What U.S. Soccer's Response Means for USWNT's Gender Discrimination Lawsuit
Attorneys for U.S. Soccer have answered the federal complaint filed by Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and 25 other players on the U.S. women's national team. And their answer is clear: U.S. Soccer obeyed the law and didn’t economically discriminate against women players.
Whether the legal system believes this answer remains to be seen.
As previously detailed, the players maintain that U.S. Soccer has engaged in gender-based employment discrimination in violation of the federal Equal Pay Act and Title VII of the Civil Rights Act of 1964. Among their more damning allegations is the assertion that, despite the women's team enjoying considerably more success than the U.S. men’s national team, women's players earn as little as 38% as similarly situated men's players. The players also charge that they are subjected to substantially inferior playing, training and travel conditions.
Yet according to attorneys Ellen McLaughlin, Cheryl Luce and Kristen Peters of Seyfarth Shaw, U.S. Soccer has done nothing wrong. The lawyers, retained by U.S. Soccer, also contend that women's players have manufactured misleading financial figures in order to paint an intentionally incomplete story—one that doesn’t adequately acknowledge that differences in employment between WNT and MNT players are a function of collective bargaining, not unlawful discrimination.
Here's a closer look at the response:
Unpacking U.S. Soccer’s answer
The attorneys’ reasoning is detailed in U.S. Soccer’s answer, filed this week in the U.S. District Court for the Central District of California. The purpose of an answer is to both deny adverse claims raised by the plaintiff and raise defenses that attempt to extinguish the risk of liability.
More specifically, U.S. Soccer intends to convince the presiding judge, Judge R. Gary Klausner, that women's players have misconstrued the law in asserting violations of the Equal Pay Act and Title VII. Both laws make it illegal for employers to pay women lower wages than men for equal work.
However, courts consider a number of factors in assessing explanations for wage differences between women and men employed by the same company. Differences in how job openings were marketed to prospective job applicants, distinctions in how human resources defines jobs’ responsibilities, and variations in skills, experiences and seniority of individual employees are also considered. In other words, the legal analysis for gender-based wage discrimination is not simply whether male or female employees earn more. Instead, the analysis focuses on whether male and female employees of corresponding employment backgrounds are paid similarly for comparable work under analogous working conditions.
To that end, U.S. Soccer’s attorneys expend considerable energy in their answer highlighting employment differences between women's and men's players. Their goal is to try to explain away disparities in pay on account of lawful reasons—namely, that women's and men's players have fundamentally different jobs. For instance, the attorneys stress, “USWNT and USMNT are physically and functionally separate organizations that perform services for U.S. Soccer in physically separate spaces and compete in different competitions, venues, and countries at different times; have different coaches, staff, and leadership; have separate collective bargaining agreements; and have separate budgets that take into account the different revenue that the teams generate.”
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The intended framing is obvious: women's players are treated differently, U.S. Soccer contends, not because they are women but because their jobs are fundamentally different.
U.S. Soccer’s answer continues with that approach when stating, “no pay comparison can be made between the USWNT players, who earn guaranteed salaries and benefits, and the USMNT players, who are paid strictly on a match appearance fee basis.” This point is designed to portray the players’ economic claims as wrongly comparing apples and oranges since the women and men’s players are paid through two different compensation systems.
Similarly, the answer draws attention to the fact that women's players, through their union, contractually accepted the terms of their employment. In April 2017, the USWNT Players’ Association and U.S. Soccer announced that they had ratified a collective bargaining agreement. This is why U.S. Soccer’s answer notes that “USWNT and USMNT receive fundamentally different pay structures for performing different work under their separate collective bargaining agreements that require different obligations and responsibilities.”
As U.S. Soccer’s answer highlights, the women's CBA contemplates a different economic system than does the CBA for men's players. Women's players earn guaranteed salaries and benefits while MNT players are paid under a “pay-for-play” structure. Further, according to U.S. Soccer attorneys, women's players are only paid for individual match appearances “when they are included on a tournament or tournament-qualifying roster” whereas men's players—who are paid through a “pay-for-play” structure—receive no compensation when they aren’t part of the roster. These points are designed to persuade Judge Klausner (and persuade prospective jurors, soccer media and the public at large) that comparisons of pay between women's and men's players are inherently misleading since these two teams’ compensation structures are so different. U.S. Soccer wants the court to find that any and all pay differences are explainable by non-discriminatory factors.
U.S. Soccer also rejects the assertion by women's players that their players’ association offered a revenue-sharing model to U.S. Soccer and that the U.S. Soccer rejected it. This alleged model, as described in the players’ complaint, would have pegged women's player salaries to the degree to which women's players generated revenue for U.S. Soccer—meaning women's players were willing to risk lower pay if they generated less revenue money for U.S. Soccer. In its answer, U.S. Soccer contends that, per its CBA with women's players, their compensation is already influenced by revenue generation: “the current CBA provides for player compensation that increases based on increased viewership, attendance and sponsorship revenue, in each case over and above their guaranteed salary and other benefits.”
While U.S. Soccer’s answer mostly disputes the women's claims, the answer essentially concedes that the women and men compete on unequal playing fields. Indeed, the answer notes that the two groups of players perform services on “physically separate locations, some of which have different field surfaces.” U.S. Soccer also recognizes that travel conditions between the two teams are different, though it disputes the women's charge that U.S. Soccer provides more charter flights for men's players on account of preferring them to the women. Women's players claim that during 2017, U.S. Soccer chartered 17 flights for men's players and none for women's players. In response, U.S. Soccer’s attorneys try to explain away the discrepancy as beyond the control of U.S. Soccer and simply a matter of flight logistics: “There are many factors that determine whether the USWNT and USMNT take commercial flights or flights chartered by U.S. Soccer that are beyond U.S. Soccer’s control and further states that in many instances flights are controlled by FIFA or other entities.” We’ll see whether the court accepts that assertion.
U.S. Soccer offers a number of affirmative defenses that largely rephrase points raised earlier in the answer. One such defense is U.S. Soccer’s insistence that pay differences “are not based on sex” but rather differences in economic agreements. Another defense is that women's players waited too long to sue under the relevant statutes of limitation.
Next steps
U.S. Soccer’s answer is just one of many steps in a complicated litigation that will likely take months, if not years, to play out. The litigation’s complexity is a function of several factors.
First, the 28 players seek to convert their case into a class action on behalf of all women's players since 2015, plus players who join the national team by the conclusion of the litigation (which might be in 2020 or beyond). Certification of a class is neither an instantaneous process nor one with a certain outcome. It will require Judge Klausner to closely examine if the arguments asserted by the 28 players are adequately representative of claims for other persons who would be in the class.
Second, former U.S. goalkeeper Hope Solo filed a very similar lawsuit against U.S. Soccer in an August 2018. She sued in a different federal court, the U.S. District Court for the Northern District of California. Federal courts might combine the two lawsuits and have the combined case tried in one of three federal districts: the Central District of California, the Northern District of California or the Northern District of Illinois. These matters will take time to resolve.
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Third, it’s clear that women's players and U.S. Soccer are operating under very different sets of facts and assumptions—particularly with respect to economic figures. While the players' attorneys detail jaw-dropping pay disparities, attorneys for U.S. Soccer rebuke those disparities as factually incorrect and contextually deceiving. To the extent the two sides anchor to their wildly contrasting perceptions, it may be difficult for them to reach an out-of-court settlement. That, in turn, could provide an opportunity for dueling expert witnesses to play critical roles in a lengthy litigation: experts for the players and experts for U.S. Soccer could help to clarify which depiction of the players' employment situation is most believable.
At the same time, U.S. Soccer officials knows that if their attorneys are unable to persuade either Judge Klausner to dismiss the case or the players to reach an out-of-court settlement, the case will move into the pretrial discovery phase. During it, U.S. Soccer officials would be required provide sworn statements about how they determine pay with respect to women's and men's players. They would also be compelled to turn over potentially sensitive—and possibly unflattering—emails, texts and other correspondences. Such disclosures could be referenced in public court filings or leaked to the media. Whether that public relations risk motivates U.S. Soccer officials to offer favorable settlement terms to the players remains to be seen.
As for the players, who are preparing for next month's Women's World Cup in France, their response to U.S. Soccer's latest filing shows a side ready to go to trial.
"There is no legal basis for USSF's claim that it is anything other than a single employer operating both the men's and women's teams - who face drastically unequal conditions and pay under their shared employer," a spokeswoman for the players said in a statement. "The USSF cannot justify its violation of the Equal Pay Act and Title VII by pointing to the teams' separate collective bargaining agreements or any factor other than sex. Even as the most decorated American soccer team in history, USSF treats the women's team as 'less-than' equal compared to their male colleagues. We look forward to a trial next year after the World Cup."
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.
