Fox & Williams Next goal for U.S. Women’s Soccer Team: Scoring equal pay

By Ryan Fox and Craig Williams

On July 7, the United States Women’s National Soccer Team (WNT) took home the World Cup with a 2-0 victory over the Netherlands. Over the course of the World Cup, the WNT did not lose a match in route to their fourth World Cup title. When they returned home, the nation celebrated the team’s victory with numerous national TV appearances and a ticker tape parade. However, while the team reveled in victory, one battle stood ahead — not on the field, but in the U.S. District Court for the Central District of California.

On March 8, over 25 players from the WNT sued the United States Soccer Federation (USSF) alleging that as the common employer of the WNT and the U.S. Men’s National Soccer Team (MNT), USSF has consistently paid female players less money than their male counterparts. According to the lawsuit, the USSF centrally manages and controls every aspect of the senior national team program for both teams, as well their female and male members. This control includes, but is not limited to, hiring employees associated with the teams, deciding the number of games to be played, promotion for those games, ticket prices, practice scheduling, training camp locations and, perhaps most importantly, setting players’ compensation. The women of WNT claim the pay disparity violates the Equal Pay Act, 29 U.S.C. § 206 et seq, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.

As in Paris, the WNT has taken the offensive not only through the lawsuit, but also through the media to gain demonstrations of public support. For example, as they celebrated their World Cup victory while still on the pitch, chants of “equal pay” echoed throughout the stadium. Democratic presidential candidates such as Elizabeth Warren, Kirsten Gillibrand and Kamala Harris also have tweeted their support for the WNT, demanding pay equality. Arguably, more Americans are likely to be able to identify the names of Megan Rapinoe, Alex Morgan or Tobin Heath as compared to any current MNT member. However, public support does not win lawsuits, which in turn leads to the ultimate question: how strong are their claims for equal pay, and what are the USSF’s defenses?

For starters, the WNT’s lawsuit does not shy away from boasting about their accomplishments compared to the MNT, who failed to even qualify for the last World Cup. Some of these accomplishments are hard for the USSF to dispute. For instance, it is undeniable that the women have enjoyed more success on the field than their male counterparts. Moreover, this on-the-field success has led to high television ratings. Specifically, the July 5, 2015, Women’s World Cup title game was the most-watched soccer game in American television history. Thus, the women of the WNT contend their undeniable success has led to substantial profits for the USSF, especially when compared to the men.

Secondly, as they are required under the EPA, the WNT argues they perform the same job duties that require equal skill, effort and responsibilities performed under similar working conditions as MNT players. To this end, the WNT alleges the USSF, as the common employer of both the WNT and MNT, holds both to nearly identical job requirements. In fact, the WNT contends that, due to their unprecedented success, they are subject to more responsibilities than the MNT. For example, the WNT argues they spend more hours working for the USSF because their on-the-field success leads to more practice requirements for matches, travel, training camps and more time participating in media sessions, compared to similarly situated MNT players.

Finally, the WNT’s factual allegations conclude the USSF has a policy and practice of discriminating against them on the basis of their gender by paying them and providing less-favorable terms and working conditions than similarly situated MNT players. The WNT note, for example, that if the WNT and MNT each played 20 friendlies (exhibition matches) in a year and each team won all friendlies, female WNT players would earn a maximum of $99,000, while the MNT players would earn an average of $263,320. Similarly, pay discrepancies included payments made for making the team and performance-based bonuses. The WNT players allege the USSF’s acts of intentional gender discrimination extend into playing, training and travel conditions, promotion of games, support and development for their games, among other things. Nevertheless, despite these seemingly strong allegations, the USSF is not folding, and, in some respects, is doubling down on its defenses.

On May 6, the USSF filed its answer to the complaint, which outlined its primary defenses. The USSF’s primary defense is that the women of the WNT and the men of the MNT simply are not comparable. For example, one of the USSF’s claims is quite simply that “WNT players and MNT players receive fundamentally different pay structures for performing different work under their separate collective bargaining agreements that require different obligations and responsibilities.” In short, the USSF maintains that players on the MNT and WNT do not hold the same job positions, and the USSF merely followed the respective collective bargaining agreements. The USSF argues the WNT and MNT are separate organizations competing 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.” Moreover, the USSF can admit that women are treated differently without conceding liability by showing that the differences are not due to sex, but some other factors. Nonetheless, it is clear from the USSF’s answer that the WNT’s quest for equal pay will not be easy as both sides entrench themselves in their respective legal positions.

The USSF did not just rely on its answer to the complaint in defense of its actions. Taking a play from the WNT players’ handbook, U.S. Soccer President Carlos Cordeiro gained media exposure on July 29, when he penned an open letter to U.S. Soccer friends, colleagues and supporters. Similar to the arguments in the USSF’s answer, Cordeiro noted that “in the case of our men’s and women’s national teams, they have different pay structures, not because of gender, but because each team chose to negotiate a different compensation package with U.S. soccer.” Cordeiro’s letter included a fact sheet that stated, among other things, that “over the past decade, U.S. Soccer has paid our Women’s National Team more than our Men’s National Team,” specifically $34.1 million compared to $26.4. million. In response, Molly Levinson, spokesperson for the WNT, stated that the fact sheet “is not a ‘clarification.’ It is a ruse.” According to Levinson the USSF cannot deny that “for every game a man plays on the MNT, he makes a higher base salary payment than a woman on the WNT. For every comparable win or tie, his bonus is higher. That is the very definition of gender discrimination.”

Regardless, the public response by Cordeiro may have been made with the intent to not only sway public opinion, but to also gain bargaining power at the parties’ mediation. The WNT is not used to losing battles on the field and may not want to leave it up to a judge, through a potential summary judgement ruling, or a jury to decide their fate in the court battle. At least at this stage, neither side is making a breakaway, and a final whistle may be far away.•

• Ryan Fox and Craig Williams are partners at Fox Williams & Sink LLC in Indianapolis. Opinions expressed are those of the authors.