The U.S. women’s national team is in the midst of turning the page following the conclusion of its Women's World Cup victory tour and the end of Jill Ellis’s successful tenure as manager. Yet the players’ equal pay litigation against their employer, U.S. Soccer, continues to march toward a showdown in court. In two recent court filings, attorneys for U.S. Soccer and the 28 players offer wildly different perspectives on player earnings and the meaning of “equal pay.”
At issue are four players—Alex Morgan, Megan Rapinoe, Carli Lloyd and Becky Sauerbrunn—who are the named plaintiffs. They and their 24 teammates would like U.S. District Judge Gary Klausner to designate the four as class representatives.
U.S Soccer contends that such an arrangement is untenable. The four, as depicted in a recent U.S. Soccer court filing obtained by SI.com, have been paid “more than even the highest-earning” members of the U.S. men’s national team. As U.S. Soccer sees it, Morgan, Rapinoe, Lloyd and Sauerbrunn haven’t suffered any form of injury that the law ought to remedy. U.S. Soccer further maintains that the 28 players have failed to prove that their case should be certified as a class action, the significance and meaning of which we have previously detailed.
Have Morgan, Rapinoe, Lloyd and Sauerbrunn been paid too much for their case to advance? Did the 28 players err in anointing their most-celebrated, and also highest-paid, teammates as leaders? Are the financial interests of these four stars and those of their teammates too divergent? Or is U.S. Soccer using “fuzzy math” to distort earnings and attempt to mislead the courts and public?
As explained below, these are crucial questions for the court to consider.
The pursuit of class certification
Last month, the 28 players filed a motion for class certification, with three proposed classes. If Judge Klausner certifies the proposed classes, the case would become a “class action lawsuit.”
The players are mindful that their litigation might not end for several years. A trial has been scheduled for May 5, 2020, and it is one expected to last between two and four weeks. With potential appeals, the litigation could extend into 2022 or 2023. The current players wish to ensure that any gains they obtain extend to players who join the team over the next several years. If those future players aren’t included in the lawsuit, then they might need to bring their own cases—particularly given that the current collective bargaining agreement is set to expire in 2021 and given that there is uncertainty over how the next round of labor negotiations will play out.
The lawsuit is premised on the contention that U.S. Soccer has violated two federal laws, the Equal Pay Act and Title VII of the Civil Rights Act of 1964. These laws prohibit employers from paying employees less on account of their gender. The 28 players maintain that U.S. Soccer has paid women’s players much less than the men’s players for the same or substantially similar job responsibilities. Such disparities, the women players insist, reflect gender discrimination.
U.S. Soccer disagrees, both in terms of asserted facts and legal reasoning. U.S. Soccer maintains that there are lawful reasons for pay differences, including the fact that the women's players’ union negotiated a collective bargaining agreement that governs the salaries which lie at the heart of the players’ dispute. To that end, a spokesperson for U.S. Soccer on Monday insisted that “our men and women’s national teams have different pay structures, not because of gender, but because each team chose to negotiate a different compensation package with U.S. Soccer.”
Moving pieces for calculating pay for men’s and women’s players
The CBAs for women and men players structure pay differently. This complicates pay comparisons and supplies each side with room to offer conflicting data.
Some of the women players—including Morgan, Rapinoe, Lloyd, Sauerbrunn and more than a dozen of their teammates—are under contract to U.S. Soccer. These contracted players are guaranteed base salaries for three activities: playing on the national team, training and playing in the National Women’s Soccer League. Their pay is not influenced by the number of games in which they play, though they are contractually obligated to be available for those games. Likewise, whether the games result in a win, loss, or draw doesn’t impact the guaranteed pay. Such guaranteed pay can rise as high as $172,500 per year. Other women players are not under contract and thus lack base salaries. Their pay is dictated by the games in which they play.
Both groups of women players—contracted and non-contracted—can also earn bonuses for participation in individual matches and certain tournaments. Those bonuses are influenced by the quality of opposing teams and how well the team performs.
In sharp contrast, the CBA that governs players on the men’s team contemplates a riskier, and potentially more rewarding, “pay-for-play” compensation structure. The “risk” reflects that the fact men’s players are only paid if they make rosters for particular matches and tournaments. Their compensation is also influenced by bonuses, the values for which depend on the event, outcome and opponent.
The pay framework for the men’s players has a lower floor but higher ceiling when compared to the pay framework for women’s players. U.S. Soccer insists the two frameworks reflect “different bargaining priorities” on the part of women’s and men’s players associations, and a bargaining preference among women’s players “for U.S. Soccer to pay core contracted players guaranteed sums and NWSL salaries.” U.S. Soccer compares the two systems as “not unlike employees who are paid on salary versus commission ... while the players on our men’s national team can earn larger bonuses, they take more risk as they do not receive any guaranteed money or benefits within their pay-for-play contract structure.”
U.S. Soccer’s math: star women’s players earn more than any of the men’s players
U.S. Soccer charges that despite the lower ceiling for earnings, Morgan, Rapinoe, Lloyd and Sauerbrunn have been paid more by U.S. Soccer than have the highest earning male players. U.S. Soccer includes the following salary chart in its pleading:
|YEAR||LLOYD||RAPINOE||SAUERBRUNN||MORGAN||HIGHEST-EARNING MNT PLAYER**|
The chart is designed to draw the readers’ attention to these four women players earning much more than the highest-paid members of the men’s team.
Anticipating a rebuttal that the players’ salaries in NWSL should not be included, U.S. Soccer also offers this modified chart:
|YEAR||LLOYD||RAPINOE||SAUERBRUNN||MORGAN||HIGHEST-EARNING MNT PLAYER**|
* Denotes from 3/30/2014 through 12/31/2014
** Summarizes the income earned by the single MNT player who earned the most in the aggregate over the 2014-2019 period.
*** Denotes from 1/1/2019 through 9/30/2019
The modified chart essentially lands in the same place: a data set showing that the four would-be class representatives earn much more than the highest paid men’s players.
U.S. Soccer thus insists that Morgan, Rapinoe, Lloyd and Sauerbrunn lack standing to sue. While their lesser-paid teammates might be in a different position, these four players can’t, in U.S. Soccer’s view, prove they suffered any form of injury. Without any injury, they cannot prove they were harmed. If anything, U.S. Soccer’s data suggests these four players have done very well in the system that that they now challenge.
U.S. Soccer also rejects the grouping of these 28 players as one entity on grounds that the players’ interests are too conflicting. To that end, U.S. Soccer highlights that senior, contracted members of the team may be inclined to “prioritize monetary and injunctive relief that is more favorable to them than to junior, non-contracted players.”
As U.S. Soccer sees it, Lloyd, Rapinoe, Sauerbrunn and Morgan seek an economic system that has more risk than the kind of system preferred by their less-accomplished teammates. A riskier system would stand to benefit star players since they would play rather than sit.
To that end, U.S. Soccer maintains, “it is hard to believe it is better for a large number of the putative class members they purport to represent, including contracted players who, just two years ago, negotiated to receive guaranteed salaries rather than high-risk, pay-for-play match appearance fees.”
The 28 players depict U.S. Soccer’s math as factually wrong and bigoted in design
Most significantly, they dismiss the notion that female players haven’t suffered an injury as an “illogical proposition.” The players stress that what they term a “discriminatory compensation policy in favor of the male soccer players” is not any less discriminatory merely because women players have earned more. They have earned more, the players emphasize, because they have played in more games and been “far more successful” than then men’s team.
In other words, the women players contend that “total remuneration”—meaning total pay—is misleading and inappropriate since it ignores how many games and victories led to the outcome. For instance, a female employee who works twice as many hours as a male employee because she is better at a particular job might earn more than him in total, but if she is paid less per hour due to a discriminatory pay rate, the pay rate is still discriminatory, regardless of the number of hours worked. Attorneys for the players note that federal courts have rejected “total remuneration” as an “absurd result” for purposes of assessing pay rates.
To that point, the players’ attorneys hold that over the relevant period of the litigation, the “only reason” why Morgan, Rapinoe, Lloyd and Sauerbrunn have earned more in total compensation is because their team amassed a “far higher win percentage, including earning two World Cup championships.” The players worked more and were better at their work than the men’s players. The women players earned more, as their attorneys contend, “even under the indisputably discriminatory set of the U.S. Soccer’s compensation policies.”
The players further assert that the applicable legal standard for their claims is to determine whether there is an equal pay rate for different genders—specifically, “whether the plaintiffs would have earned more compensation under the pay rate policy of the MNT than they actually received under the pay rate policy of the WNT.” According to this method, Morgan, Rapinoe, Lloyd and Sauerbrunn each would have earned “at least $2.5 million more over the same period.” The players offer this chart, comparing pay rates from March 30, 2014, through Oct. 7, 2019, in their filing:
|PLAYER||PAY UNDER WNT RATE||PAY UNDER MNT RATE|
In addition, the players take umbrage at U.S. Soccer including compensation from NWSL in one of their pay calculations. “The notion,” the players contend, “that a woman has to work two jobs to have a chance to make what a male earns at a single job is not only legally wrong under Title VII and the Equal Pay Act, it is morally repugnant.” The players also argue that U.S. Soccer excluding compensation earned by men in professional leagues, but including pay for women in NWSL, is a glaring omission designed to distort the math.
As to whether star players can adequately represent their lower-paid teammates, the players’ attorneys contend that Morgan, Rapinoe, Lloyd and Sauerbrunn have collectively “demonstrated commitment over years of fighting this discrimination for the entire team through an EEOC complaint and this litigation.”
Every legal dispute has (at least) two sides. As noted above, U.S. Soccer repeatedly emphasizes that the union for the women players agreed to the system over which they are now suing.
The overarching legal controversy between the women players and U.S. Soccer has led to sharp disagreements about revenue and pay. Not only do they disagree about the amounts, but they disagree about the formulas. Despite their war of words, they could, in time, settle their dispute out of court. Until then, the case goes on. Their next court hearing is scheduled for Monday, Oct. 21, at 9 a.m. in Los Angeles.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.