Update on the gender discrimination lawsuit by US women’s national soccer team

Posted in Dispute resolution, litigation and investigations Football

Last year, we wrote about the class action lawsuit commenced by the U.S. Women’s National Soccer Team (the Plaintiffs or WNT) against the U.S. Soccer Federation (USSF) alleging unequal pay and treatment. In November 2019, the Honorable R. Gary Klausner of the U.S. District Court for the Central District of California certified the Plaintiffs’ Equal Pay Act (EPA) claim as a collective action, and their Title VII claim under the Civil Rights Act (CRA) as a class action.[1] Since then, among other things, the USSF moved for summary judgment, the Plaintiffs moved for partial summary judgment (the Plaintiffs’ Motion), and each party filed a pre-trial Memorandum of Contentions of Fact and Law.

This blog post provides an update on the progress of the litigation, focusing on recent developments in the USSF’s legal arguments.

Motion for Summary Judgment

The USSF opposed the Plaintiffs’ Motion,[2] denying any violation of the EPA or Title VII of the CRA, and argued that the Court should not interfere with the collective bargaining process. Differences in pay between both teams (which are different bargaining units), the USSF argued, are a reflection of the “give and take” negotiations in such bargaining processes, as opposed to discriminatory reasons.

a) Compensation package

Regarding the EPA claim, the USSF argued that Plaintiffs failed to show a comparable male employee, or explain how such a male employee’s wage rate differs from the Plaintiffs’ wage rate. Instead, the Plaintiffs only showed that WNT players have the opportunity to receive less bonuses in various games and tournaments compared to the Men’s National Soccer Team (MNT) players. The USSF argued that bonuses only constitute one element of the WNT players’ “wage,” which ought to be reviewed on the whole.

b) WNT and MNT do not work in the same “establishment”

The USSF also argued that the Plaintiffs could not prevail on their EPA claim because they fail to prove that they work in the same establishment as the MNT. “Establishment” under the EPA ordinarily refers to a distinct physical place of business. Here, the USSF argues, each team has its own team administrator and head coach (who oversee their respective team’s operations and daily affairs), and the players never interchange between the two teams. The USSF argued that it being the organization overseeing the “bundled” budgeting, marketing, and IP of both teams is insufficient to show that it is the same establishment for both teams.

c) WNT and MNT do not perform “equal work”

The USSF also argued that the Plaintiffs failed to establish that they perform “equal work” to the MNT. In particular, it argued that the job (and requirements) of an MNT player is materially different from the job of a WNT player because it involves (i) a “higher level of skill based on speed and strength”; (ii) greater responsibility because MNT players participate in matches with higher prize awards and their games have higher television viewership; and (iii) different working conditions given that, unlike the Plaintiffs, MNT players have to play tournament qualifier games in various other countries, with a higher level of opposing fan hostility towards them than that faced by the Plaintiffs, as well as participate in larger non-World Cup tournaments.

This particular argument was the subject of heated debate and significant media attention, and soon thereafter the USSF’s then-President Carlos Cordeiro resigned.

d) The USSF’s Affirmative Defense

The USSF’s main defense asserts that the collective bargaining agreements reflect deliberate choices made by the Plaintiffs during negotiations, rather than discrimination by the USSF. It also argued that it paid higher bonuses to MNT players for winning matches because such matches paid the USSF significantly more prize money, which then covered the bonuses. Ultimately, the USSF submitted that the MNT has greater revenue generating potential, and that such differences in revenue potential contributed to the differences, as opposed to gender discrimination.

As for the CRA claim, the USSF argued that, because the Plaintiffs are not entitled to summary judgment on their EPA claim, they also are not entitled to summary judgment on their Title VII claim. The USSF also rejected the claim of intentional discrimination against the WNT, claiming (among other things) that under the current WNT collective bargaining agreement, it has paid the WNT players and their union almost 2.5 times as much as the MNT players and their union, and that the WNT has been paid more as a percentage of revenue generated by the team than the MNT.

The Court has not yet delivered its ruling on the Plaintiffs’ Motion.

Pre-Trial Submissions

In its pre-trial memorandum,[3] the USSF reiterated most of the points made in its memorandum opposing the Plaintiffs’ Motion (summarized above), and provided more details about the bargaining process to highlight that differences in compensation were informed by factors other than sex. Notably, however, the USSF did not repeat its “equal work” argument. The Plaintiffs addressed this silence in their Memorandum, writing: “USSF no longer disputes that the jobs of the WNT and MNT players require equal skill, effort, and responsibility—and therefore has necessarily conceded that they perform equal work.”[4]

This much-anticipated trial has been delayed to June 16, 2020 in light of the COVID-19 pandemic, and we will be monitoring it closely.

The author would like to thank Samantha Black, Articling Student, for her assistance in preparing this legal update.

 

 

[1] Morgan v United States Soccer Federation, Inc., No. 2:19-cv-01717-RGK-AGR2019, 2019 WL 7166978 (C.D. Cal. Nov. 8, 2019) (“Morgan").

[2] Morgan, 2019 WL 7166978 (Defendant’s Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Partial Summary Judgment). 

[3] Id. (Defendant’s Memorandum of Contentions of Fact and Law).

[4] Id. (Plaintiffs’ Memorandum of Contentions of Fact and Law Pursuant to Local Rule 16-4 at 2).

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