In an important pretrial victory for the U.S. women's national team players who are suing U.S. Soccer for pay equity, U.S. District Judge Gary Klausner on Friday certified their case as a class action. In addition, Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and Carli Lloyd were officially appointed as class representatives.
In perhaps a preview of what’s to come, the federal judge also forcefully rejected legal arguments raised by U.S. Soccer while signaling that the players’ case appears to be strong.
The players proposed three classes. Here's a closer look at what they mean and what the overall ruling means in the bigger picture:
The Injunctive relief class
The first proposed class includes all USWNT players who will be on the team at whatever date the litigation ultimately ends. With potential appeals, the case could conceivably last until 2022 or 2023. While some of the current players will remain on the team at that point, others will have been replaced.
The injunctive relief class will benefit from any court order requiring U.S. Soccer to change its method of pay. This class is not about receiving monetary damages for past wrongs. It’s instead about equitable or injunctive relief, meaning an order to change rules going forward.
Back pay and punitive damages class
The second proposed class includes all USWNT players who have been members of the team at any time from Feb. 4, 2015, through the date of class certification, which is now Nov. 8, 2019. This class would receive any monetary damages ordered by the court should the players prevail in arguing that U.S. Soccer violated Title VII of the Civil Rights Act of 1964.
Title VII forbids employers from paying employees less on account of their gender. If the players prove that U.S. Soccer broke the law, players in this class would likely be owed “back pay”, meaning compensation they would have earned had U.S. Soccer complied with the law. These players would also receive any damages imposed on U.S. Soccer as a form of punishment (punitive damages).
Fair Labor Standards Act compensation class
The third proposed class includes all USWNT players who have been members of the team at any time from March 8, 2016, to the present. The Fair Labor Standards Act (FLSA) is a comprehensive federal law governing wages. It includes the Equal Pay Act, which is a key area of law for the players. Like Title VII, the Equal Pay Act makes it illegal for employers to discriminate employees’ pay on the basis of gender, among other demographic characteristics.
Players’ class certification arguments clearly convince the court
Judge Klausner, who earned a Bronze Star for his service as a United States Army captain in the Vietnam War and whom President George W. Bush nominated to the bench in 2002, approved all three of the proposed classes.
To reach that determination, the judge had to determine if each of the three classes met four criteria:
1. The proposed class is so numerous that joinder (joining individual claims) of all members would be impracticable.
2. There are questions of law or fact common to the proposed class.
3. The claims or defenses of the representative parties are typical of the claims or defenses of the proposed class.
4. The representatives would fairly and adequately protect the interest of the proposed class.
In assessing those criteria, Judge Klausner found ample reasons to support the players’ reasoning.
For instance, Judge Klausner’s written order stresses that the players “have offered evidentiary proof that they had they been paid on the same terms as [the men’s players], they would have earned more money per game and, as a result, more money per year.” In other words, the judge regards the players’ core contention—that they have been illegally paid less than men—to be based on fact and data rather than supposition or suspicion. That doesn’t mean the players have proven their case. As noted below, a jury trial would determine whether or not the law was broken. Still, Judge Klausner clearly sees the players as offering a logical argument grounded in reality.
In that same vein, the judge maintains that the players “have established a likelihood that they will again be wronged in a similar way.” This means there is a potential for repeat harm in the future: if U.S. Soccer broke the law in how they paid the players, that is likely to happen again in the future unless a court stops it.
Judge Klausner also bluntly rejects certain defenses raised by U.S. Soccer. For instance, U.S. Soccer maintains that Morgan, Rapinoe, Lloyd and Sauerbrunn have all been paid more than the highest earning U.S. men's players. Judge Klausner dismisses that possibility as irrelevant in terms of whether U.S. Soccer violated Title VII or the Equal Pay Act.
Indeed, in a sharp critique, Judge Klausner highlights that U.S. Soccer “cites no case law to support this premise.” He also underscores that other courts have “explicitly rejected this argument.” To cement the point, the judge writes that it would be an “absurd result” if women could only negate “obvious disparity” in pay by working twice as many hours.
Judge Klausner also places emphasis on the fact that the players’ alleged injuries go beyond pay. The players maintain that U.S. Soccer has treated them like second-class citizens compared to the men’s players. The women players contend they have been subjected to “unequal working conditions,” including playing on inferior and less-safe surfaces and traveling less often on chartered flights.
Judge Klausner’s order also blasts U.S. Soccer for equating conjecture with legal reasoning. Specifically, the judge takes issue with U.S. Soccer suggesting that more established players on the team might be inclined “to prioritize monetary and injunctive relief that is more favorable to them than to junior, non-contracted players.” Judge Klausner emphasizes that U.S. Soccer has offered no evidence backing up this “speculation” and that courts do “not favor denial class certification on the basis of speculative conflicts.”
Class certification is important, because it ensures that the litigation involves more plaintiffs than are currently listed in the case. The case now represents classes of former, current and future players (they can opt out of the classes and pursue their own cases against U.S. Soccer, but that is unlikely to happen). If the case proves successful at trial, class certification would likely require U.S. Soccer to pay more in monetary damages.
Morgan, Rapinoe, Lloyd and Sauerbrunn have also been designated as class representatives. This means Judge Klausner did not find their positions or backgrounds to contain any relevant conflicts of interest. As class representatives, the four will be obligated to ethically represent everyone in the three classes and also be expected to play active roles in the litigation.
This doesn't spell the end for U.S. Soccer's defense
The players defeating U.S. Soccer on the issue of class certification does not mean that the players will necessarily prevail in a trial. Judge Klausner’s focus was not on whether U.S. Soccer broke the law but rather on whether the players offered sufficiently convincing arguments for purpose of class certification. Those are two different legal considerations and could yield opposite results.
To that point, U.S. Soccer’s core defenses—which include that the players’ own union negotiated the pay policies at the heart of their complaint—remain available. It would be possible for the players to win on class certification and for U.S. Soccer to prevail in a trial. The fact that women players earn less than men counterparts does not, by itself, prove that U.S. Soccer broke the law. In a trial, U.S. Soccer would repeatedly frame pay differences as reflecting calculated and lawful choices by the respective unions for the women and men, with the former securing more guaranteed pay with less upside and the latter obtaining fewer salary guarantees and more lucrative bonuses.
Moreover, even if Judge Klausner is skeptical of some of U.S. Soccer’s defenses, it remains to be seen how jurors would react to competing arguments during a trial. In their complaint filed back in March, the players demanded a jury trial. Jurors, then, would determine whether U.S. Soccer violated the law. A trial would also feature witnesses and the presentation of evidence—the dynamic would be very different than what has occurred to date (that is, pretrial document filings and accompanying hearings).
Still, U.S. Soccer has reason to be concerned that the presiding judge appears supportive of the players’ position. This could motivate U.S. Soccer to offer more favorable settlement terms to the players. The parties have six months to negotiate before a trial starts. Chances are, they’ll strike a deal before May 5 and a trial will be averted. Until then, that date will inch closer and closer.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.