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Key Legal and Compensation Issues in the USWNT Equal Pay Lawsuit

The U.S. Women’s National Soccer Team (USWNT) suffered a big blow to its equal pay lawsuit against the U.S. Soccer Federation on May 1, as a federal district court judge dismissed the pay discrimination claims with a partial summary judgment.

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Judge Klausner preserved the players’ claims concerning alleged working conditions discrimination, which included air travel, hotel accommodations and medical and training support. The players have since filed a petition to postpone the trial on the remaining claims scheduled for June 16 and they also seek a declaration from Judge Gary Klausner that there is a final judgment on the players’ pay discrimination claims in order to appeal the ruling.

The players asserted that there is “good cause” for Judge Klausner to stay the trial and grant final judgment. As of now, there is a possibility of two trials. One trial would deal with the claims over working conditions and, if an appeal of Judge Klausner’s order granting summary judgment on the pay discrimination claims is successful, then a second trial would concern the pay discrimination claims.

Judge Klausner granting final judgment on the pay discrimination claims would accelerate the appeals process by about a month and a half. Instead of waiting for the conclusion of a trial that would likely end at the end of June or early July, the players would be able to more immediately file a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit, according to Sports Illustrated legal analyst Michael McCann.

The Root of the Issue

The players alleged several different types of discriminatory treatment, but the core of the lawsuit is that they claimed they were paid less than the U.S. Men’s National Soccer Team for performing similar work. Asserting that the treatment violated the Equal Pay Act (EPA) (and Title VII), the players sought more than $66 million in damages…or, the amount the men would have earned if the Men’s National Team had achieved the exact level of success the USWNT has attained in recent years.

In its motion for summary judgment, the U.S. Soccer Federation (USSF) argued that the players’ claims should be dismissed because both the U.S. Men’s National Team (USMNT) and the USWNT had negotiated their own pay and working conditions in a series of collective bargaining agreements (CBA) which reflected the two groups’ different preferences.  Judge Klausner effectively agreed with USSF in granting the motion and determined that the USWNT voluntarily chose their own payment structure when negotiating the CBA and are therefore bound by the contractual terms for which they bargained.

For example, the USWNT’s CBA emphasized guarantees for the players in the form of fixed salaries, whereas the men’s CBA created a compensation structure much more heavily based on incentives.

USWNT Compensation Structure
For the women, there are various revenue streams. Contracted players have a base pay of $100,000 per year. There are also at least 22 players who are allocated to National Women's Soccer League teams. Tier 1 players — of which there must be at least 11 — make an additional $67,500 per year, while the Tier 2 players make $62,500 per year. These players receive annual salary bumps of $2,500. The USSF, namely the USWNT manager, decides which players will receive Tier 1 or Tier 2 status. The women also have a variety of incentive-based bonuses written into their CBA to cover items such as win bonuses in friendlies, qualifying for the World Cup, winning the World Cup, and so on.

Pay for non-contract USWNT players is governed by seniority. A player making her eighth or more USWNT camp appearance receives $4,000 per call-up. A player called in making less than her eighth appearance receives $3,500 per call-up. These players also participate in the various win bonuses.

USMNT Compensation Structure
The men are paid in similar fashion to non-contract USWNT players, though their appearance fees and bonuses in most cases are considerably higher. For example, making a World Cup team will net a men's player $68,750. A women's player will make $37,500 for making the World Cup squad. A win by the USMNT against a team outside the top 25 in the FIFA rankings will result in each player getting a bonus of $9,375, and a loss will result in a payment of $5,000. For the women, a victory against a team ranked outside the top eight brings each player $5,250, and they get nothing for a loss.

Bernardo Buraglia, CCP, vice president of HR operations and global rewards at Millicom, said the men’s variable compensation structure has become more popular among larger companies in the U.S.

In terms of a total pay comparison, the numbers vary from year to year based on each team's respective World Cup cycle. The most recent filing for 2018 saw only USWNT players among the federation's top-paid employees. The reason for that, however, was because the men’s team failed to qualify for the 2018 World Cup. Had the team made the tournament, the pay of several men's players would likely have far exceeded that of their female counterparts.

Other Compensation Variables 
The respective CBAs handle TV and attendance revenue differently, notes ESPN. For men's games organized by the USSF, the union gets a cut ($1.50) of every ticket sold. The total is put in a pool and distributed among the players. There is no mention in the men's CBA about television viewership.

The women's CBA states that the union receives $1.50 per paid ticket plus 7.5% of every ticket sold above 17,000. The union will also receive a bonus if a game is sold out. The women's union receives a “viewership bonus” if the average viewership on a particular channel for USWNT games grows by at least 10% from the previous year. There is language in the CBA that says if the new men's deal exceeds these numbers, the women will automatically have the same terms applied.

What Lies Ahead

If the players are able to appeal to the Ninth Circuit, a mixed bag of viewpoints could await them. Of the 49 judges and senior judges on the Ninth Circuit, 25 were nominated by Democratic presidents and 24 were nominated by Republican presidents. Any three of the 49 could be assigned to the panel.

Further, McCann explained that the issues in the case are not easily placed into ideological buckets.

“A judge who might be described as “liberal” could rule for the U.S. Soccer Federation on grounds that the players' union agreed to the pay system at the heart of the case and that to hold otherwise could undermine labor-management relations,” McCann writes. “Alternatively, a judge who might described as “conservative” could be inclined to rule for the players given that the original text of the Equal Pay Act stresses “collective bargaining agreements are not a defense” and that “any and all provisions in a collective bargaining agreement which provide unequal rates of pay in conflict with the requirements of the EPA are null and void and of no effect.’”

About the Author

Brett Christie Bio Image

Brett Christie is the managing editor of Workspan Daily.


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