U.S. Soccer Says Extraordinary Gender Wage Gap Perfectly Defensible

By Amy Epstein Gluck

Two months ago, I wrote here about the wage discrimination claim that the U.S. Women’s Soccer team, led by Hope Solo, co-captains Carli Lloyd and Becky Sauerbrunn, forward Alex Morgan, and midfielder Megan Rapinoe, filed with the EEOC alleging violations of the Equal Pay Act of 1963 (“EPA”).

Despite their repeated butt-kicking performances on the field and the enormous increase to the U.S. Soccer Federation’s coffers in 2015, U.S. Soccer pays them far less than it pays the U.S. Men’s team.

Hands, Suit, Euro, Coin, Bill, Poverty

Why is that?

Last week, U.S. Soccer answered this question when it filed its defense to the U.S. Women’s team’s claim.  It stated two facts that struck me:

One: U.S. Soccer claimed that the players were among the best compensated female players in the world, and that any disparity with the men is a result of the differing nature of their compensation from club teams or an international World Cup bonus structure set by the world soccer governing body FIFA.

Two:  It also claimed that: “Any differences in the compensation paid MNT and WNT players are driven by factors other than gender … Because the record powerfully rebuts the Charge’s claim that the United States Women’s National Team’s compensation is the product of discriminatory animus, the Charge should be dismissed.”

Now, you can read the WSJ or NYT articles yourself about the rest of the defenses alleged and Ms. Solo and her attorney’s reaction to these (ahem!) defenses, but let’s look at the legal aspects and ramifications here.   To effectively rebut an EPA claim, an employer must prove affirmatively that a pay differential between similarly situated male and female employees is defensible due to (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any other factor other than sex.

So what’s next for U.S. Soccer?  How will it prove that the broad, dare I say capacious, pay chasm is based on some factor other than gender?

Well, this employer is spouting about contractual-based issues, but since “any other factor other than sex” is an affirmative defense, the Women’s team need not argue that U.S. Soccer’s proffered legitimate nondiscriminatory reason is pretextual, as they would in a Title VII case alleging only sex discrimination.   Rather, U.S. Soccer has both the burden of production and persuasion.

Statistically, U.S. Soccer claims (according to the WSJ report) that from 2008-15, game revenue for the men totaled roughly $144 million, almost triple the $53 million generated by the women.

Let’s look at some other stats, shall we?

In the 2015 World Cup, the women earned four times less than the men while performing better, i.e., they won!  Not only that but the men have not advanced past the quarterfinals in, no joke, more than 85 years.

According to a recent budget report, U.S. Soccer projects that the women’s team will bring in more than $17 million in revenues, including a $5 million surplus for fiscal year 2017, nearly doubling their male counterparts, who are expected to run a deficit.

With these numbers, it’s tough to tell how U.S. Soccer will carry its burdens of proof.

I’m thinking this case will not get to the jury with the women talking about boycotting the Rio Olympics later this year, but we’ll have to wait and see.

By Amy Epstein Gluck


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]