If there were ever a sport where men have tended to take and hold center stage, it might be “football,” as soccer is almost universally called abroad. For decades, men dominated the sport, while women’s soccer has been slower to develop and gain appreciation. Women’s World Cup soccer did not even begin until 1970, 40 years after the men’s cup, and their games are still played somewhat in the men’s shadow, the year following the men’s championship. Men’s World Cup soccer (like most men’s sports) also continues to dominate the airwaves—the assumption by many being that the women cannot pull in the same viewership and revenue.
Among those who made that assumption was the United States Soccer Federation (USSF), which historically had always favored the men and was grudging in its acknowledgment of the excellence WNT players demonstrated on the field. Certainly, it was not willing to compensate the women commensurately with their skills or success. There was no question the women worked at least as hard as the men at the same job. No one could question their talent, drive, or results, as compared with the men’s team or anyone else. But the USSF steadfastly refused to pay them equally. The logic seemed to be that the WNT was not, and could never be, as popular, and therefore as profitable, as the men’s team. Logical, that is, until the women made it literally impossible to sustain it at all.
In 2015, the WNT won the World Cup to become the first three-time Women’s World Cup winner. That year, the USSF had expected to lose $420,000 on the tickets, merchandise, and revenue sales from the WNT matches. The women’s successes earned a $17.7 million profit instead. That result seemed to prove the reverse of the earlier theorizing. Indeed, the WNT’s World Cup final win on July 5, 2015, proved to be the most watched soccer game in American TV history up to that time.
But the USSF was not as impressed, or even open-minded, as the American public. At the bargaining table, the women sensibly wanted equal pay for their demonstrated efforts and star power, while the USSF continued to refuse. Against the evidence, the USSF repeated that the WNT was not, and could never be, as great an entertainment success as the men’s team. The exasperated women threatened to strike, but to no avail. Their threat prompted the USSF to turn to the courts to enforce a no-strike clause in an old collective bargaining agreement. It won. If the women wanted to play for the team, they could do so only at lesser pay.
The Law Was Not the Women’s Friend
In more than just this one way, the law proved less than the women’s friend. When the WNT turned next to the Equal Employment Opportunity Commission (EEOC) as an alternative legal means, the EEOC dutifully opened an investigation but gave the women no hope of immediate relief. Negotiations with the USSF, meanwhile, dragged on and on with little progress. Unable to convince their employer they were worth as much as their male counterparts, with no option to strike and with no near prospect of an EEOC intervention, the women beat a tactical retreat.
The USSF offered a payment structure similar to that of their male counterparts, but with lower compensation amounts in nearly every category—win, lose, or draw—against nearly any opponent. Frustrated, but without recourse, the WNT players inked a deal in 2017 that at least afforded some increases over their prior agreement. The good news was that the new deal included contracts with salaries, health insurance, and paid parental leave for some players, with flat fees for appearances of other players, and some performance bonuses for all players. The bad: At least in the case of the appearance fees and bonuses, especially for the World Cup appearances, where the women had excelled, those elements remained lower than those for the Men’s National Team (MNT) under their collective bargaining agreement.
The underlying justification for such unequal treatment continued to prove elusive, even as the WNT again demonstrated on the field their sports excellence, continuing their impressive winning streak. In 2018, they secured two major tournament wins, including their second straight win in the She Believes Cup and the Tournament of Nations. In 2019, the WNT was named the winner of the U.S. Olympic Committee’s Team of the Year Award for the third time in a row. They were also Sports Illustrated’s Athlete of the Year. Going into the 2019 World Cup, the WNT had been ranked first in the world for 10 of the previous 11 years. Several women players had become household names. The only thing the WNT could not do was convince the USSF of their very real mettle and overall worth.
A Ray of Hope
Then, seemingly, a ray of hope. In February 2019, the EEOC concluded its investigation and, while declining to get involved itself, issued “right to sue” letters allowing the players who had filed complaints to pursue their discrimination claims in court. At the same time, the players were preparing to go to France to seek their fourth World Cup title. Undaunted, four lead plaintiffs and proposed representatives of the class—stars of the team Alex Morgan, Becky Sauerbrunn, Carli Lloyd, and Megan Rapinoe—as well as every other team member as plaintiffs, filed a lawsuit, choosing March 8, 2019, International Women’s Day, to do so as a symbol of their struggle. The lawsuit asserted claims under the Equal Pay Act and Title VII for discrimination in pay and working conditions and sought equal pay and treatment going forward and back-pay damages amounting to $64 million. Unimpressed, the USSF dug in.
So did the women, on the field as well as in the courtroom. In the case of the former, the players finished training, traveled to France, put on a fantastic show for all the world to see, and returned as World Cup champions once again, capturing the hearts and minds of everyone who watched, and even a lot who didn’t. The crowd at the stadium where they played erupted into chants of “Equal Pay!” as the WNT sealed its 2019 victory. But the USSF deprived the players of any Hollywood ending. In the months after the World Cup win, the players and the USSF engaged in a mediation that, while highly publicized, failed to lead to any resolution.
The litigation, meanwhile, slogged on. Throughout, the USSF’s tone was condescending, suggesting that the WNT, though world champions four times over, should just be satisfied with what they were receiving, even if, overall, it wasn’t close to what the men would receive for the same level of success. Then, again, there was provisional good news. The court certified both injunctive relief and damages classes. The ruling was heartening, as it rejected the USSF’s argument that the WNT players made more than the men under their new deal, so there could not have been any discrimination.
To be sure, many of the WNT players had earned more than many of the men from 2015 to 2019. But this was unremarkable and should have been irrelevant. The WNT played 19 more games than the MNT, won twice as often, and brought home multiple World Cups. Both teams’ pay structures included bonuses for game and tournament wins, so that more games and more wins had a direct impact on the amount of compensation.
The USSF’s “total compensation” defense was based on the illogical proposition that a female employee does not suffer any injury so long as she can achieve an equal amount of total compensation by working more and performing better than her male counterparts. In what other context might it be defensible to argue that a woman who worked more hours than a male colleague for a lower hourly wage was not discriminated against because her “total compensation” was higher? Or that her greater success or productivity did not merit a higher income?
At class certification, the court underscored the point. “[The USSF’s] argument,” it said, “presupposes that there can be no discrimination . . . where a female employee’s total annual compensation exceeds that of similarly situated males, regardless of whether the female receives a lower rate of pay than her male comparators.” The court found no support for this proposition in the statute or the case law. Instead, in certifying the classes in November 2019, the court found “evidentiary proof that had [the WNT] been paid on the same terms as the MNT, they would have earned more money per game and, as a result, more money per year over the course of the limitations period.” The court went on to explain that “while WNT is a highly successful soccer team [and] ‘[i]n light of the WNT’s on-field success, Plaintiffs often spend more time practicing for and playing in matches, more time in training camps, more time traveling[,] and more time participating in media sessions . . . than similarly situated MNT players.’”
Going into summary judgment briefing a quick three months later, the WNT felt confident, having prevailed on this key argument at the class certification stage. The legal issue was pay rate, independent of total pay or pay structure. Its expert’s damages analysis showed that if the WNT players were paid under the terms of the MNT’s deal, they collectively would have made about $65 million more than their compensation under the WNT’s deal. The USSF had submitted competing expert analyses, but the evidence created at least a fact issue that would need to be resolved at trial.
Less Pay Because They Are Women
But there was a shocker in the briefing, nonetheless. In its summary judgment briefing, the USSF argued that the women could not prove their discrimination claims because the “WNT and MNT players do not perform equal work requiring equal skill, effort, and responsibility.” The USSF argued the unequal treatment was justifiable because “the overall soccer-playing ability required to compete at the senior men’s national team level is materially influenced by the level of certain physical attributes, such as speed and strength, required for the job,” and that “the job of [a Men’s National Team] player requires a higher level of skill based on speed and strength than does the job of [a Women’s National Team] player.” The USSF argued that this was “indisputable science.”
In other words, the women should be paid less because they were women, who played against women, and were not men. The public outcry against this disparagement of not just women’s sports but of women in general led several sponsors and board members to issue statements supporting the WNT and condemning the USSF. In defiance, the WNT players wore their warm-up jerseys inside out at their game to hide the USSF crest. The USSF president, Carlos Cordeiro, apologized for the filings and resigned. The USSF brought in new counsel in the middle of summary judgment briefing and trial preparation. The USSF filed papers withdrawing this argument from its briefing and parted ways with the organization’s general counsel.
While the strong public support and the USSF’s reaction were gratifying to the WNT, there is little question such arguments in writing in a public filing in U.S. federal court had an impact. The USSF, after all, is the governing body for soccer charged with growing the game, including for women and girls, many of whom had heard these comments their whole lives from people trying to diminish them. Now they had to hear them from the very body charged with promoting them. And then the big blow: On May 1, 2020, the court granted summary judgment for the USSF on the WNT’s pay discrimination claims.
This time it turned out to be the collective bargaining agreement they negotiated and accepted in 2017 and the fact that the WNT earned more per game on average than the MNT earned (despite the evidence that both teams were paid more for wins and the WNT won more often). At class certification, the court had been persuaded by the evidentiary proof that the WNT players would have earned more under the MNT collective bargaining agreement; now it deemed “untenable” a comparison between the collective bargaining agreements because, in the court’s view, they reflected “different preferences.”
The women had argued they accepted their agreement only because they had been told that they would not be paid equally. The court held otherwise, finding as a matter of law that the WNT’s collective bargaining agreement provided annual salaries for some players and, as the USSF argued, “insurance” to these women’s players in case they did not play as often or did not win. The court insisted on this conclusion even though the WNT consistently played more games and consistently won. Then, unlike at class certification, the court accepted the “total compensation” defense that it had previously rejected.
The women filed an appeal to the Ninth Circuit, arguing the same critical legal point made from the beginning: “[T]he [district] court held that pay is equal if a woman can obtain the same amount of money as a man by working more and performing better. That is not the law.” Beforehand, the WNT had achieved a class settlement of working condition claims that had not been dismissed. This led to a commitment by the USSF to provide equal treatment in travel, accommodations, field conditions, and staff support. But the appeal was all that was left of the equal pay claim.
Still, the WNT’s case began to gain momentum. The EEOC requested to participate in the players’ appeal to the Ninth Circuit and filed an amicus brief in support of the players. Other amici also supported the players, including the Men’s National Team. While the WNT was briefing the appeal, a bill was introduced in Congress, in the spring of 2021, to require equal pay between the Men’s and Women’s National Soccer Teams. President Biden invited members of the WNT to the White House on “Equal Pay Day” to join him and the First Lady in signing a proclamation denouncing the gender pay gap in the United States. The drumbeat of publicity, including the expanding spotlight on the WNT’s celebrity players, continued even as the appeal dragged on.
And then, the breakthrough. Shortly before argument was scheduled before the Ninth Circuit, the USSF finally agreed to meet the players’ two key demands for a settlement: equal pay going forward in all respects, including for the World Cup, and a fair amount of damages for past discrimination. The USSF agreed to a $22 million damages settlement for back pay and to create a $2 million fund for player pursuits. It also agreed to enter into a new collective bargaining agreement that would provide for equal pay to the women’s and men’s teams in all competitions. The six-year legal battle ended with the USSF signing new equal pay collective bargaining agreements with both the men’s and women’s players’ unions, which had been promised in the class action settlement, including equal pay for appearances and tournament victories, revenue sharing, and distribution of prize money.
In response to this happy ending, star Alex Morgan said: “It is a huge win for us, for women’s sports, for women in general, and it is a moment that we can all celebrate right now.” It was a vindication of the equal pay principle. It only slightly diminishes the outcome to note that the women needed to prove on the field the very foundations of the principle to have it be applied. It turns out that performance excellence and constant protest were more effective than the law itself in the end, not perhaps what those who established the underlying equal pay principle might have hoped for. But kudos to the WNT for proving it yet again and, hopefully, making it unnecessary before the law or in the wide world itself for women to have to do it all over again.