Gender discrimination in international team sports has long been a fraught issue, and US soccer is no exception. 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 most recent World Cup. Yet, year after year, and decade after decade at this point, US soccer enthusiasts promise that the time for men’s soccer in this country lies just ahead. And it remains just ahead. This isn’t changing any time soon.

Meanwhile, the US Women’s National Soccer Team (“WNT”) is in an entirely different place. 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, and was the runner-up in 2011. Moreover, WNT players frequently become media sensations and legitimate stars. Many recognize names like Abby Wambach, Alex Morgan, Hope Solo, Brandi Chastain, and Mia Hamm. Famous US male soccer stars are much more rare.

When people bemoan the state of US soccer, they are, consciously or unconsciously, ignoring half of the picture. Bias like this has prompted the WNT to take action. On International Women’s Day—March 8, 2019—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 other current and former WNT players who were subject to the USSF policies and practices at issue. Specifically, the plaintiffs are bringing gender discrimination claims under the Fair Labor Standards Act and Title VII of the Civil Rights Act. The Complaint alleges that the USSF pays WNT members less than it pays men on the MNT and that the 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 is the common employer of female and male professional soccer players on the WNT and MNT, respectively. The plaintiffs focus forcefully on facts showing that they are similarly situated to the MNT members. According to the Complaint, the USFF 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 United States; participate in reasonable requests for interviews; have autograph sessions with fans; attend training camps; travel nationally and internationally for competitions; and comply with the 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 have next to nothing to show for themselves. 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 exceeds that of the MNT during the time period relevant to the lawsuit.

Despite this, it is uncontroverted that the USSF pays WNT players significantly less than men on the MNT. For example, the plaintiffs state that “[t]he 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.”

Nevertheless, this is far from a slam dunk—or open goal?—case. The USSF will 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 be significant revenue generators into the future.

More importantly, the USSF will 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 in this lawsuit is to convincingly make the case that the jobs of those on the WNT and MNT 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 to achieve the same end. However, on an annual basis, the WNT plays more matches 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, the USSF will argue, 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 substantially 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 for members of both organizations is neither warranted in fact or by law.

The WNT players’ lawsuit will undoubtedly continue to garner attention as the 2019 Women’s World Cup approaches. Regardless of how it shakes out 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 in this country. 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.

March 28, 2019/by Labor