility and are performed under similar working conditions.
The Equal Pay Act does not automatically obligate employers to pay men and women employees the same wages. Sometimes there are lawful explanations for differing wage rates. This is particularly true when an employer can explain such discrepancies as emmanting from a seniority system, a merit system, or a system that measures earnings “by quantity or quality of production.” In other words, women employees being paid less does not, by itself, prove that the employer is breaking the law. The employer, however, must show that the difference is explainable on account of a non-discriminatory reason or reasons.
Title VII is similar to the Equal Pay Act in that it prohibits employers from paying workers differently because of their sex. Like with the Equal Pay Act, an employer may be able to prove it has not violated Title VII if there are lawful reasons for the pay disparity.
As authored by Jeffrey Kessler, David Feher, Diana Hughes Leiden and other attorneys at Winston Strawn, the 28 players’ complaint contends that there are no lawful reasons for a wide disparity in pay. The complaint charges that USSF pays women’s players decidedly less than male players “for substantially equal work.” In addition, USSF allegedly denies women players “at least equal playing, training, and travel conditions; equal promotion of their games; equal support and development for their games; and other terms and conditions of employment.”
The complaint offers a series of data points to attempt to prove that a wide pay disparity exists between USWNT and USMNT players and that such a gap can’t be explained away by claims of innocent phenomena.
For instance, the complaint charges that “if each team played 20 friendlies in a year and each team won all 20 friendlies, female WNT players would earn a maximum of $99,000 or $4,950 per game, while similarly situated male MNT players would earn an average of $263,320 or $13,166 per game against the various levels of competition they would face.” According to this data, “a 20-game winning top tier WNT player would earn only 38% of the compensation of a similarly situated MNT player.” Think about this assertion: a women player, according to this data, earns just 38% of a male player for the same kind of work.
The complaint also stresses that USWNT players are more accomplished and acclaimed than their male counterparts. In addition to their aforementioned World Cup success, the women players have won four Olympic Gold medals, are three-time winners of the U.S. Olympic Committee’s Team of the Year Award and were named SI’s Sportsperson of the Year for 1999. They have attracted impressive TV ratings, with the 2015 World Cup final garnering 23 million viewers and thus becoming the most watched soccer game in American TV history. The success of the USWNT has led to “substantial profits” for USSF, which USWNT players contend has unjustly stockpiled away at the players’ expense.
The 28 players seek a jury trial to resolve their claims. They also request that their claims be brought as a class action under Title VII. Petitioning for class certification involves a multi-step legal process under Rule 23 of the Federal Rules of Civil Procedure. A federal judge will need to assess the typicality and commonality of the players’ claims and judge whether they sufficiently relate to other USWNT players. In this litigation, class certification likely won’t be determined for months, if not years. If the lawsuit is eventually certified as a class, the number of plaintiffs would increase from the current list of 28 persons. The proposed class would include all current and/or former USWNT players since February 4, 2015, plus players who join USWNT by the time the case is resolved (which could be years from now).
In terms of requested relief, the 28 players seek several categories of financial compensation. They include back pay, front pay, the financial value of lost job benefits, punitive damages reflecting just punishment of U.S. Soccer, and attorneys’ fees. The players do not specify a total amount of damages, but their extensive list of alleged financial harms suggests the dollar amount would be in the tens of millions of dollars. In addition, the players demand a permanent injunction to prevent USSF from any further (alleged) discrimination.
For those fearing a potential player strike just three months out from the Women's World Cup, the lawsuit is not expected to lead to a work stoppage. The USWNT can, and will, continue to play while the players’ attorneys handle the litigation.
How the new lawsuit relates to past EEOC charge
If the commentary above sounds familiar, it is because similar legal and factual arguments were raised by USWNT players in 2016. In March of that year, five USWNT players filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission on behalf of themselves and similarly situated players. The players argued—just as they have argued in Friday’s lawsuit—that USSF violated Title VII on the basis of pay.
The reason for the EEOC filing was in part administrative. Under federal law, a charge of discrimination is a necessary procedural step before a federal discrimination lawsuit can be filed against an employer. An employee must exhaust his or her potential remedies through the EEOC, which is the federal agency that enforces anti-discrimination laws, before turning to the courts.
The filing of a charge sparks an investigation by the EEOC. Although the investigation’s records into USSF are not public, the investigation almost certainly involved a government investigator compiling information, accessing records and detailing other evidence from both the players and USSF. The EEOC sought to assess why the pay disparity between men and women’s players exists and whether USSF can offer justifiable explanations related to the computation of wages.
In addition to investigating claims of workplace discrimination, the EEOC attempts to mediate a solution between an employee who brought a charge and his or her employer. A mediated resolution is captured in a written settlement and a dismissal of the charge. Mediation is different from arbitration in that mediation is only binding if both sides agreed with the solution offered by the mediator. The 28 players’ filing of a lawsuit makes clear that mediation failed.
The EEOC investigation and accompanying mediation lasted for nearly three years. Under the law, the players had a right to demand from the EEOC a “right to sue” letter—which signifies there are grounds for the players to sue and procedurally would have allowed the players to file a complaint in court—in the fall of 2016. This is because once 180 days had passed from when the players filed their charge on March 30, 2016, they obtained the legal right to demand the letter. The players chose not to request the letter at that time. This is perhaps because USWNT was negotiating a new collective bargaining agreement with USSF and a lawsuit would have likely disrupted those efforts. Or perhaps it is because mediation between the players and USSF may have seemed promising at that time.
The EEOC investigation ended on Feb. 5, 2019, when the agency issued right to sue letters to the players. This was an important event, because it established that the players had exhausted their obligation to seek a resolution through the EEOC. Under the law, the players then had 90 days to file a lawsuit. By filing on March 8, the players did so within that window.
What to expect from USSF in its defense
The next step in the litigation will be the USSF answering the players’ complaint. The answer will arrive in weeks and will deny the players’ accusations. As the case develops, USSF will raise a number of defenses.
One defense will be that, irrespective of the merits of the players’ legal claims, those claims are extinguished by the USWNT and USSF collective bargaining agreement. In April 2017, the two sides announced they had ratified a CBA that will run through 2021. Details of the CBA were outlined by SI's Grant Wahl, who noted that the CBA did not attempt to resolve the EEOC charge. He also explained how the USSF pledged to offer women players greater compensation and how the CBA contains various rules about wages and other terms of employment.
To the extent the lawsuit relies on alleged wage disparities that have arisen since ratification of the CBA, the USSF will argue that the 28 players contractually accepted these conditions as part of the CBA. Therefore, the USSF will contend, the players should be barred from pursuing related legal claims. In other words, even if the pay disparities between the USWNT and USMNT are morally or societally “unfair,” their unfairness was accepted as part of a larger employment deal where both sides give and take.
The players will attempt to rebut this line of legal reasoning. They will insist that their lawsuit claims extend beyond the language of the CBA and also, to some extent, involve salary issues that predate the CBA. This rebuttal, however, is not certain to prevail. The players and USSF were arguably bound by a prior CBA—and its provisions on wages—until December 31, 2016. During 2016, the two sides had litigated a lawsuit over the CBA in the U.S. District Court for the Northern District of Illinois. Expect the USSF to argue that, other than a four-month window at the start of 2017 when there was no CBA, USWNT players and USSF have been bound by a CBA during the relevant time period. Therefore, the USSF will contend that lawsuits related to wages are preempted by a CBA.
A second defense will be that USWNT’s wage calculations are misleading and lack appropriate context. The USSF will argue that any disparity in pay reflects market realities and consumer preferences rather than USSF discrimination. While the USWNT is undoubtedly more successful than the USMNT as a team, the global market for men’s soccer is more lucrative and thus, arguably, warrants higher wages. The USSF could acknowledge that this disparity might reflect sexism on the part of soccer fans, but it could also contend that it is not responsible for such sexism. Instead, the USSF could explain, it is simply responding to the market as it is, rather than as it ought to be.
Don’t expect the players to accept such a defense. In the complaint they appear to anticipate it by claiming, “the USSF admits to such purposeful gender discrimination even during times when the USWNT earned more profit, played more games, won more games, earned more championships, and/or garnered higher television audiences.”
To bolster that point, the complaint contends that the USWNT Players’ Association proposed a revenue-sharing model to test the USSF’s “market realities” theory, but the USSF rejected the proposal. As described in the complaint, the model would have called for increased USWNT player compensation when USSF derived more revenue from USWNT activities and decreased compensation when less revenue was derived. In other words, the players were willing to accept the market risk, but the USSF (according to the players’ complaint, which like any complaint contains a non-neutral retelling of facts) said no.
The players have also drawn explicit support from men's players, who seem to reject the idea that “market realities” ought to justify USSF not paying women players higher wages. The U.S. National Soccer Team Players Association released a statement on Friday that it “fully supports” USWNT players achieving both equal pay and equal distribution of attributable revenue. Further, it is “committed to the concept of a revenue-sharing model” to sustain more equitable compensation–perhaps along the lines of what was achieved by the Norwegian federation in October 2017.
If anyone thought USMNT players might be worried about how USWNT players earning more could impact USMNT players’ wages, it doesn’t appear that they view pay distribution as a zero-sum game. Instead, they seem to regard higher pay for women players as a matter of merit and fairness. It’s also possible that higher wages for USWNT players will translate into higher wages for USMNT players, as one labor group gaining sometimes leads to similar groups gaining. We’ll see how that all plays out.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.