Our colleague at Squire Patton Boggs’  Sports Shorts blog discussed the recent ruling in the Equal Pay Act and Title VII case brought by members of the U.S. women’s national soccer team against U.S. Soccer alleging that they were discriminated against by being paid less than their male counterparts. 

On Friday, May 1, 2020, Judge Gary Klausner of the United States District Court for the Central District of California granted partial summary judgment to U.S. Soccer in a pay equity class action lawsuit brought by members of the U.S. women’s national soccer team. In his ruling, Judge Klausner dismissed the U.S. women’s argument that U.S. Soccer systematically underpaid the women in relation to the earnings of the U.S. men’s national soccer team. This decision vitiated nearly $66 million in claimed damages on behalf of the women. Judge Klausner also dismissed a claim sounding in unsafe play as a result of training and playing on artificial turf. The women’s remaining claims include: (1) assorted personnel and support services issues (i.e. medical and training support), and (2) discriminatory working conditions based on travel accommodations (i.e. transportation via charter plane and lodging). The remaining claims will be tried in front of a jury, with a court date tentatively set for June 16, 2020. Although Klausner’s findings are a blow to the women’s soccer team, the players still have a right to appeal the decision to the United States Court of Appeals for the Ninth Circuit.

The case itself hinged on arguments that U.S. Soccer was in violation of the Equal Pay Act and Title VII of the Civil Rights Act by paying members of the men’s national team more than their female counterparts. Both the Equal Pay Act and Title VII of the Civil Rights Act make it illegal for an employer to vary its employees’ compensation based on gender, among other factors. Yet, an employer is permitted to provide differing payment schemes when factors such as a collective bargaining agreement or a seniority system are in play. To that end, it is important to note that representatives for both the women’s national team and men’s national team previously negotiated different collective bargaining agreements with their employer, U.S. Soccer. Disagreements over this two-system approach were brought into sharp perspective following the most recent FIFA Women’s World Cup, won by the U.S women (and indeed historically the U.S. women have been far more successful (four World Cups) than their male counterparts).  Nevertheless, in his order, Judge Klausner held that the women’s national team’s position was a by-product of their negotiations:

This history of negotiations between the parties demonstrates that the [women’s national team] rejected an offer to be paid under the same pay-to-play structure as the [men’s national team], and that the [women’s national team] was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, Plaintiffs cannot now retroactively deem their [collective bargaining agreement] worse than the [men’s national team collective bargaining agreement] by reference to what they would have made had they been paid under the [men’s national team]’s pay-to-play structure when they themselves rejected such a structure.

 Morgan v. United States Soccer Fed’n, Inc., No. 2:19-cv-01717-RGK-AGR, 2020 U.S. Dist. LEXIS 77708, at *39 (C.D. Cal. May 1, 2020) (emphasis in original).

Judge Klausner also rejected various arguments concerning pay discrepancy between the two national teams. In fact, he found that the women’s national team actually earned more money than the men’s national team during the class period (2015 – 2019):

It is undisputed that, during the class period, the [women’s national team] played 111 total games and made $24.5 million overall, averaging $220,747 per game. By contrast, the [men’s national team] played 87 total games and made $18.5 million overall, averaging $212,639 per game. Based on this evidence, it appears that the [women’s national team] did not make more money than the [men’s national team] solely because they played more games. Rather, the [women’s national team] both played more games and made more money than the [men’s national team] per game. Under these circumstances, it is not “absurd” to consider the total compensation received by the players.

 Id. at *36. Molly Levinson, spokesperson for the women’s national team said that she was, “shocked and disappointed with [the] decision, but we will not give up our hard work for equal pay.” Levinson went on to say that the team is, “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 will appeal and press on.” Megan Rapinoe, star of the women’s nation team, echoed Levinson’s sentiment when she tweeted, “[w]e will never stop fighting for EQUALITY.” Although trial is scheduled for June 16, it remains plausible both sides will come to a settlement agreement before the date.