Judge Red Cards U.S. Women’s Soccer Team’s Equal Pay Claim

By Benjamin A. Nucci

The U.S. Women’s National Soccer Team’s (“WNT”) battle to increase pay in line with that afforded to the U.S. Men’s National Soccer Team (“MNT”) was dealt a blow last Friday as a judge dismissed their Equal Pay Act ("EPA") claim. The WNT has dominated the MNT in nearly every aspect of U.S. soccer, from match results, World Cup performances and rankings, to revenue generated. By the time the WNT reached the quarter finals of the 2019 FIFA Women’s World Cup, the players had earned $90,000 in game bonuses. Yet, if the WNT was entitled to the same World Cup bonuses as the MNT, they would have earned $550,000 in game bonuses by that stage.

So, what happened? The answer lies in the collective bargaining agreements negotiated by representatives of both teams.

Background

The U.S. Soccer Federation (“USSF”) is the governing body for soccer in the United States. The USSF selects, funds, trains and manages various U.S. national soccer teams, including the WNT and the MNT. The WNT and MNT are each represented by separate labor unions, and the conditions of the players’ employment are outlined in their respective collective bargaining agreements, including compensation. However, there are fundamental differences in compensation between the men’s and women’s agreements.

The MNT agreement is structured as a “pay-to-play” agreement. MNT players are only compensated if they participate in a training camp or if they make a particular roster. While the MNT players do not receive an annual salary, they receive bonuses based on the team’s performance in certain matches (i.e., win, lose or tie) that vary based on the caliber of the opponent. For example, if an MNT player made the roster for a friendly match against a team with a FIFA World Ranking of 1-10, that player would receive a $17,625 bonus for a win, $8,125 for a tie and $5,000 for a loss.¹

The WNT agreement instead provides for a set number of players to receive an annual base salary, no matter how many games the WNT plays, regardless of whether the contracted player plays the game, and irrespective of the outcome of the game. WNT players are also eligible for game bonuses, but these are a fraction of those available to the men’s team under their agreement. For example, if a WNT player makes the roster for a friendly match against a team with a FIFA World Ranking of 1-4, the player receives a $8,500 bonus for a win and $1,750 for a tie, but $0 for a loss.

However, the women’s agreement provides the WNT with a host of other benefits that aren’t part of the men’s agreement. This includes injury protection, health and dental insurance, pregnancy pay, guaranteed rest time, child care assistance, bonuses for exceeding gross revenue targets, partnership bonuses tied to increased viewership, an annual payment in exchange for USSF’s commercial use of player likeness, and a clause that USSF shall use good faith efforts to schedule a minimum number of WNT games.

The WNT Collective Bargaining Agreement ("CBA") took effect in 2017 and expires in 2021. It was the product of negotiations spanning a year-and-a-half. During negotiations, the women’s union initially pressed the USSF for the same “pay-to-play” game bonuses given to the MNT. However, the issue was dropped and the WNT voted unanimously to ratify the agreement in its current form on April 4, 2017.

Litigation

On March 8, 2019, members of the WNT brought suit in the U.S. District Court for the Central District of California alleging violations of the EPA and Title VII of the Civil Rights Act of 1964.² Plaintiffs claim that the USSF discriminates against the WNT by paying them less than the men’s team for substantially equal work and by denying the WNT equal travel conditions and support services. The USSF denied the allegations and claims that any pay differential is attributable to different bargaining priorities and that many WNT players earn more than MNT players. Both parties moved for summary judgment in early 2020.

Findings

On May 1, 2020, the court granted USSF’s motion with respect to the EPA claims only. Under the EPA, Plaintiffs bear the burden to establish a prima facie case showing: (1) they performed substantially equal work as MNT players, (2) under similar working conditions, and (3) MNT players were paid more. See 29 U.S.C. § 206(d)(1). The court focused on the third element.

Plaintiffs contended that the terms of the CBAs establish as a matter of fact that USSF paid WNT players at a rate less than their male counterparts. Plaintiffs pointed to two key areas – (1) the game bonus provisions in the women’s agreement was substantially less than the game bonus provisions in the men’s agreement; and (2) the WNT players would have received more under the men’s agreement over the past few years than they did in under their own agreement.

The court rejected Plaintiffs’ argument. While the women’s agreement provides for lower game bonuses, the court held that finding an EPA violation based on this “ignores other benefits received by WNT players, such as guaranteed annual salaries and severance pay – benefits that MNT players do not receive.” Citing to the USSF’s expert, the court found that “WNT players received more money than MNT players on both a cumulative and an average per-game basis.”

Importantly, the court rejected Plaintiff-WNT’s comparison between the two agreements as “the MNT and WNT bargained for different agreements which reflect different preferences.” Judge Klausner reasoned:

"The WNT rejected an offer to be paid under the same pay-to-play structure as the MNT and … 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. Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to-play structure when they themselves rejected such a structure."

The court found statements offered by Plaintiffs from various USSF individuals to the effect the WNT players are paid less than the MNT players did not establish a genuine dispute, as the statements alone did “not make it true where, as here, Defendant has presented evidence that the WNT was paid more … than the MNT.”

Next Steps

Stay tuned, as it is only half time in this saga. It remains to be seen whether the Video Assistant Referee, or rather the Court of Appeals, will overturn the U.S. District Court’s on-field decision. Importantly, Plaintiffs’ Title VII claims relating to discriminatory working conditions, specifically travel conditions and personnel support services, were not dismissed and specifically travel conditions and personnel support services, were not dismissed and progress to the next stage of litigation.

Moreover, the women’s agreement expires on December 31, 2021. Given the claims alleged, and the fact that this latest ruling is tied squarely to what was specifically negotiated between the parties, only time will tell whether a new collective bargaining agreement can be reached ahead of the next FIFA Women’s World Cup in 2023. If you ask me, this one is likely headed to overtime.