Goal: U.S. Women’s Soccer Settles Equal Pay Lawsuit

This week, equal pay for women in the workplace spotlights U.S. Women’s Soccer. The U.S. Women’s National Soccer team has been advocating for equal pay for six, yes six, years.

They have been relentless in their pursuit of equal pay, and the payoff has finally arrived.

The U.S. Soccer Federation agreed to settle with the 61 players of the U.S. Women’s team for $22 million in back pay, an apology and acknowledgement that they were (grossly) underpaid compared to the men’s team, and the creation of a $2M fund for members of the team to tap into for charitable and post-career endeavors (with each player able to apply for up to $50,000).

And, the USF promised that in the future, it would pay both the men’s and women’s teams equally, including in tournaments.

So, yeah, that happened, in a major win in the attempt to eradicate (or, at least chip away at) sex discrimination in national women’s sports.

How Did This Legal Battle Start? Let’s Go Back To 2016

First, in 2016, I wrote here and here about the U.S. Women’s Soccer team battle for pay that’s commensurate with their male counterparts.

In 2016, the U.S. Women’s team, led by Hope Solo at the time (and now led by Megan Rapinhoe), filed a wage discrimination claim with the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the federal anti-discrimination laws, alleging violations of the Equal Pay Act of 1963 (EPA).

The gravamen of the U.S. Women’s team’s claim: despite repeated, consistent victory on the field and substantial increased revenue for  the U.S. Soccer Federation, U.S. Soccer paid the women less than it paid the U.S. Men’s team.

Remember, the women alleged they were paid 40% less than the men’s team even though the women’s team has four World Cup titles and the men have…you guessed it…zero.

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What Are The Elements And Defenses Of An Equal Pay Claim Anyway?

To make out a prima facie case of equal pay discrimination, which is a type of sex discrimination, the U.S. Women’s team had the burden to show that the skill, effort, and responsibility required in their job performance equaled those of higher-paid males. The work did not need to be identical, just substantially similar.

To effectively rebut an EPA claim, U.S. Soccer, the employer here, had to 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.

U.S. Soccer defended it position as follows:

  1. Claiming that any unequal pay differential stemmed from reasons “other than sex”; and
  2. Claiming 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.

What Happened Next And When?

Then, in March 2019, on International Women’s Day, the team filed a class action lawsuit in the U.S. District Court in Los Angeles against the U.S. Soccer Federation alleging unequal pay, practice time, medical treatment, and other benefits and accusing it of “institutionalized gender discrimination.”

Whoa. The lawsuit made big news.

I told you all about it on this blog.

Again, the team had to demonstrate that the skill, effort, and responsibility required in their job performance are equal to those of a higher-paid male employee. The work just had to be substantially similar, which is, as so many things are in the law, a fact-specific determination.

According to the Wall Street Journal, USWNT games on average earned more revenue than the men’s games over the last three years, which cited audited financial reports from U.S. Soccer.

The reports also disclosed that between 2016 and 2018, USWNT games generated $50.8 million in revenue while USMNT games generated 2% less, $49.9 million.

The parties mediated.

2020 Rolled Around, And It Seemed That The U.S. Women’s Claims Would Take The Loss

In May 2020, the U.S. District Court for the Central District of California granted partial summary judgment to U.S. Soccer in the pay equity class action lawsuit, dismissing the U.S. Women’s team’s argument that U.S. Soccer systematically underpaid the women in relation to the earnings of the U.S. men’s national soccer team.

The result: $66M in damages down the drain. The U.S. Women’s team’s remaining claims included the lack medical and training support and discriminatory working conditions based on travel accommodations.

Important to the court was that an employer may offer different pay schemes when a collective bargaining agreement is involved, and, here, both the women’s and men’s team previously negotiated different collective bargaining agreements with U.S. Soccer.

So, was there no unequal pay? Is this really about the men’s team having better negotiators?

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Wait, the judge also found that, actually, the women’s team made earned more in total compensation than the men’s team.

A trial date came and went, while, in 2021, the women’s team players appealed the decision.

Then…

The Parties Settled

Though the 2020 summary judgment decision may have indicated all was lost to the U.S. Women’s team’s claims, yesterday, the U.S. Women’s team players settled with the U.S. Soccer Federation over their equal pay lawsuit, contingent on a new collective bargaining agreement. 

In a joint statement, the players and U.S. Soccer said:

… The U.S. Women’s National Team players have achieved unprecedented success while working to achieve equal pay for themselves and future athletes. Today, we recognize the legacy of the past USWNT leaders who helped to make this day possible, as well as all of the women and girls who will follow.

Employers, It’s Time To Take A Look At Your Pay Practices

This case may have ripple effect in women’s sports, which, in turn, is a lesson for employers: audit your pay practices and compensation data to ensure you pay employees equal pay for equal work.

One business goal for 2022: ensure equal pay.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.