Why U.S. Soccer Prevailed in USWNT's Gender Discrimination Lawsuit
In a stunning legal development, U.S. District Judge Gary Klausner on Friday granted summary judgment to U.S. Soccer on the most consequential portions of the pay equity class action lawsuit brought by members of the U.S. Women’s national soccer team. In addition, the Los Angeles-based federal judge denied WNT players’ motion for summary judgment.
The players’ only surviving legal claims concern alleged discriminatory working conditions based on travel conditions (specifically, charter flights and hotel accommodations) and assorted personnel and support services issues (namely, medical and training support). This narrow band of claims now advances to a jury trial scheduled for June 16. However, gone are the claims concerning alleged unequal pay—claims that lie at the heart of WNT players’ demand for more than $66 million in damages—and alleged unsafe play on artificial turf.
Though Judge Klausner’s order, which was obtained by Sports Illustrated, doesn’t end the litigation, and the players can ultimately appeal a loss to the U.S. Court of Appeals for the Ninth Circuit, the ruling is nonetheless a major victory for U.S. Soccer and its embattled legal team. Attorneys representing U.S. Soccer have been sharply criticized and sometimes portrayed as sexist in their choice of written words. U.S. Soccer has changed its leadership staff and legal team, and also petitioned for revised filings, at least partly in response to widespread criticism about the case. Yet it seems that U.S. Soccer’s controversial legal strategy—which embraced a “scorched earth” approach and likely damaged U.S. Soccer’s relations with key sponsors and constituencies—worked.
For now, at least.
The case has mainly been built on arguments that U.S. Soccer illegally paid WNT players less than members of the U.S. men’s national soccer team for substantially similar work. WNT players assert that U.S. Soccer is in violation of both the Equal Pay Act and Title VII of the Civil Rights Act. In general, both laws make it illegal for employers to discriminate employees’ pay on the basis of gender and other demographic characteristics. However, a finding that male employees earn more than women employees does not automatically establish a finding of illegal discrimination. An employer can offer a lawful explanation, including that differences in pay reflect a seniority system or collectively bargained outcomes.
The role of collective bargaining is important in this case. Players’ associations representing WNT and MNT negotiated different collective bargaining agreements with U.S. Soccer. The two CBAs contemplate dissimilar pay schemes. WNT players are compensated largely through guarantees, with additional opportunities for modest bonuses. In contrast, MNT players are guaranteed less pay but they can earn lucrative bonuses.
WNT players maintain that this two-system pay approach has led to gross inequities in pay. WNT players assert they have earned far less despite enjoying much greater on-field success—WNT has won four of the eight FIFA Women's World Cup championships whereas MNT has never advanced to the World Cup final. WNT players note they have been paid lower bonuses than MNT players for friendless, World Cup-related matches and other tournaments. They also detail how they would have earned much more money had they been compensated under the same conditions as MNT players.
Meanwhile, attorneys for U.S. Soccer reject the calculations offered by WNT’s expert witnesses. In fact, U.S. Soccer asserts that, in certain situations, WNT players earn much more than MNT players. In addition, U.S. Soccer insists that regardless of which group of players earn more under their CBAs, and regardless of which group would have earned more under the other’s CBA, both groups hired unions to negotiate their terms. Under this viewpoint, players’ unions, not U.S. Soccer, are responsible for perceived inequities. Furthermore, judges are often reluctant to disturb CBAs since they reflect bargains between unions and management. If CBAs can be undone by judges, unions and management would have less certainty in their dealings.
In a 32-page order, Judge Klausner suggests that WNT players’ predicament is their own fault. He intimates that they agreed to a CBA that they now regret. “The history of negotiations between the parties,” then78-year-old judge observes, “demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players.”
In addition, Judge Klausner repeatedly rejects arguments raised by WNT concerning pay. He concludes that, based on empirical evidence and expert testimony offered by both sides, WNT players have seemingly earned more than MNT players. He notes that during the class period (2015 to 2019), WNT played 111 total games and earned $24.5 million overall in salaries. This means WNT players made, on average, $221K per game. During this same period, MNT played 87 games and earned $18.5 million overall in salaries. MNT players therefore made, on average, $213K per game—or $7K less per game than WNT players.
The judge was similarly unpersuaded by WNT players arguing that U.S. Soccer forced WNT to more frequently play on inferior surfaces—namely artificial turf—as a result of discriminatory animus. WNT players maintain that playing on artificial turf raises the likelihood of serious injuries, and that U.S. Soccer valued safety for MNT players over safety for WNT players.
Judge Klausner found U.S. Soccer’s rebuttals on field surfaces believable. U.S. Soccer submitted evidence that there were only two time periods during which U.S. Soccer subjected WNT to turf conditions at a higher frequency. The first occurred during a 10-game, post-World Cup victory tour in 2015. Judge Klausner notes that MNT didn’t play in such a tour since they weren’t victorious. U.S. Soccer also argued, successfully, that it didn’t install temporary grass over the turf at WNT victory tour venues since “it did not anticipate generating enough revenue from those matches to make it financially prudent.” This same financial prudence rationale also persuaded Judge Klausner with regard to WNT playing three friendlies on turf between July 27 and Oct. 19, 2017. U.S. Soccer maintained it had a right to make economic decisions on field conditions and expected revenue. Judge Klausner found that line of reasoning cogent.
Judge Klausner was more persuaded by WNT’s claim that U.S. Soccer subjected WNT players to inferior travel conditions due to gender. WNT players noted that from 2015 to 2020, when WNT played more games, U.S. Soccer spent approximately $9 million on airfare for MNT players but only $5 million for WNT players. Similar data was shown concerning hotels. The judge found none of U.S. Soccer’s explanations persuasive. He instead highlighted a “gross disparity in money spent on airfare and hotels for the teams.” The judge believes that a jury should determine if the disparities reflect discriminatory motive. He further concluded that a jury should review alleged disparities in medical and training support.
In a statement, WNT spokesperson Molly Levinson expressed disappointment in Judge Klausner’s ruling. She also indicated a desire to appeal once there is a final judgment. For now, the case moves towards a trial next month.
Whether the trial happens remains to be seen. It remains possible that the two sides will negotiate a settlement. However, U.S. Soccer now enjoys much greater leverage in settlement talks. To the extent U.S. Soccer has offered settlement terms, it might withdraw those terms and replace them with inferior ones. At the same time, U.S. Soccer might take a more conciliatory approach to settlement talks. Even though U.S. Soccer is now in command of the litigation, the process has damaged its brand. A settlement—and avoiding a courtroom showdown with popular WNT players—might still offer high value.
Jon Wertheim contributed to this story.
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.
