A Summary and Analysis of the USWNT Employment Discrimination Lawsuit

by Curt Bentley

As I write this post, the United States Women’s National Team (UWSNT) is preparing to play in the final game of the 2019 FIFA Women’s World Cup, with an opportunity to win a second consecutive and unprecedented fourth overall world title.  It’s hard to think of a more successful United States international competition team.

While it’s always fun to watch and support a winner, the USWNT is a joy to watch for reasons outside of on-the-field dominance.  It’s full of strong personalities and hard workers, who, in my estimation, represent the best of America in many ways.  Plus, when you watch women’s soccer, you avoid much of the diving, gamesmanship, and tendency toward chronic whining that you see so often in the men’s game.  What a joy it is to see players making a run toward the goal, and then, when they get bodied off the ball, and perhaps even taken to the ground, hop right back up and continue on with the effort!  But I digress…

As I’ve followed the USWNT’s teams progress through the current World Cup, I’ve heard, as I’m sure most of you have, of the equal pay lawsuit filed by USWNT members.  I’ve heard arguments and counter-arguments.

My initial thought on the matter of equal pay is that pay provided to international team players provided by those players’ country should be equivalent, regardless of gender.  Playing for one’s country is, in a very real sense, a representative position as much as a performance position.  This isn’t a for-profit league these players are participating in (though much profit is generated).  Both genders are representing the United States.  They should be paid equally.

But, as I learned in years as a lawyer, rarely are all of the relevant considerations evident at first glance.  So, as I wait for the World Cup final to start — I Believe That We Will Win! — I decided I’d read the pleadings (lawsuit documents, for the uninitiated) and see what light they offered on the nature of the claims and validity of the counter-arguments.

Case History

As with all employment-related discrimination claims, this case was initiated as an administrative complaint (this is required by law) with the Equal Employment Opportunity Commission.  The original EEOC complaint was filed by 5 current and former USWNT players — Hope Solo (no longer with the USWNT), Megan Rapinoe, Alex Morgan, Becky Sauerbrunn, and Carli Lloyd — a veritable Who’s Who of world-class women’s soccer talent!

After three years, and a failure to resolve the issues raised, the EEOC complainants (minus Hope Solo, who’s no longer with the USWNT), took their complaints to Federal Court via lawsuit in March of this past year, in a class action in which they named all current members of the USWNT as the relevant class.  The timing was obviously not a coincidence, for the claim for equal pay juxtaposed against the USWNT’s expected superior performance in the World Cup certainly provides enhanced visibility.

Claim Summary and Background

The claim is simple: that the United States Soccer Federation (USSF) discriminates against the members of the USWNT by providing inferior compensation in comparison to the men’s team and does so in a manner that can only be explained due to the gender of the players.

How to assess the merits of the claim?  Well, this is where it gets complicated, principally due to the payment structure.  Realize that I’m somewhat out of my depth here, and am relying solely on pleadings and responses, but I’ll do my best to summarize the types of compensation that USSF provides to its athletes.

The USSF employs the members of the men’s and women’s national teams.  It handles the scheduling and marketing for games and pays the players.  The players are each represented by a player’s union, which periodically negotiates a collective bargaining agreement (CBA) with USSF.  The men’s and women’s teams have separate unions and negotiate separate CBAs.  Historically, they do not negotiate CBA’s in the same years, or, necessarily, for the same time periods.

Summary of Compensation Structure

However, certain general types of compensation received by the players on both teams are the same (although the levels do differ, as described below), and I’ve attempted to summarize:

  • Compensation for winning international “friendly” matches.
  • Qualification and performance bonuses for major tournaments, including the World Cup.
  • Per-diem, travel, and other expenses.

In addition, from what I can tell (again, based only on a review of the pleadings), the following benefits are provided only to the members of the USWNT:

  • Base annual salary for USWNT players.
  • Payment of National Women’s Soccer League (NWSL, the female equivalent of MLS) club salary.

And the following benefit is provided only to members of the men’s national team:

  • Compensation for playing in international “friendly” matches, regardless of the result (i.e., men are compensated for losses and draws (at lesser levels) as well as for wins.

The lawsuit also alleges disparity in marketing support, travel accommodations (i.e., charter flights for the men’s team on numerous occasions), and venue quality (the men’s team plays only on grass fields, while the USWNT is often scheduled to play on artificial turf).

Arguments and Statistics

The principal statistics that are the focus of the USWNT’s lawsuit pleadings are these, which initially seem quite damning:

  • Under the current compensation structure, “if each team played 20 friendlies in a year and each team won all twenty friendlies, female WNT players would earn a maximum of $99,000 or $4,950 per game (MY NOTE: $72,000 base annual salary, plus $1,350 per win], while similarly situated male MNT players would earn an average of $263,320 or $13,166 per game against the various levels of competition they would face [MY NOTE: $5,000 per loss, $6,250 – $8,125 per draw, and $9,325 – $17,625 per win, depending on level of competition]. A 20-game winning top tier WNT player would earn only 38% of the compensation of a similarly situated MNT player.” (USWNT Federal Class Action Complaint, para. 58).
  • “The 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. The WNT earned more than three times less than the MNT while performing demonstrably better.” (USWNT Federal Class Action Complaint, para 61).

USSF’s response to these claims is generally four-fold:

  • The USWNT’s players union opted to negotiate a base-salary model, rather than the game compensation only model of the men’s national team, which generally explains the difference in compensation for friendly matches.  Essentially, the men have more upside, but less downside, especially given the fact that USSF contends that the men play in fewer matches per year.
  • The World Cup performance bonuses are generally pass through amounts dictated by FIFA (soccer’s international governing body) and based on the fact that the men’s World Cup generates from 50-100 times the amount of revenue as the women’s World Cup.
  • USSF pays the NWSL club salaries of women’s players.
  • Excluding FIFA-funded World Cup bonuses and NWSL salaries, the WNT players who brought this suit earned more than $3 million for their participation on the WNT from 2012- 2015, roughly 50% more than the total compensation U.S. Soccer paid to the five highest-paid MNT players.

    Even including FIFA World Cup prize money, the five complaining WNT players earned a four-year average of $709,396, only 3.8% less than the top five highest-paid men during this quad, who averaged $737,659. (the paragraphs in this bullet point are copied directly from the USSF response to the initial EEOC complaint filed by members of the USWNT).

So, what to make of all of this?

I’m trying to be relatively brief, but here are my thoughts.  I think there are gender-based disparities, though, as is the case with all lawsuits, it is not so clear-cut and one-sided as things initially appear, especially given USSF’s support of the NWSL.  To equalize pay, I would propose that:

  • The pay for international friendly should be made equivalent.  Playing in friendly matches means playing for the USA in a strictly representative capacity.  The pay structure could identical for both teams (i.e. either base salary + performance bonus [current women’s model], or tiered compensation per match [current men’s model].  Or, if the two teams want a different model, then compensation should be adjusted so that anticipated equivalent performance would provide for equal compensation.  This can be adjusted to the extent that USSF pays club team salaries, but the adjustments should be documented for each player (or tier of players).
  • Tournament bonuses should be passed through at the same level.  Under this structure, there would continue to be significant compensation disparity for, say, World Cup bonus compensation, but to the extent this money is being passed through directly from FIFA, that is a reflection of FIFA, and not USSF.  Any bonuses provided in addition to pass-through FIFA compensation from USSF should be equivalent.
  • Per diem, travel and accommodation quality, and venue quality should be equivalent.

How to accomplish this?  Well, absent it being dictated by a lawsuit, it starts with a commitment by USSF.  Ideally, I would like to see both the USWNT and men’s national team represented by the same union, to eliminate the risk of disparity based on different CBAs.  But the mechanics can all be worked out regardless of the representative structure, and even if the CBAs differ on some points, the principals outlined above can be followed and documented.

Part of the problem is that differences in compensation structure are being justified with reference to undocumented assumptions. Document the revenue and bonus differences, and document the club salary adjustments.  Justify the departures on both sides with numbers.  I think that pay equity demands no less in this instance.

A Final Note

It is obvious to even the most bandwagon of fans of international soccer just how much it means for these players to play for their country.  I suspect most of them would do it for free if financial circumstances allowed for it.  But USSF should not leverage that loyalty, whether consciously or unconsciously into gendered negotiation.

I don’t view the filing of this case by USWNT members as evidence of disloyalty or ingratitude.  Employees have a right to be fairly compensated, and not be discriminated against consciously or unconsciously, even if they are treated well in comparison to employees in other contexts.  I tend to be skeptical of employment discrimination claims generally, but, based on my initial (and admittedly cursory) review of this case, these players have a point.  Although USSF has done a great deal to support women’s soccer in the United States (especially in comparison to other countries) more should be done, and that can start with a stronger commitment to equal compensation.

 

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