by Soleil Ozols

In recent years there have been many instances of women coming forward to speak out against their experiences with workplace discrimination through the unequal pay between men and women; women’s soccer is no exception to this. On March 8, 2019, all 28 players of the U.S. Senior Women’s National Soccer Team sued the United States Soccer Federation (USSF) in the U.S. District Court for the Central District of California on the basis that the USSF is in direct violation of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act.[1] Even though the Plaintiffs in Solo v. United States Soccer Federation filed a federal class-action lawsuit against USSF on March 8, 2019, the issue of inequitable pay between the U.S. Women’s National Soccer Team (WNT) and the U.S. Men’s National Soccer Team (MNT) has been a constant agenda of the WNT soccer players since 2012, and even possibly before that. By looking through the evidentiary claims by the Women’s National Team, this article will evaluate the validity of the claims in regards to Title VII and the Equal Pay Act.

One rally for equal pay between the MNT and the WNT gained a lot of attention in 2016, when five WNT players filed a federal complaint with the Equal Employment Opportunity Commission claiming that USSF practiced wage discrimination.[2] Under the pretense that the USSF violated Title VII on the basis of pay, the five players deemed that they had a case worth investigating. This complaint with the EEOC was the first step taken by players to legally address the wage discrepancies they had been experiencing, since the team was legally required to file for an investigation into their case before they could sue the USSF in order to give the possibility of a mediated solution by the EEOC. The federal complaint started a movement of women’s national soccer to receive equal pay to their male counterparts, setting fire to a movement of “equal play, equal pay” posters that rippled through the sports world. Even with the issue captivating fans across the U.S., the Equal Employment Opportunity Commission gave no resolution to this issue and the USSF refused to pay the women’s team the same as the men’s team, so after the 180-day bracket for the EEOC to come up with a possible solution in their investigation, the WNT demanded a “right to sue” letter from the EEOC.[3] Within the permissible window given by the EEOC to sue the USSF, the women’s team sued the United States Soccer Federation with the hope of finally being recognized for their achievements through a pay equal to that of the MNT.

The issues that the women’s team has been facing are solely involving the USSF due to its complete control over every aspect of the women’s and men’s careers as professional soccer players. The United States Soccer Federation is the central manager of both the female and male senior national soccer teams, ruling over the soccer teams with the mission to “promote and govern soccer in the United States in order to make it the preeminent sport recognized for excellence in participation, spectator appeal, international competitions and gender equality.”[4] Despite their mission statement saying it strives for gender equality, the women’s team is taking the necessary leap towards equality by suing the USSF in Solo v. United States Soccer Federation. Although it is a substantial paycheck for the WNT, the maximum pay a woman’s soccer team member could make was $4,950 a game, while the average pay per game for a men’s soccer team member is $13,166 per game.[5] As this issue has dragged on for years, more and more statements are surfacing as to the realities of discrimination against the women. The fight for equal pay is strictly between the USSF and the women’s national team since the USSF is responsible for every aspect of the teams. Regardless of whether it is hiring coaches and trainers, selecting the location of the games, or even how much ticket prices are sold for at home games, the USSF sets the standard for their players when it comes to how the teams are treated. Since the soccer organization controls every aspect of the women’s and men’s teams, one of its most quintessential roles with the WNT is how much each women’s soccer player is paid during a season. The women’s team has dealt with dangerous or unkept fields, cuts in expenses used for the women’s travel and other shortcuts that the USSF does not take with the men’s team, but the numerical difference between the pay of the men’s and women’s team is substantial, despite the fact that both teams are ultimately responsible for the same duties as members of the professional soccer teams.

The jumping off point for the current-day fight for pay equality began in December of 2016, when the previous collective bargaining agreement expired and the women’s soccer team were able to renegotiate their contract. Despite the women’s claims that they were severely underpaid in comparison to the men’s team, USSF refused to consider raising the women’s pay to be equal to the men’s pay. According to the USSF, “market realities are such that the women do not deserve to be paid equally to men,” when in fact, market realities numerically show that the women’s team has brought in more profit than the men’s team. After the WNT’s win at the 2016 World Cup, the women generated $1.9 million more than the men. Additionally, between 2016 and 2018, women’s games generated approximately $50.8 million in revenue, while the men’s games brought in $49.9 million in revenue.[6] The wage discrepancies, in addition to all of the shortcuts that the USSF takes with the women’s team, added fuel to the fire that pushed the WNT to legally object to the treatment that they have been receiving. According to the Plaintiffs, “despite the fact that these female and male players are called upon to perform the same job and responsibilities on their teams and participate in international competitions for their single common employer, the USSF, the female players have been consistently paid less money than their male counterparts.”[7] Not only have the women’s team been paid less, but they have to prove that they deserve the amount they are currently being paid.

Essentially, the men’s team is paid for showing up, all the while the women’s earnings are directly correlated to their wins. According to Rich Nichols, the general counsel for the United States Women’s National Soccer Team Players Association, “seventy-five percent of that compensation, both last year and over those eight years, is directly related to winning championships.”[8] Multiple Plaintiffs have come forward with the fact that despite the fact that the women’s team has won world cups and placed in the Olympics, they continue to have the burden to prove that they are deserving of equal compensation to their male counterparts, who are not even as successful as the women’s team. The Plaintiffs are using the unequal treatment as their justification for suing the USSF for violations against Title VII of the Civil Rights Act and they are using the pay discrimination as evidence for the case that the USSF is violating the Equal Pay Act. The case states that the USSF has discriminated against the Plaintiffs in areas regarding pay, equal support and development for their games, as well as in playing, training and travel conditions.[9] The overall goal of Solo v. United States Soccer Federation is to “end the USSF’s discriminatory practices, and an award to make Plaintiffs and the class whole, as well as to provide for liquidated and punitive damages and all other appropriate relief”.[10]

According to the Equal Pay Act of 1963, “no employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”[11] The Equal Pay Act relates specifically to the plaintiff’s case in Solo v. United States Soccer Federation because of the empirically supported argument that the women’s team is substantially paid less than the men’s soccer team, mainly based on the fact that the USSF does not believe that the women players do not deserve equal pay to the male players. In the Equal Pay Act, there is an exception for an inequal pay in instances regarding a differentiation in workers in a seniority system, a merit system or any other differential based on any other factor other than sex.[12] However, this exception is not applicable due to the fact that the women’s and men’s national soccer teams are employed by the same employer, carry the same duties and have very similar expectations, ones that only differ based on the respective wins and losses of each team.[13] With this in mind, the USSF’s defense that says that the women’s team is not deserving of equal pay because of their different roles as players on different teams is untrue because of both teams’ equitable responsibilities and team structures.

Despite the different contracts and negotiations that the women’s and men’s teams agree to, there is an awareness among players and high-position holders that women have been repetitively paid less and the intention of the USSF was made clear when a member of the board of directors admitted that “market realities are such that the women do not deserve to be paid equally to men.”[14] Not only are the board members aware of the wage gap between men and women, but they issued a statement saying that they have no intention of closing that wage gap because they claim that the men’s and women’s teams do not have the same jobs.

However, both teams in fact do have a very similar required list of tasks that both must complete each season. For example, both teams have the responsibility of being available for games, maintaining a high level of competitive soccer skills, devoting a strong effort to promote and develop soccer as a sport, to participate in a reasonable number of media interviews, to participate in autograph sessions, along with other responsibilities as spokespeople for the USSF. If anything, the women should be paid more than the men because in the difference of their responsibilities that only exist because the WNT has been the number one team ten times in the past eleven years. In defense of its previous actions, the USSF claims that the women’s and men’s teams have “different obligations, are compensated in fundamentally different ways, and enjoy different benefits; thus, USWNT players have no male ‘counterparts’ who play for the USMNT.”[15] Before the 2015 season, the MNT brought in more income than the WNT, but the women’s team became the leader in profits for the USSF when they won the World Cup. That win for the WNT kicked off a 10-city victory tour that brought in an additional, yet unprojected, $16 million in profits for the USSF.[16] The yearly continuation of wins by the WNT project to bring in $6.6 million in profits, while men will bring in just under $2 million in profits.[17] It may have been the case a couple decades ago that the women’s team did not bring in profits as comparingly substantial as the men’s team, but as of the few previous seasons the women’s team has gone above and beyond the USSF’s expectations and henceforth deserve the pay and treatment to reflect this.

As aforementioned, the responsibilities of women and men soccer players are very similar due to the only difference in their respective soccer careers is their success (or lack thereof). During the season, both the WNT and MNT are required to be available for practices and games but the past many years have been far busier for the women’s team than the men’s, due only to the success of the WNT, year after year. For example, within the 3 years between 2015 and 2018, the WNT played nineteen more games than the MNT played over that 3-year period.[18] This success means more practices, more games, more press conferences, and more time to be devoted to their game promotion and other time-consuming tasks that the women complete each season, all the while the MNT is paid more than the WNT for having a less successful season. Since 1990, the WNT has won three FIFA women’s world cups and four gold Olympic medals. However, during this time, the MNT has not won a FIFA world cup nor an Olympic medal of any color.[19] The successes of the women’s and men’s national teams have very different track records but the higher success of the women’s team is not reflected in the pay that the women’s team receives in comparison to the men’s team.

During the 2017 fiscal year, the USSF’s expenses for the women’s and men’s national teams had an expenditure difference of $8.7 million, with the MNT ending up at $22,431,110, while the WNT’s expenses totaled at $13,711,236.[20] Under the agreed upon pay structure from 2001 to 2018, MNT players received a range of $6,250 to $17,625 per game, depending on the level of their opponent and whether they win or tie the game.[21] Until December 31, 2016, the maximum salary for the WNT was $72,000, plus bonuses for winning non-tournament games called “friendlies,” for World Cup-related appearances and victors, and for placement at the Olympics, coming to a maximum possible salary of $99,000 per year.[22] For the women, the USSF only paid the WNT players when they won games against FIFA-ranked top ten teams. Under these terms, the WNT players would not receive compensation for losing a game, tying a game or winning a game while playing a team not in the top ten. This pay scale for the WNT began in 2016 during the aforementioned collective bargaining agreement in 2016 that resulted during the time in which the WNT filed for an investigation through the Equal Employment Opportunity Commission.

Lower pay has often been discussed among the women’s team and the USSF and over the years the USSF, and even the current president of the USSF, has admitted to paying their women’s soccer team less than the men’s soccer team. While campaigning in 2017 for the presidential seat, current President Carlos Cordeiro, admitted “our women’s teams should be respected and valued as much as our men’s teams, but our female players have not been treated equally.”[23] This issue was constantly brought up by the female WNT players when agreeing upon pay structure for each team. In April of 2017, the women’s team sat down with the USSF to negotiate a new collective bargaining agreement for issues pertaining to their pay and treatment as professional soccer players. Both parties agreed to a wage increase, even though it was not equal to the men’s team wages, as well as to raise standards of travel and accommodations.[24] Any efforts by the WNT to increase their pay to somewhat resemble the amount that the MNT is paid has proved to be in vain, since the USSF rejected any motion by the WNT Players’ Association for equal pay between the Men’s National Team and the Women’s National Team.[25] Although the current President of the USSF, Carlos Cordeiro, has admitted to the fact that the women’s team has not been as valued or respected as the men’s team has, very minimal efforts have been made towards closing the wage gap. During 2012 negotiations, the USSF offered WNT players compensation only if they won games against FIFA-ranked top ten teams.[26] Willing to negotiate, the women’s team made an attempt to revise their pay during the formulation of their new collective bargaining agreement. Initially, the team requested equal compensation to their male counterparts, but were denied. In a second attempt, the team proposed a revenue-sharing model under which the pay of the female players would be dependent on the income the team brought in, with a partial motive to test the USSF’s theory that the women’s team should earn less because they brought less money in; this proposition was also rejected. The USSF’s narrative that the women’s team deserves to earn less is a direct result of the beliefs of the board of the USSF that “market realities” dictate that the women bring in less revenue than the MNT, and deserves to make less because of this, despite those “market realities” being inherently deceptive. Based on the initial numbers of income brought in by either team before 2015 (when the women’s team began to bring in millions more than the men’s team), profit margins showed that the men’s team was more profitable.

However, a partial corollary to these margins can be attributed to the fact that the USSF has created a cycle of decline for the women’s team, due to a failure by the USSF to promote the women’s team on par with the men’s team, as well as through cheaper ticket prices at the women’s matches.[27] The former President of Soccer United Marketing (the marketing company that the USSF has used for many years to promote both teams) acknowledged that the WNT has been under-marketed.[28] The lack of equal marketing of a women’s national soccer game could lead to less awareness of the match, leading to lower attendance of a game, in turn leading to lower ticket sales (which are priced lower than the men’s game tickets anyways). Due to all these different aspects of the Plaintiff’s case, the WNT has a legally viable argument that the USSF continues to break the Equal Pay Act.

According to the bylaws of the USSF, “the Federation and its members shall comply with all applicable laws governing non-discrimination and shall be open to membership without discrimination on the basis of race, color, religion, national origin, citizenship, disability, age, sex, sexual orientation, gender identity, or veteran status.”[29] The bylaws closely resemble Title VII of the Civil Rights Act of 1964, which states that, “to discriminate against any individual with respect to his compensation, terms, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” is an unlawful employment practice for an employer.[30] The Plaintiffs in Solo v. United States Soccer Federation accuse the USSF of violating Title VII because of the complaint that the USSF continues to pay its women’s players substantially less than its male players, despite the relatively equal duties and effort that both teams put in each year. In addition, the Plaintiffs accused the USSF of denying the women players equal playing, training and travel conditions, equal promotion for the women’s games, equal support and development for their games, as well as other terms and conditions of employment. If deemed viable arguments by the court of California, these two complaints by the Plaintiffs are both violations of Title VII because of the deliberate underpayment and lacking equality in facilities based on the fact that the women’s team is made up of women, and the USSF sees this as a reason to treat them differently than the men’s team.

Instances in which there are pay disparities between male and female employees of an organization does not immediately entitle the female employees to file for a direct violation of Title VII. For example, wage and quality of treatment can differentiate per employee based on factors such as that person’s position, responsibilities, or seniority. However, these differentiations do not apply to the men’s and women’s national soccer teams because of the pre-existing rankings of players based on seniority and experience that are factored in to each player’s pay. The men’s and women’s teams are the same organizations with the same structure, but with very different pay ranges and treatment from the USSF. As aforementioned, the USSF has complete control over every aspect of the women’s and men’s athletic careers, and that includes the utilities they use to practice and play games, such as whether the teams play their home matches on grass, grass overlay, or artificial surfaces (particularly, turf).[31] All three of these different field types play differently; grass fields are soft and are easy to play on; grass overlay helps a field to be more playable than turf fields; turf fields are hard, the chances of slipping are higher, they reach much higher temperatures in the summer and the ball fundamentally bounces different on hard turf floors. The substance of the field became a highly televised issue of debate around 2015, when FIFA asked women teams to play on turf during the summer’s World Cup, despite the multitude of injuries that had already occurred to many women’s soccer players because of turf. The men’s teams were rarely asked to play on turf, and when they were, a grass sod was placed down. Protests from multiple women’s teams pushed FIFA to only allow grass and grass-sod fields to be played on for the championships. But the U.S. women’s team had to bring up the topic of turf again after being scheduled (by USSF) to play four of their nine final games of 2017 on turf.[32] Regardless of their clause of higher standards of accommodations in the newly agreed upon collective bargaining agreement in 2017, the women’s teams were still being relegated to turf, despite its known dangers.

Even with the new agreement between both parties, the USSF has continued to cut corners when it comes to their women’s team. In the past few decades, women across the realm of sports have stepped forward to address the wage gap between them and their male counterparts. During the turf-debate in 2015, multiple members from multiple soccer teams playing in the FIFA Women’s World Cup stood up against FIFA to fight for grass fields. More recently, many women’s sports players have come forward to address the wage gap that they have experienced but none have gone so far as to sue the federation that employs them, making Solo v. United States Soccer Federation particularly interesting and unprecedented in the realm of sports law.

As the U.S. Women’s National Soccer Team advances in popularity and success, the argument of the USSF that the WNT is not deserving of equal pay to the men’s team is untrue and not fiscally supported, due to the heavily increasing profits that the USSF has received due to the WNT’s success. The “prayer for relief” of the Plaintiffs is to receive “all damages that the individual plaintiffs and the class has sustained as a result of the USSF’s unlawful conduct including, but not limited to, back pay, front pay, general and special damages for lost compensation and job benefits that they would have received but for the discriminatory practices of the USSF… a preliminary and permanent injunction against the USSF and its directors, officers, agents, employees, representatives, and any and all persons acting in concert with them.”[33] Due to all of the information previously mentioned, the Plaintiffs in Solo v. United States Soccer Federation have a viable case that the USSF is in direct violation of the Equal Pay Act and Title VII of the Civil Rights Act of 1964.

 

[1] Solo v. United States Soccer Federation, No. 2:19-CV-01717 (D. Cal. Filed Mar. 8, 2019).

[2] Michael McCann, Inside USWNT’s New Equal Pay Lawsuit vs. U.S. Soccer—and How CBA, EEOC Relate, SPORTS ILLUSTRATED, (Mar. 8, 2019), https://www.si.com/soccer/2019/03/08/uswnt-lawsuit-us-soccer-equal-pay-cba-eeoc-gender-discrimination.

[3] McCann, supra note 2.

[4] Solo, No. 2:19-CV-01717.

[5] Id.

[6] Mark Joseph Stern, Be Aggressive: The women’s national team has an undeniably strong sex-discrimination case against the U.S. Soccer Federation, SLATE, (Mar. 8, 2019), https://slate.com/culture/2019/03/us-womens-national-soccer-team-lawsuit-sex-based-pay-discrimination.html.

[7] Solo, No. 2:19-CV-01717.

[8] Andrew Das, Pay Disparity in U.S. Soccer? It’s Complicated, THE NEW YORK TIMES, (Apr. 21, 2016),  https://www.nytimes.com/2016/04/22/sports/soccer/usmnt-uswnt-soccer-equal-pay.html?register=email&auth=register-email.

[9] Solo, No. 2:19-CV-01717.

[10]Id.

[11] Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56.

[12] 77 Stat. 56.

[13] Solo, No. 2:19-CV-01717.

[14] Id.

[15] Rachel Bachman, U.S. Soccer Denies Discrimination in Response to Lawsuit, THE WALL STREET JOURNAL, (May 7, 2019), https://www.wsj.com/articles/u-s-soccer-denies-discrimination-in-response-to-lawsuit-11557246695.

[16] Consolidated Financial Statements and Supplemental Schedules, United States Soccer Federation, Inc., (Mar. 31, 2017), file:///C:/Users/sozol/Downloads/US%20Soccer%202018%20audited%20financials.pdf.

[17] Andrew Das, Pay Disparity in U.S. Soccer? It’s Complicated, N.Y. TIMES, (Apr. 21, 2016).

[18] Solo, No. 2:19-CV-01717.

[19] U.S. Soccer, http://www.ussoccer.com, (last visited Jun. 18, 2019).

[20] USSF supra 16.

[21] Solo, No. 2:19-CV-01717.

[22] Id.

[23] Hannah Withiam, US Women’s Soccer is Sick of Being Relegated To Artificial Turf, NEW YORK POST, (Sept. 21, 2017), https://nypost.com/2017/09/21/us-womens-soccer-is-sick-of-being-relegated-to-artificial-turf/.

[24] Solo, No. 2:19-CV-01717.

[25] Solo, No. 2:19-CV-01717.

[26] Mark Joseph Stern, Be Aggressive: The women’s national team has an undeniably strong sex-discrimination case against the U.S. Soccer Federation, SLATE, (Mar. 8, 2019), https://slate.com/culture/2019/03/us-womens-national-soccer-team-lawsuit-sex-based-pay-discrimination.html.

[27] Solo, No. 2:19-CV-01717.

[28] Bylaws of the United States Soccer Federation, INC., United States Soccer Federation, INC., (May 1, 2019), file:///C:/Users/sozol/Downloads/2019%2020%20Bylaw%20Book%2020190530.pdf.

[29] 42 U.S.C. § 2000e.

[30] Solo, No. 2:19-CV-01717.

[31] Hannah Withiam, US Women’s Soccer is Sick of Being Relegated To Artificial Turf, N.Y. POST, (Sept. 21, 2017).

[32] Solo, No. 2:19-CV-01717.

[33] Solo, No. 2:19-CV-01717.