What Happened—and What’s Next
On March 8, 2019, the US Women’s National Soccer Club (USWNSC) filed a lawsuit against the US Soccer Federation (USSF) for equal pay under Title VII of the Civil Rights Act as well as the Equal Pay Act.
The 28 players bringing the suit claimed the USSF has subjected them to “institutionalized gender discrimination” by not paying the women’s team equally to the men’s team, and asked for both a raise and back pay.
Originally, the trial was scheduled to occur on May 5. But then the coronavirus pandemic happened, and it was rescheduled for June 16.
However, on May 1, Judge Gary Klausner, of the U.S. District Court for Central California in Los Angeles, rejected the central tenet of their lawsuit: that the women’s team was paid less than the men’s team.
This might sound outrageous, but it’s not altogether surprising. The USWNSC always had a higher burden of proof than the USSF. They had to prove that they made less than the men’s team for the same job, and the pay disparity was due to gender discrimination.
All the USSF had to do was disprove one of these assertions—that the women are not in fact paid less than the men, or if they are, the reason is not due to their gender.
Proving pay disparity
Pay disparity might sound like a straightforward issue, but it’s not as cut-and-dry as it looks. The pay structures for both teams are complicated, and are subject to different collective bargaining agreements.
Even so, the women’s team claims that the men are paid more—even though the women’s team is more successful and brings in more money.
According to the USSF, this is mostly due to the amount offered in World Cup prize money by FIFA, a separate organization. In 2018, FIFA’s prize haul was $400 million for the Men’s World Cup and $30 million for the Women’s World Cup—a clear disparity, but the USSF claims this is not its fault.
On the other hand, the USSF does pass on FIFA prize money and bonuses to players on both teams. The USWNSC argued that by passing on these amounts as they are, with pay disparities in place, the USSF is perpetuating FIFA’s discrimination.
The judge disagreed with the USWNSC lawyers’ assertions that the women made less. In his view, the women’s team actually made more in salaries and bonuses from the USSF than the men did within the years in question, not including FIFA prize money.
One complicating factor is that the teams operate under different collective bargaining agreements that define pay structures.
Judge Krausner rejected the women’s claim in part because he believed the women had been offered the same terms as the men’s team at one point, and turned it down. He objected to the idea that the women could “retroactively” regard their collective bargaining agreement subpar to the men’s.
Proving sex discrimination
To win their case, the women’s team had to prove not only that the USSF paid them less, but also that the disparity is directly caused by sexism. It may actually have been easier to prove the second point than the first one.
One of the arguments the USSF could make was that the two teams do fundamentally different jobs, and thus are entitled to different pay. However, when it made a legal filing to that effect, the wording betrayed opinions that could be seen as sexist.
For instance, the USSF lawyers wrote that male soccer players were required to have “[a] materially higher level of speed and strength,” and that the men have “more responsibility” than the women’s team.
This wording certainly sounds dismissive of the women’s speed, strength, skill, and responsibilities.
It’s possible that this line of argument would have been more persuasive—although the women’s team would not have won their case without also convincing the judge that the pay disparity was real.
What’s next for the women’s team
This news is no doubt disheartening to the team and women’s soccer fans everywhere. However, it does not mean the end of the lawsuit.
The women’s team can still bring claims regarding unequal working conditions, such as hotels, flights, medical care, and training. Those arguments are expected to be heard on June 16 as planned.
Are you subject to a pay disparity at work? Talk to a skilled employment lawyer.
If you believe you are being paid less at work because of your gender—or any other discriminatory reason—a knowledgeable Philadelphia employment lawyer can help make sure your rights are protected.
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The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.