Judge sides with U.S. Soccer in USWNT's equal pay lawsuit

May 2, 2020, 6:39 AM

A federal judge in California ruled in favor of the United States Soccer Federation on most of the key points in the ongoing wage discrimination lawsuit brought by members of the U.S. women's national team player pool, dealing a potentially fatal setback to the players in the high-profile case.

Players based the lawsuit filed last year on two grounds: first, that U.S. Soccer violated the Equal Pay Act by paying them less than members of the men's national team; and second, that the federation discriminated against them under Title VII of the Civil Rights Act of 1964, specifically with regard to workplace conditions.

Judge R. Gary Klausner on Friday ruled for U.S. Soccer's motion for summary judgment with regard to the Equal Pay Act, stating in his decision that the players "have not demonstrated a triable issue that WNT players are paid less than MNT players."

Klausner's ruling was informed by the federation's contention that women's players were paid more in total and on a per-game basis than their male counterparts were during the period in question. Friday's ruling cited as undisputed fact that from 2015 to 2019, the women's national team averaged $220,747 per game in total payments (for a total of $24.5 million), while the men's national team averaged $212,639 per game in total payments (for a total of $18.5 million).

Those figures do not include compensation women's players receive from U.S. Soccer for play in the National Women's Soccer League.

In certifying Carli Lloyd, Alex Morgan, Megan Rapinoe and Becky Sauerbrunn as class representatives in the suit in November, the court ruled against U.S. Soccer's reliance on total compensation. The federation argued at the time that the four players lacked standing because they earned more in total than male counterparts. In siding with the plaintiffs at that time, Klausner cited precedent that total compensation alone was insufficient -- a woman could earn more in total but still be paid at a lesser rate to violate the Equal Pay Act.

But Friday's ruling stated that the plaintiffs had failed in the intervening months to further establish that they earned more in total compensation "due solely, or in material part, to the WNT working more than the MNT."

Instead, the differences in collective bargaining agreements between the women's team and the men's team proved to be the undoing of the EPA claims.

Klausner effectively concluded that differences in payment structure were the result of choices made by the women's players and their union -- including guaranteed annual salaries of at least $100,000 for 20 contracted players -- and not discrimination by the federation.

The 32-page ruling went through a detailed history of the collective bargaining process that led to the current CBA between U.S. Soccer and the USWNTPA that was signed in 2017. Klausner noted that representatives for the players rejected a pay-for-play model identical to the men early in those negotiations in 2016. In later negotiations, the players offered a counterproposal with lesser bonuses than the federation's offer in exchange for more contracted players and higher base salaries -- benefits not part of the CBA between U.S. Soccer and the men's union.

Therefore, while the women's players argued that, after winning the World Cup in 2015 and 2019, they would have made more money under the terms of a men's CBA, which offered higher game bonuses, the court noted that there was "indisputably economic value" to the guarantees included only in the women's CBA.

"Merely comparing what WNT players received under their own CBA with what they would have received under the MNT CBA discounts the value that the team placed on the guaranteed benefits they received under their agreement," the ruling stated, "which they opted for at the expense of higher performance-based bonuses."

U.S. Soccer relied almost exclusively on that line of argument after its inflammatory filings in March that led to the resignation of Carlos Cordeiro as president and apologies from his successor, Cindy Parlow Cone. In those filings as part of the summary judgment process, U.S. Soccer argued that the women's players did not meet EPA requirements for performing equal work because it alleged they were physically inferior to men's players and that the women's game carried less responsibility than the men's game.

Some prominent members of the women's national team reacted to the decision on social media Friday.

Presidential candidate Joe Biden on Saturday tweeted his support for the players and threatened to cut off funding for the men's World Cup in 2026 if he is elected and the women do not receive equal pay. The U.S. will co-host the 2026 World Cup with Mexico and Canada.

Last July, the Give Our Athletes Level Salaries (GOALS) Act to was introduced to Congress to prohibit funds for the 2026 World Cup unless the USSF provided equal pay to the USMNT and USWNT. It was referred to the House Committee on Foreign Affairs.

The court's decision Friday also granted in part U.S. Soccer's motion for summary judgment with regard to the Title VII claims, ruling that the federation did not discriminate against players by having them play more games on artificial turf than men's players during the period in question.

The bulk of the games in question came during the Victory Tour after the 2015 Women's World Cup, which under FIFA management was played entirely on artificial turf in Canada. The U.S. played seven games on artificial turf in the 10-game tour, including a game in Hawaii that was canceled because of what were deemed unsafe field conditions in Aloha Stadium. Rapinoe tore her ACL in practice two days prior.

But Klausner ruled that the federation was not acting in a discriminatory manner because of its professed intent "to spread National Team games across various cities in various regions of the country, the relatively large number of games required to be played in a relatively short period of time during fall and winter, and the desire to prioritize venues with grass fields for 2016 in preparation for the 2016 Olympics."

The women's team also played three games on artificial turf in the summer and fall of 2017.

Klausner accepted as legitimate the federation's contention that it did not anticipate generating enough revenue from those games to merit installing temporary grass fields. He noted "the issue to be decided in this case is not whether USSF employed good management practices but whether it discriminated against Plaintiffs."

The court left unsettled only the plaintiffs' Title VII claims regarding discrimination in charter flights and hotel accommodations and medical and training support.

A spokesperson for the players indicated they planned to appeal.

"We are shocked and disappointed with today's decision, but we will not give up our hard work for equal pay," said Molly Levinson, spokesperson for the plaintiffs. "We are confident in our case and steadfast in our commitment to ensuring that girls and women who play this sport will not be valued as lesser just because of their gender.

"We have learned that there are tremendous obstacles to change; we know that it takes bravery and courage and perseverance to stand up to them. We will appeal and press on. Words cannot express our gratitude to all who support us."

Parlow Cone has said she hopes the suit can settle before a trial. 

"We look forward to working with the women's national team to chart a positive path forward to grow the game,'' the USSF said in a statement. "We are committed to continuing that work to ensure our women's national team remains the best in the world.''

Earlier Friday, the women asked that Parlow Cone be included as a trial witness. Their lawyers said although the federation backed off earlier arguments saying women were inferior to their male counterparts in skill and effort, it still planned to contest differences in responsibility.

The original trial date of May 5 was postponed until June 16 due to the ongoing coronavirus pandemic.

The Associated Press contributed to this report.