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The ongoing legal battle between the United States Soccer Federation and the members of the U.S. women’s national team reached a new development last week as both sides submitted motions for summary judgment in the U.S. District Court for the Central District of California.
On one side are current and former players requesting a partial summary judgment on their gender-based discrimination lawsuit alleging that U.S. Soccer violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964. On the other is U.S. Soccer saying the entire case should be dismissed.
The Equal Pay Act requires that men and women be given equal pay for equal work in the same establishment. And Title VII prohibits discrimination on the basis of race, color, religion, sex, national origin, age, or disability. As noted by the Equal Employment Opportunity Commission, “there is no requirement that the claimant's job be substantially equal to that of a higher paid person outside the claimant's protected class.”
In its motion, U.S. Soccer said, “any pay differential is based on factors other than sex.” Adding, “U.S. Soccer did nothing wrong by agreeing with two different unions to two very different pay structures for the two different teams to recognize their different situations, their different demands in bargaining, and the large differential in potential revenue streams generated by the two teams’ separate competitions.”
The players argue that in order to prevail under the Equal Pay Act, they need only show that U.S. Soccer paid the men’s national team at a rate more than the women’s national team for “performing substantially similar work.” And regarding their Title VII sex-based compensation discrimination claim, they need only show that sex “was a motivating factor for any employment practice, even though other factors also motivated the practice.”
The players’ lead attorney, Jeffery Kessler, said during a 2019 interview: “The specific issues in our case, we have a group of champion women who do exactly the same job as the men do for the United States Federation. They are more successful at it, and yet they make less money than they would make if they had the agreement that the men have.”
What is at stake?
For one, the outcome of this case could fundamentally shift how women are treated in the workplace and settle long-standing disputes regarding whether women in sports should be paid equally. Last year, Australian soccer’s governing body reached a four-year deal with its men’s and women’s national teams to close the gender pay gap.
If it is determined that U.S. Soccer violated the Equal Pay Act and Title VII, economist and vice president of Deiter Consulting Group, Finnie B. Cook, estimates that members of the classes could be awarded as much as $126 million in back pay damages (inclusive of prejudgment interest).
Cook’s expert economic damages report, which was among dozens of exhibits filed along with the players’ motion for partial summary judgment, calculates back pay damages by comparing what each women’s national team player would have earned if they were compensated at the same rate under the men’s national team’s collective bargaining agreement against their actual earnings.
It is Cook’s opinion that the total economic damages for back pay for the Equal Pay Act class are between $28,407,439 - $60,081,478, depending on whether the violation is deemed to be willful or non-willful and if liquidated damages are awarded. For the Title VII class, the total estimated back pay damages are $66,722,148.
Currently, 16-21 players are under contract with U.S. Soccer, with the federation paying each player $100,000. While U.S. Soccer pays some members of the class for playing in the National Women’s Soccer League (NWSL), it is in Cook’s opinion that no adjustments should be made in the back pay damages calculation for compensation paid for playing on NWSL teams.
Cook wrote: “A USWNT’s player’s participation as a player for an NWSL team is a job separate and apart from her job as a member of the USWNT soccer team, as illustrated by the fact that not all USWNT member are paid United States Soccer Federation to play on an NWSL team and most NWSL players are not USWNT members.”
Both parties are scheduled to appear on March 30 before Judge R. Gary Klausner to argue their motions. The judge could rule on some factual issues but leave others for trial. Currently, the trial is set to begin on May 5, which is 11 weeks before the 2020 Tokyo Olympic Soccer Tournament.
