International team sports have long been plagued by gender discrimination, and US soccer is no exception. The US Women’s National Soccer Team’s (“WNT”) recently-filed lawsuit gets directly at this issue and confronts some difficult questions. The US Senior Men’s National Soccer Team (“MNT”) hasn’t exactly been setting the world on fire. The MNT didn’t even qualify for the last World Cup. Yet, year after year, soccer enthusiasts promise that the time for men’s soccer in this country lies just ahead. So far it remains somewhere ahead. US men’s soccer is mired in mediocrity.
The WNT is in an entirely different place altogether. US women’s soccer has been globally dominant for some time—the WNT won the World Cup in 1991, 1999, and 2015. During that same time period, it never finished worse than third. Moreover, WNT players frequently become legitimate stars. Many recognize names like Abby Wambach, Alex Morgan, Hope Solo, Carli Lloyd, Brandi Chastain, and Mia Hamm. Famous US male soccer stars are few and far between.
Those bemoaning the state of US soccer are, consciously or unconsciously, ignoring half of the picture. Such bias prompted the WNT to take action. On International Women’s Day all 28 members of the WNT filed a collective and class action suit against the United States Soccer Federation, Inc. (“USSF”) in the US District Court for the Central District of California on behalf of themselves and all current and former WNT players who were subject to the USSF policies and practices at issue. The plaintiffs are bringing gender discrimination claims under the Equal Pay Act, Fair Labor Standards Act, and Title VII of the Civil Rights Act of 1964. In the Complaint, the plaintiffs allege that USSF pays WNT members less than it pays MNT men and that USSF otherwise discriminates by denying women equal playing, training, and travel conditions; equal game promotion; equal game support and promotion; and other terms and conditions of employment equal to that of the MNT.
The USSF employs the female and male professional soccer players on the WNT and MNT, respectively. The plaintiffs hone in on facts showing that they are similarly situated to those on the MNT. According to the Complaint, the USSF requires both the WNT and MNT to be available for USSF mandated training and games; maintain a high level of athleticism and soccer skills to allow them to compete at the highest level; not use performance enhancing drugs or otherwise harmful substances; serve as spokespeople for soccer and help develop the sport in the US; participate in requests for interviews; have autograph sessions; attend training camps; travel nationally and internationally for competitions; and comply with USSF’s rules and regulations.
Perhaps the most powerful Complaint paragraphs revolve around areas where the WNT is not just equal to the MNT, but superior, and in many ways convincingly so. For example, the WNT has won three World Cup titles and four Olympic Gold Medals while the men can point to no such accomplishments. But the successes don’t stop on the field. The Complaint states, “The July 5, 2015 World Cup title game garnered approximately 23 million viewers, making it the most watched soccer game in American TV history.” The plaintiffs further claim that the WNT’s net profit exceeded that of the MNT during the relevant time period. Moreover, Herrmann & Murphy’s attorneys have traveled internationally to support only one of the our country’s national soccer teams—and it wasn’t the one that Trinidad and Tobago knocked out of World Cup contention.
Nevertheless, the USSF pays WNT players significantly less than men on the MNT. As the WNT players allege, “The pay for advancement through the rounds of the World Cup was so skewed that, in 2014, the USSF provided the MNT with performance bonuses totaling $5,375,000 for losing in the Round of 16, while, in 2015, the USSF provided the WNT with only $1,725,000 for winning the entire tournament.”
Yet, this is far from a slam dunk—or open goal?—case. The USSF will likely argue that the WNT’s recent surge in net profit is an anomaly, and that the men, over time, generate significantly more revenue. In contrast, the WNT will attempt to show that 2016 was not an anomaly and projections indicate that they will continue to generate substantially more revenue than the men in the future.
The USSF will also contend that, even though the pay differs, the jobs are distinct enough to avoid legal liability. The Equal Pay Act does not require the work to be identical, but it must be substantially equal. One substantive way that the USSF could prevail is to convincingly make the case that the WNT and MNT jobs are not substantially equal.
For example, the road to qualifying for the Women’s World Cup generally involves five games over two weeks while the MNT plays 16 games over two years. However, the WNT play more matches annually than the MNT. The USSF will also argue that the pay plans differ for each league. WNT members earn a base salary and game bonuses, while MNT players operate on a pay-for-play model, and these distinct pay models came into existence through separate collective bargaining agreements. What’s more, the World Cup bonus pool is set by FIFA, not the USSF, and FIFA allocates significantly more money to the men’s teams than the women’s teams. In summary, the USSF’s position will be that the WNT and MNT are so dissimilar that expecting equal pay is neither warranted in fact or by law.
The WNT players’ lawsuit will undoubtedly continue to garner attention as the Women’s World Cup approaches this summer. Regardless of how things unfold legally, the pay practices outlined in the Complaint seem unfair at best and blatantly discriminatory at worst. Even though we remain far from achieving it, equal pay for equal work should be an uncontroversial idea. Here, equal pay seems like a no-brainer for the USSF given that a powerful argument exists that the WNT should actually be paid substantially more than their male counterparts given their much greater successes. We believe that they will win!
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