THE HEADLINE-GRABBING GENDER DISCRIMINATION AND PAY INEQUALITY CASE OF THE U.S. WOMEN’S SOCCER TEAM

On March 8, 2019 in a heftily symbolic gesture of the date coinciding with “International Women’s Day” the United States Women’s National Soccer Team filed a class action case against the United States Soccer Federation alleging willful violations of the Equal Pay Act as well as violations of Title VII of the Civil Rights Act.

The Equal Pay Act was passed by the United States Congress in 1963 to remedy longstanding wage discrimination against women, who had typically received less monetary compensation than men performing the same and similar types of jobs. (29 U.S.C. Section 206.) Pursuant to the Equal Pay Act, employers are mandated to compensate men and women equally for doing the same work. However, there are several exceptions to this provision which result in certain differences in pay which do not meet the legal threshold level of wage discrimination. Those exceptions are: A) A Seniority System; B) A merit system; c) A productivity system or D) Any factor other than gender and/or sex. Delving into the intricacies of the exceptions to the EPA is beyond the scope of this article, suffice it to state that the United States Women’s Soccer Team’s allegations in the lawsuit all but refute and rebut all affirmative defenses to the exceptions of the Equal Pay Act.

Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating against employees based on sex, race, color, national origin and religion.

The Equal Pay Act is clear in its mandate that men and women who perform in the same establishment and perform the types of employment that require equal levels of effort, skill, and responsibility should be paid on an equal basis. The law is applicable to nearly all public and private employers, and employers can have legal exposure for wage discrimination even if they had no overt intent to discriminate.

The salient and compelling facts that are not in dispute and at the center of the allegations are as follow:

• The members of the Women’s Soccer National Team are paid less than the members of the United States Men’s National Soccer Team DESPITE performing similar job duties for the United States Soccer Federation which is the employer of both the Men’s and Women’s National Soccer Teams.

• The women through their World Cup and Olympic triumphs, have earned more profit for the United States Soccer Federation, have played more games than the United States Men’s Soccer Team, and have obtained higher television ratings for the Federation. This claim, as stated in the body of the Class Action Complaint, is buttressed by the fact that the women have won 3 World Cup Titles, Four Olympic Gold Medals, and have consistently been ranked as Number 1 in the world for the 10 of the last 11 years with the coda of the 2015 and 2019 World Cup title games garnering the most-viewed soccer games in American TV history at the time.

• The women have expended more time in training camps and playing games than the men due in large part to their on the field success. From 2015-2018, the women played a total of 19 more matches than the United States Men’s National Soccer Team.

• According to the Complaint and backed by empirical data, the United States Federation provides unequal playing, training and travel arrangements, and disparate promotion for the games between the United States Men’s National Soccer Team and the United States Women’s National Soccer Team. By way of example, from 2014-2017, the women played 21 percent of their domestic matches on artificial turf compared to two percent for the men. (this is noteworthy since artificial turf is known to lead to more injuries to players for the hardness of its surface and scant malleability of its surface). In 2017, the United States Soccer Federation chartered at least 17 flights for the men’s national team and did not charter any flights for the women’s national team. The United States Soccer Federation also priced the tickets for the women’s games at a lower rate than the ticket prices for the United States Men’s Soccer Team games.

The United States Soccer Federation rejected a request for equal compensation at the time of the negotiation of the new collective bargaining agreement that commenced on 2017 and terminates on 2021. The United States Soccer Federation declined to entertain a proposal for a “revenue sharing model” that would put to the test the Federation’s assertion that “market realities” do not justify equal pay for women. Under this model, player compensation would increase in years in which the United States Soccer Federation derived more revenue from the Women’s National Team’s activities and player compensation would be less if revenue from those activities declined. Said proposal put forth by the United States National Women’s Soccer Team displayed the players’ willingness to partake in the risks and rewards of the economic success of the Women’s National Team, as stated in the body of the Class Action Complaint. According to the lawsuit, a top women’s player earns as little as 38 percent of what a star men’s player earns with a gap of $164,320. By way of example, the suit alleges that if the Women’s National Team won a grand total of 20 non-tournament games in a year, the top players would earn a maximum of $99,000.00 while a men’s star doing the SAME THING and playing in the same 20 non-tournament games would earn an average of $263,320.

Of noteworthy mention is the undisputed fact that in 2014, the United States Soccer Federation paid the men’s national team $5.375 million dollars in bonuses in the World Cup, despite being eliminated from the tournament in the round of 16. The women in comparison, received $1.725 million dollars after winning the World Cup title in 2015. RELIEF SOUGHT BY THE UNITED STATES WOMEN’S NATIONAL SOCCER TEAM. The purport of the Class Action Complaint filed by the United States Women’s National Soccer Team is to seek the same pay and wages, as well as fair travel, training and game promotion as the members of the United States Men’s National Soccer Team who perform the same and similar tasks of playing on behalf of the United States. They are specifically seeking equality for women in other occupations, as well as for female soccer players of the future.

STATUS OF THE CASE…. Shortly after the victory of the Women’s National Soccer team in the 2019 World Cup tournament, the case was referred to mediation in an effort to reach an amicable resolution and settle the alleged claims made pursuant to the provisions of the Equal Pay Act and the Title VII of the Civil Rights Act. The mediation did not result in a settlement and the parties are headed to a “trial on the merits” in May 2020. However, as in a majority of cases that are litigated, often times, cases do settle on the eve of trial as a “risk-mitigation” tactic. Ultimately, if the case does go to trial, it will be the task of the arbiter of the facts to ascertain if the alleged violations as outlined in the Class Action Complaint can be proven by a preponderance of the evidence and if that burden is met, what economic damages have accrued to which the members of the United States Women’s Soccer Team are entitled. It is this author’s fervent hope that a result is reached that serves the best and highest interest of all parties to the litigation.