Alicia Jessop is an assistant professor of law at Pepperdine University, a sports attorney and a writer who focuses on the intersection of sports, business and the law.
And this time, the women stand a good chance to win because of their recent performance on the field — and how much better they’ve been than the men’s team.
The lawsuit, filed in U.S. District Court for the Central District of California, in Los Angeles, alleges gender-based pay discrimination under the Equal Pay Act and Title VII of the Civil Rights Act. The plaintiffs’ success in these claims will hinge on how the court evaluates their recent successes on and off the pitch. According to the complaint, despite greater success than the U.S. men’s national team, the women’s team has consistently been paid drastically less. The women won the 2015 World Cup and shared a bonus of $1.73 million; the men lost in the Round of 16 in the 2014 World Cup and split $5.38 million in performance bonuses. The men, of course, didn’t even make the 2018 World Cup.
Central to the lawsuit is an evaluation of whether members of the men’s and women’s teams perform substantially the same job. Historically, courts have upheld wage disparities between men and women in sports under assertions that men face greater physical and public pressures than women performing jobs in the same field. But filing the complaint in California may help meet that bar, as a 9th Circuit pay discrimination case brought by former University of Southern California women’s basketball coach Marianne Stanley could provide a favorable precedent for the plaintiffs.
In Stanley’s case, the U.S. Court of Appeals for the 9th Circuit found that the University of Southern California did not violate the Equal Pay Act even though it paid Stanley significantly less than its men’s basketball head coach, George Raveling. The court determined Stanley and Raveling did not perform substantially equal jobs, because the university required more public relations and fundraising activities of Raveling, and the men’s team generated more fan interest and revenue.
But that decision could help the women’s soccer players. Because compared with Stanley’s case, the roles and status between the genders in this case are flipped. In recent years, the U.S. women’s team has outperformed the men’s national team by consistently being ranked No. 1 worldwide and winning the Women’s World Cup in 2015 and gold medals in the 2004, 2008 and 2012 Summer Olympics. While the women’s team enters this year’s Women’s World Cup as favorites, the U.S. men failed to qualify for the 2018 World Cup, didn’t advance past the knockout stage in the 2014 World Cup and hasn’t secured an Olympic medal since 1904.
Because of the U.S. women’s national team’s recent success on the pitch, team members have faced increased performance and public relations demands, while enjoying higher viewership ratings. The lawsuit alleges that while members of the men’s and women’s teams are subject to the same training expectations, the women’s team completed 19 more games between 2015 and 2018. Following the team’s 2015 World Cup victory, members engaged in a U.S. stadium tour attracting tens of thousands of fans. According to the lawsuit, the federation’s budget projection was shifted from a combined net loss for both teams of $429,929 to a profit of $17.7 million. The U.S. women’s national team has also outpaced the men’s national team in viewership, as its 2015 Women’s World Cup championship game is the most watched soccer game in American history — for either gender.
U.S. Soccer will probably use labor law to defend against the lawsuit. After a contentious period following the expiration of the parties’ collective bargaining agreement in 2012, U.S. Soccer and the union for the U.S. women’s national team entered into a new collective bargaining agreement in 2017. Ratified into this agreement was a pay structure for members of the women’s national team. U.S. Soccer will probably argue that members of the team agreed to be paid less than men, and if they want to change their current pay structure, they can attempt to do so in the next collective bargaining session. The current CBA expires in 2021.
But the plaintiffs’ allege that during the most recent negotiations, women’s national team members requested pay at least equal to men’s national team members and were denied. Evidence surrounding discussions during the most recent CBA negotiations, and the climate between U.S. Soccer and the plaintiffs before and during those negotiations will play a central role in the current wage discrimination case.
Along with defenses U.S. Soccer will raise, the plaintiffs face another challenge: The lawsuit seeks to be certified as a collective action. In obtaining collective action certification, the plaintiffs would bring their claims against U.S. Soccer on behalf of any person who was a member of the women’s national team from February 2015 onward. One difficulty there will be that in 2018, former goalkeeper Hope Solo filed a lawsuit against U.S. Soccer alleging violations of the Equal Pay Act and Title VII. Notably, Solo’s attorney is Richard Nichols, the former attorney for the U.S. women’s national team’s union.
The case isn’t likely to be wrapped up before the team takes the field in France this summer — unless it’s dismissed quickly. Soon, U.S. Soccer will file a response to the complaint, where it is likely to categorically deny the allegations and seek dismissal. If the case is not dismissed, the issue of certification of the collective action must be decided, which could take years. The approaching expiration of the CBA will probably drive both sides to work toward a settlement. But with two wage discrimination lawsuits pending against U.S. Soccer, it’s unlikely a settlement will be reached unless U.S. women’s national team members receive payment equal to U.S. men’s national team members.
So the best way to help their case this summer might just be to win the whole tournament again.
