Off the Field Goals: Women’s National Soccer Team Seeks Equal Pay for Equal Play

Written by Aubre G. Dean

 

Introduction

On March 8, 2019, International Women’s Day, the U.S. Women’s National Soccer Team (“USWNT”) filed a lawsuit against the United States Soccer Federation (“USSF”) for gender discrimination. The lawsuit names twenty-eight women as plaintiff, including some of the most recognized names in the sport: Alex Morgan, Megan Rapinoe and Cali Lloyd. Filed in the United States District Court, the complaint alleges that the USSF has created a system of “institutionalized gender discrimination” under both the Equal Pay Act of 1963 (“EPA”) and Title VII of the Civil Rights Act (“Title VII”). The twenty-eight women are also seeking class certification to include any female players since 2015.

Litigation Background

The case comes to the District Court after five players filed complaints with the Equal Employment Opportunity Commission (“EEOC”) in March 2016. After investigating the claims, the EEOC issued the players Notices of Right to Sue allowing them to file a lawsuit within 90 days. The complaint was also filed one month before Equal Pay Day, which took place on April 2, 2019. The complaint itself mirrors those often seen in cases where women are paid less than men performing the same job. The complaint focuses on the fact that a player on the USWNT can make a maximum of $4,950 per game, while a player on the Men’s National Team earns on average $13,166 per game. On average, a female player on the USWNT makes 38% what the male players make.

Legal Basis

Under federal law, an employer may not discriminate in its employee practices on the basis of sex. According to the EPA, men and women must be given equal pay for equal work. In conjunction with that requirement, Title VII makes it unlawful for employers to discriminate against pay and benefits on the basis of sex. Here, once the plaintiffs show a prima facie case of salary discrimination, the burden will shift to the USSF to prove that the pay is justified by one of the four exceptions: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality or work; or (4) a differential based on any factor other than sex.

Comparing the Pay of Men and Women

Often when pay and playing conditions for female athletes is compared to pay of male athletes, the focus turns to whether the same type of revenue is made by the individual sport. Accordingly, the complaint focuses on the fact that the pay gap exists, despite the USWNT’s performance being superior to that of the USMNT, with the female players becoming world champions. As the reigning World Cup Champions, the USWNT will be heading in as one of the favorites to win the 2019 Women’s World Cup. In fact, the USWNT is consistently one of the best teams in the world, having won three of the seven most recent Women’s Cup titles. The USWNT has also placed first in the Olympics four of the six times that women’s soccer has been played. As for the men on the USMNT, the highest they have placed is third in the World Cup, in 1930. This last year the American team missed qualifying for the 2018 World Cup. The bonus for winning the final game of the Women’s World Cup was $1.725 million, a sharp contrast to the $5.375 million paid to the men for losing in the round of 16 in 2014. The complaint states simply: “during the period relevant to this case, the WNT earned more in profits and/or revenue than the MNT.”

The complaint also alleges there are other discriminatory practices being utilized by the USSF. From 2015 to 2018, the women played nineteen more games because of their success. The women played more games on artificial turf than the men and were never flown on a charter plane, despite the men having seventeen flights. The claim also asserts that the lower ticket prices of women’s friendlies and less promotion of matches led to “USSF-manufactured revenue depression.” Additionally, the complaint also focuses on the attention and revenue that the USWNT has brought to the sport of soccer. In 2015, more than 23 million viewers in the United States tuned in to Fox to watch the USWNT beat Japan in the final round of the Women’s World Cup. To date, this is the largest audience in American history for a single soccer event.

Conclusion

The outcome of the lawsuit is unclear, and the women will most likely not get their shot at this goal before they head to France for the 2019 Women’s World Cup. Further, the USSF has rejected pay alternatives proposed by the USWNT players association, including a compensation model where the women would only receive more money in the years that the USSF derives more revenue through USWNT. However, this suit means more than just a paycheck for the women as it shines light on the gender pay gap in athletics and creates a motto of “equal play, equal pay” which is rippling throughout the sports world.

Sources

Complaint for Petitioner, Morgan et al., No. 2:19-CV-01717 (C.D. Cal. 2019)

Andrew Das, U.S. Women’s Soccer Team Sues U.S. Soccer for Gender Discrimination, N.Y. Times, (March 8, 2019).

Laurel Wamsley, U.S. Women’s Soccer Team Sues U.S. Soccer For Gender Discrimination, All Things Considered, (March 8, 2019, 1:38 PM),

Civil Rights Act, 42 USCS § 2000e (1964).

Equal Pay Act, 29 U.S.C. § 206(d) (1963).

Photo courtesy of Alex Morgan, Twitter.

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