During the 2019 Women’s World Cup, the United States Women’s National Team (“WNT”) defeated the Netherlands to secure their second consecutive World Cup title and fourth overall. However, the team had a much bigger score to settle behind the scenes with their employers, the United States Soccer Federation (“USSF”).
In March 2019, the WNT filed a lawsuit in Los Angeles’ District Court against USSF. The team sought nearly $67 million in damages under the Equal Pay Act and Title VII of the Civil Rights Act. The class action by 28 members of the women’s national team centered on claims of discriminatory pay and working conditions that paled in comparison to the Men’s National Team (“MNT”).
An Established Relationship Turns Sour
The main argument presented by USSF surrounds the women’s collective bargaining agreement. USSF oversees both the men’s and women’s national team and works with each team’s unions to negotiate separate contracts. The MNT is on a “pay-to-play” agreement and is paid based on their participation in training camps and games, receiving bonuses for the team’s wins. As for the women, in 2013, the WNT entered into a contract with USSF that provided players a guaranteed salary with smaller bonuses. Additionally, this contract negotiated health benefits and housing allowances for members of the women’s team.
Why was there a difference? For background, the National Women’s Soccer League (“NWSL”) was still relatively new in 2013. At the time, players were unsure if the league would even exist five years from then; ergo, steady pay was an uncertainty. Even further, while the MNT could rely on their MLS team contracts, which guarantee the first 24 players on each team a sizeable base salary, the newly-formed NWSL struggled to guarantee starting players a livable wage. With families and livelihoods on the line, it was likely more reliable for these players to be on “contract” than the MNT’s “pay-to-play” format.
In 2016, when it was time for the WNT contract to expire (and the NWSL was on solid ground and the WNT had won another World Cup), the women came to negotiations to receive the same bonus-style pay as the men. While a new contract emerged in 2017, the parties could not successfully negotiate an agreement that contained bonuses and a guaranteed salary equal to the men’s compensation. No evidence indicated the women were ever offered a pay-to-play contract on the same pay structure as the men, despite the MNT failing to perform on the same level as the WNT.
What resulted from these two contracts were massive pay disparities among the MNT and WNT. In 2019, each member of the WNT received $250,000 in compensation for their World Cup win. For comparison, had the MNT won the tournament, each player would have received around $1.1 million.
Due to delays related to COVID-19, the team’s case reached court in May 2020, and the decision handed down was less than desirable for the World Champions. In hearing both side’s requests for summary judgment, the District Court sided with USSF on the claim of discriminatory compensation.
The WNT highlighted the differences in bonus pay for the two teams, arguing that it’s based on gender discrimination. Whereas USSF argued that when looking at income in total (including benefits, salary, bonuses, etc.), the women made equal, or more than, the MNT. The WNT responded by noting the difference in the number of games, popularity, and tournaments. In total, the women might be paid more, which is solely because they work more. The Court was left unconvinced and found that the evidence presented did not create a genuine dispute of fact. The District Court determined that the WNT players thereby did not establish a prima facie case under Title VII. As a matter of law, the District Court granted USSF’s motion for summary judgment.
However, there might still be some vindication for the USWNT. While the court granted summary judgment concerning the Title VII claim, the women’s claim of discriminatory working conditions survived USSF’s motion for summary judgment.
According to filings with the court, the WNT presented evidence that the team suffered from lesser field conditions, more inferior travel accommodations, and fewer medical and training support staff. The filings cite sheer support and development discrepancies coming from USSF, all favoring the men.
Under Title VII, the elements for a prima facie cause of action for disparate treatment are:
(1) the plaintiff belongs to a protected class; (2) the plaintiff was performing their job adequately; (3) the plaintiff suffered an adverse employment action; and (4) similarly situated individuals outside the plaintiff’s protected class were treated more favorably, or other circumstances give rise to an inference of discrimination.
USSF did not dispute that the women are members of a protected class and admitted they were performing their job adequately. However, USSF argued that the unequal working conditions were motivated by lack of time or money, not because of any animosity. The burden shifted back to the WNT, who then needed to show that these “legitimate reasons” proffered by USSF were pretextual to more profound gender discrimination.
The WNT argument for disparate treatment rested on the difference between the field surfaces and the number of charter flights provided for the two teams. The Court determined that the WNT did not have enough evidence to overcome USSF’s argument that the lesser field surfaces were due to financial, not discriminatory reasons. However, the Court found sufficient evidence regarding unequal travel accommodations for the issue to go to trial. The spokesperson for the WNT, Molly Levinson, has already gone on record saying they will appeal the District Court’s decision.
As of December 2020, the Women’s National Team reached a settlement with USSF regarding their claim of unequal working conditions. Newly appointed USSF President, Cindy Parlow Cone, expressed the federation’s desire to work alongside the USWNT moving forward. While this agreement indicates the beginnings of a good working relationship for the two sides, Molly Levinson re-iterated that this settlement, while positive, does not account for the years of unequal pay between the two teams. Currently, the USWNT still plans to appeal concerning their equal pay claims.
Where Does Equal Pay Now Stand?
In the court documents, the Judge briefly dismisses the team’s argument that they were only paid more because they worked more. But sportswriter Caitlin Murray posed the question: hypothetically, what if it were the men’s team that made it to the World Cup? Murray argues that if they had, the men would have been paid more, and the question of equal pay might have been a lot closer.
For context, the MNT did not even qualify for the tournament. Meanwhile, the women’s team played qualifiers, group stages, semi-finals, finals, and then returned and competed in a victory tour. The men’s contract is dependent on their own success, so it logically follows that an unsuccessful team would not reap the full benefits of their contract. Therefore, you cannot rely on the actual pay received by the teams in 2019 because you would not be comparing successful men’s and women’s teams. Rather, the District Court compares the pay rate to a fully realized and paid-out WNT contract, to the MNT’s pay without their performance bonuses. This argument was left unaddressed in the released documents, but it may hold up in an appeal.
Since the May decision, companies like Coca-Cola, Volkswagen, Nike, and more who sponsor the WNT, have released statements supporting the team’s fight for equal pay. For the sake of sheer financial and media interests, it might be in USSF’s favor to return to the negotiation table rather than the courtroom.
At the end of the day, USSF needs to be cognizant of the message it presents not only to female soccer fans but to young girls who might one day fill the shoes of soccer greats like Alex Morgan and Megan Rapinoe. There comes the point where you want to be remembered for being on the right side of history. Besides, with four World Cup titles under their belt and no sign of letting up soon, equal pay seems like a fair trade.