The United States women's national soccer team's lawsuit for equal pay is ongoing off the field, even as its push for Olympic gold in Tokyo is on hold until next summer because of the coronavirus pandemic.
Since filing a gender-discrimination lawsuit against the U.S. Soccer Federation on March 8, 2019, the USWNT has gone on to win a second consecutive World Cup -- celebrated by chants of "Equal Pay!" from fans in Lyon -- and garner support from celebrities, politicians and athletes.
But U.S. Soccer won a significant ruling on Friday, May 1. More than a month ahead of a rescheduled trial date, a federal judge in California ruled against the players on a number of claims, including their contention of discrimination under the Equal Pay Act. The players filed an appeal on May 8.
What about the bigger picture? Could the team's efforts be a blueprint for other women's sports leagues? We break down everything you need to know about the lawsuit.
What is the USWNT challenging in its pay discrepancy suit?
The 28 players who are part of the suit allege that the USSF engages in "institutionalized gender discrimination" toward the team. The discrimination "has caused, contributed to, and perpetuated gender-based pay disparities" against the players in "nearly every aspect of their employment," the lawsuit reads. The lawsuit was filed in U.S. District Court for the Central District of California under the Equal Pay Act and Title VII of the Civil Rights Act.
Since then, it has been a verbal back-and-forth between the federation and legal representatives for the team.
In July 2019, USSF president Carlos Cordeiro released an open letter, citing what he described as extensive analysis of 10 years of financial data. He said the data showed that from 2010 to 2018, the women's players were paid $34.1 million in salary and game bonuses by U.S. Soccer, compared to $26.4 million given to the men during the same time period. The men's and women's teams operate with separate collective bargaining agreements and pay structures.
Representatives for the USWNT said the claim by USSF was "utterly false."
In November 2019, federal judge R. Gary Klausner of the U.S. District Court for the Central District of California granted the USWNT's motion to give its lawsuit class certification. The early win for the women meant the lawsuit could include players who appeared for the national team dating back to Feb. 4, 2015. U.S. Soccer had opposed the motion for certification.
The trial was originally slated to begin on May 5 but was pushed back to June 16 after both sides sought guidance from the court in light of the coronavirus outbreak. California Gov. Gavin Newsom has issued a stay-at-home order in his state because of the global pandemic. In their appeal, the plaintiffs filed one motion to postpone the trial from June 16, unopposed by the defense, "for a few months out" in response to the pandemic.
In February, the two sides filed very different motions in district court. Lawyers for the USWNT filed for partial summary judgment seeking back pay of at least $66.7 million in addition to punitive damages. USSF asked the court to dismiss the lawsuit "based on the actual facts in the record and the governing law."
After rhetoric from both sides ramped up during February and the first part of March, the federation reversed course on the most contentious of its arguments. Cordeiro resigned on March 12 amid backlash from fans and sponsors to language in court filings attempting to show women's players did not perform work of equal skill, effort and responsibility. Both Cordeiro and new USSF president Cindy Parlow Cone apologized for the language widely viewed as demeaning women's players and women's sports generally. USSF subsequently changed counsel and stated it would no longer pursue those particular lines of argument in its request for summary judgment.
-- Kelly Cohen
How did the USWNT and USSF get to this point?
Suffice it to say, the dispute has deep roots, legally and philosophically. And the May 1 legal setback for players isn't the end to both sides of the dispute.
Tension between members of the women's national team and the federation is nothing new. It has been a wildly successful partnership and an uneasy relationship almost from the outset. What has played out in court filings is merely the latest incarnation.
That partnership saw U.S. Soccer take on financial risk in staging the 1999 Women's World Cup on a grand scale across the United States, correctly believing the women's game and the U.S. team were up to the challenge, contrary to FIFA ambivalence. Yet this is also an uneasy relationship. Three years before that seminal tournament, a number of players protested when the federation initially offered unequal bonus structures for men and women participating in the 1996 Olympics.
As the first collective bargaining agreement negotiated by the new players' union neared its end in 2004, USWNTPA counsel John Langel sent a letter to the U.S. Olympic Committee seeking compensation for what was described in great detail as U.S. Soccer's continued lack of commitment to the women's team. Among the litany of complaints: U.S. Soccer's decision to effectively put the national team on mothballs in 2005, scheduling only a handful of friendlies and little dedicated training time.
Langel's 2004 letter was among the documents recently submitted by attorneys for the players in the current suit in support of a motion for summary judgment in their favor.
While USWNT star winger Megan Rapinoe praised the federation's backing on the eve of last year's Women's World Cup final, saying, "Compared to every other federation in the world, I don't think it's close," she remains a plaintiff in the suit against U.S. Soccer. Her praise was included in a recent filing by the federation, albeit without any emphasis on the part in which she said she would continue to nudge the federation toward the progress that still needs to be made.
How we got to the current moment is legally straightforward. After the USWNT won the 2015 World Cup -- with its reach as great as it had ever been, after packing stadiums in Canada and breaking television viewership records at home -- players and their union contended that there was no CBA in place. That would have allowed players the bargaining chip of striking in advance of the 2016 Rio Olympics, empowering them in negotiations for a new CBA. U.S. Soccer contended at the time that a four-year memorandum of understanding signed in 2013 in lieu of a new CBA bound players to the "no strike, no lockout" clause already in effect.
The federation sued the USWNTPA in February 2016, seeking a ruling on whether the existing agreement constituted a CBA. A federal court ruled in the federation's favor in June of that year. But by that time, Carli Lloyd, Alex Morgan, Rapinoe, Becky Sauerbrunn and Hope Solo had already filed a complaint with the Equal Employment Opportunity Commission alleging wage discrimination.
The two sides appeared to find temporary peace with the new CBA signed in 2017. But when the five players received a right-to-sue letter from the EEOC early in 2019, with their original complaint neither resolved nor affected by the new CBA, 28 members of the national team player pool filed suit.
And that philosophical divide?
While the intense public and sponsor backlash to U.S. Soccer legal filings in March proved to be Cordeiro's undoing after barely two years as USSF president, a stark philosophical divide between the federation and players has been on display for much longer than that.
And isn't going anywhere as the legal process now likely moves to an appeal by the players.
Even before those controversial March filings, which attempted to make the case that women's and men's national team players did not perform equal work, the federation, through its legal representation, made essentially the same point in previous filings. It wasn't a one-off.
"Plaintiffs and the MNT players do not perform equal work requiring equal skill, effort and responsibility under similar working conditions," a February motion stated, using the criteria and language set out in the Equal Pay Act under which [in part] the players brought their suit.
Players have gradually earned increasing support from a federation that, as Rapinoe said, is more invested in the women's game than any other federation in the world. Few dispute that. The present reality is a far cry from the likes of the $10 per diems of early years.
The divide is that U.S. Soccer contended long before Cordeiro took over that the past is the appropriate comparison point: Things are better for members of the women's team now than they were in the past, and the federation will continue to work with players to make things better still in the future. Full stop.
"Plaintiffs are not entitled to summary judgment on their [Equal Pay Act] claims because a reasonable juror could conclude that the job of MNT player requires materially different skill and more responsibility than Plaintiffs' job does, while also taking place under materially different working conditions," attorneys for U.S. Soccer said in the March 9 filing. "Simply put, they are materially different jobs that cannot be compared under the EPA."
The other side believes that is the root of the damage still being done.
"Hopefully, this is going to create a domino effect with not only other federations around the world in soccer but potentially other sports leagues," Rapinoe told ESPN last year. "I think women can take it into any realm where there are men and women being paid. Maybe this can be a case people cite in their own cases against employers or whatever it may be to strengthen their case. So hopefully this has a lasting effect."
U.S. Soccer publicly apologized for and legally walked back its most hard-line arguments. Indeed, it earned a fairly resounding win on the motion for summary judgment by focusing not on the idea that the women's players didn't perform equal work but that the differences in CBAs did not constitute discrimination but fair trade-offs willingly negotiated.
But the public apologies, new legal counsel and strategy, Cordeiro's resignation, Parlow Cone's ascension and conciliatory tone -- none of it is likely to lead players to believe anything but that the federation inadvertently said out loud what it has been thinking for decades.
"Settling this dispute is only the first step, but the next step is a long process," Cone said in late March. "I think a lot of damage has been done, and I think we are going to have to rebuild that trust and rebuild the relationship. And it's not going to happen overnight. It's going to take a lot of effort and time and energy from the U.S. Soccer side to rebuild that trust, not only with our U.S. women's national team players but with our fans and everyone engaged in the sport.
"I think the comments and the language in the last filing, I think not only hurt our relationship with our women's national team but hurt women and girls in general. And as a former national team player, they were personally hurtful to me. So I think we have a lot of work in that [regard] to do."
No legal decision was going to fix that overnight. Friday's decision only expands the divide. -- Hays
Where does the U.S. men's team stand on this?
Last month, the U.S. men's team issued a statement of support, saying that the USSF "has been working very hard to sell a false narrative to the public, and even to members of Congress."
Last week, Rapinoe thanked the men's team for its support and said she is "very confident of a positive outcome," even if it won't be soon. -- Cohen
There are commonly asked questions around pay structures for the men's and women's teams. Here is what we know:
Do all USWNT and USMNT players get paid upon call-up?
• In a word, no, but like most things with the equal pay dispute, it's complicated. Players on the U.S. men's and women's national teams are represented by separate unions, and thus, the structure of their respective CBAs is different. The men have been operating under the terms of an expired CBA since Jan. 1, 2019. The current deal for the women expires at the end of 2021.
• The women operate under what could best be described as a hybrid system. Seventeen players (dropping to 16 in 2021) are signed to full-time contracts with the USSF. Those signed players get paid whether or not they get called up for a game or training camp, even if they're injured. These players also receive benefits such as parental leave. The remaining women's players are called "non-contract players," and they get paid only when they are called up to the team.
• The players on the men's team operate on a pay-for-play basis. They get paid only when they are called onto the team. If they get injured with their club teams and miss a national team game, they do not get paid.
How much is the USWNT paid? And how are players paid: per game, monthly, annually?
• For the women, there are various revenue streams. Contracted players have a base pay of $100,000 per year. There are also at least 22 players who are allocated to National Women's Soccer League teams. Tier 1 players -- of which there must be at least 11 -- make an additional $67,500 per year, while the Tier 2 players make $62,500 per year. These players receive annual salary bumps of $2,500. The USSF, namely the USWNT manager, decides which players will receive Tier 1 or Tier 2 status. The women also have a variety of incentive-based bonuses written into their CBA to cover items such as win bonuses in friendlies, qualifying for the World Cup, winning the World Cup, and so on.
• Pay for non-contract USWNT players is governed by seniority. A player making her eighth or more WNT camp appearance receives $4,000 per call-up. A player called in making less than her eighth appearance receives $3,500 per call-up. These players also participate in the various win bonuses.
• The men are paid in similar fashion to non-contract USWNT players, though their appearance fees and bonuses in most cases are considerably higher. For example, making a World Cup team will net a men's player $68,750. A women's player will make $37,500 for making the World Cup squad. A win by the USMNT against a team outside the top 25 in the FIFA rankings will result in each player getting a bonus of $9,375, and a loss will result in a payment of $5,000. For the women, a victory against a team ranked outside the top eight brings each player $5,250, and they get nothing for a loss.
• How does this shake out in terms of total pay? It varies from year to year, based on each team's respective World Cup cycle. The most recent filing for 2018 saw only USWNT players among the federation's top-paid employees. But keep in mind that 2018 was a year in which the men were expected to play in the World Cup but didn't because they failed to qualify for the first time since 1986. Had the team made the tournament, the pay of several men's players would likely have far exceeded that of their female counterparts.
How is money from television deals and attendance factored in?
• Again, the respective CBAs handle these situations differently. For men's games organized by the USSF, the union gets a cut ($1.50) of every ticket sold. The total is put in a pool and distributed among the players. There is no mention in the men's CBA about television viewership.
• The women's CBA states that the union receives $1.50 per paid ticket plus 7.5% of every ticket sold above 17,000. The union will also receive a bonus if a game is sold out. The women's union receives a "viewership bonus" if the average viewership on a particular channel for USWNT games grows by at least 10% from the previous year. There is language in the CBA that says if the new men's deal exceeds these numbers, the women will automatically have the same terms applied.
-- Jeff Carlisle
What is the precedent in a case such as this?
The U.S. women's national soccer team isn't the only one to fight with its federation for equality. In September, just two months after becoming the first Caribbean nation to qualify for the World Cup, Jamaica's women's soccer team -- the Reggae Girlz -- launched a "No Pay, No Play" campaign on social media and said it would not train or compete until its federation paid the players money they were owed. The team was also frustrated about its treatment, including less-than-ideal travel itineraries.
The Reggae Girlz have been fighting for equality since 2010, when the Jamaican Football Federation cut their funding. Bob Marley's daughter Cedella led fundraising efforts when the team disbanded in 2014.
By the end of September 2019, the JFF said it finally paid the players, and the boycott did not happen. However, coach Hue Menzies stepped down in December due in part to his own pay dispute and said he was spending money out of pocket to support the team in the lead-up to the Women's World Cup.
In November 2019, Australia's women's soccer team reached a landmark, four-year deal with Football Federation Australia that ensured the Matildas would be paid as much as their male counterparts. Previously, the men earned a greater share of revenues generated by the team and were paid more. The new deal also guaranteed equitable conditions for the Matildas, including business-class travel for international tournaments (something the men already had) and the same coaching and operational support.
In the United States, the women's soccer team is often compared to its counterparts in hockey, who fought with their federation ahead of the 2017 International Ice Hockey Federation World Championships. The American women threatened to boycott the tournament, citing stalled negotiations with USA Hockey over "fair wages and equitable support."
The players and USA Hockey ended up agreeing to a landmark, four-year agreement just before the tournament, which ended the holdout and the chance that USA Hockey would put out a replacement squad for the competition. The team's annual compensation improved to roughly $70,000 per player, plus performance bonuses that could push incomes over six figures if the team wins Olympic gold or world championships. Benefits such as maternity leave -- something never previously offered to the women -- were included in the new deal. USA Hockey also agreed to other player requests, such as establishing a committee to look into how the federation could improve its marketing, scheduling, public-relations efforts and promotion of the women's game, plus fundraising and other efforts for girls' developmental teams.
As far as legal precedent, one case cited by the USSF's lawyers in their motion for summary judgment to dismiss the suit is Stanley v. University of Southern California. In 1993, Marianne Stanley was the school's head women's basketball coach, and she sued the university under the Equal Pay Act and Title VII because she was paid less than her counterpart on the men's team, George Raveling. She lost in both District Court and the 9th U.S. Circuit Court of Appeals. The arguments that the USSF is making echo the appellate court's decision, namely that Raveling was under "greater pressure" from USC to promote his team and win because the men's team generated greater attendance and "substantially more revenue" than the women's team.
Without question, the argument is, as UCLA law professor Steven A. Bank said recently, "an unqualified loser in the court of public opinion." Societal attitudes toward women's sports have evolved since that decision. Yet the case history is there, and the USSF has long been arguing that the men's team generates more revenue and better television ratings than the women's team.
According to data provided by the USSF, the men have outdrawn the women every year in attendance from 2006 to 2018. Research by ESPN indicated that changed in 2019, both for overall average (28,002 for the women versus 21,776 for the men) and for games in the U.S. (25,122 versus 23,305). In terms of television ratings, although the women outdrew the men during World Cup years of 2011 and 2015, the men had better ratings in every other year between 2008 and 2018.
The USSF didn't provide data for 2019, a year in which the American women won their fourth World Cup, but according to FIFA, the 2019 tournament was the most-watched tournament in its history, with more than one billion people tuning in across the globe. The final between the USWNT and the Netherlands was the most watched Women's World Cup match ever, with an average live audience of 82.18 million -- up by 56% on the 2015 final audience of 52.56 million. The men's national team did not qualify for the 2018 World Cup, held in Russia.
Since items such as media rights and sponsorship are bundled to include both teams, placing exact revenue numbers on each team isn't as easy as it seems, yet the USSF is determined to make that argument, even if the optics are poor.
-- Emily Kaplan and Carlisle
What are USWNT players earning in the NWSL?
The NWSL made big improvements to its salary and compensation packages ahead of the 2020 season. The minimum salary is now $20,000 (up from $16,538 in 2019), and the maximum salary is $50,000 (up from $46,200). The overall salary cap is $650,000, a 19.33% increase from $421,500 in 2019.
The NWSL removed limits on a number of guaranteed contracts and introduced salary allocation, which allows each team to purchase up to $300,000 in allocation money from the league to pay players more than the maximum salary and exceed the salary cap.
This still leaves more to be desired. Sydney Leroux made headlines last month when she told Forbes that she paid more in child care in 2019 than she made in salary from the Orlando Pride. "If you're not on the national team, you're sitting in the back seat," Leroux said. "I think we need to make it important that it touches everybody. What we're doing is only affecting certain people, and I think that that's not good enough because we're losing out on really good athletes because you can't survive on an NWSL salary. People have different jobs. People's parents are helping them, and that's not OK. This isn't a hobby. This is our livelihood."
Consider that Leroux's husband, Dom Dwyer, earned $1.32 million in base salary from Orlando City SC last year. In 2019, base salaries in MLS ranged from $56,244.60 to $7.2 million for the highest-paid player (Zlatan Ibrahimovic).
What happens now?
The summary judgment dismissed most of the lawsuit's claims, notably those related to equal pay, before even reaching a jury trial in June. That is as significant a blow for the plaintiffs as it appeared at first glance.
Tom Spiggle, founder of the Spiggle Law Firm that deals with employment law, told ESPN that while it isn't unusual for federal judges to grant summary judgment in cases such as this, doing so nevertheless necessitates meeting a high bar.
"To grant summary judgment and essentially kick them out of court," Spiggle said, "it's the judge making the determination that no reasonable juror could look at this evidence and find in favor of the plaintiff."
Foudy: It's time for the USWNT to sit down with U.S. Soccer
Julie Foudy says the USWNT should "get to the table" with U.S. Soccer rather than go through a lengthy appeal.
But that doesn't mean the end of the lawsuit. The players filed two motions in federal district court in California on Friday, May 8. One seeks to postpone the trial from its June 16 start date in district court "for a few months out" due to the coronavirus pandemic. The other seeks to be able to immediately appeal Judge Klausner's ruling to the U.S. Court of Appeals for the Ninth Circuit over whether Klausner appropriately employed Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment.
"In order to look at that and decide whether or not the judge correctly applied that rule, you've got to look at the substance," Spiggle said. "[The 9th circuit will] look at this evidence the same way that the court did and decide whether or not the court overplayed its hand and prematurely took this out of the hands of the jury."
Two areas of interest are total compensation figures and the history of the collective bargaining agreements that the women's players negotiated separately from their male counterparts.
"The argument that women gave up a right to equal pay by accepting the best collective bargaining agreement possible in response to the federation's refusal to put equal pay on the table is not legit reason for continuing to discriminate against them," said Molly Levinson, spokesperson for the players.
The most extensive section of the 32-page ruling was an almost blow-by-blow history of the CBA negotiations between U.S. Soccer and the USWNTPA over the past decade. It made clear the court's belief that the women's players knowingly and willingly sacrificed potential earning power in their CBA negotiations in exchange for the security of compensation like guaranteed annual salaries from the federation.
"Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to-play structure when they themselves rejected such a structure," Klausner's ruling stated.
But the women's union also negotiated its CBA within the context of a society with a history of gender inequality. Decades in which women either weren't allowed, or encouraged, to play sports contributed to a present-day reality in which women's professional sports are still trying to catch up. Men's national players didn't need to bargain for the security of something like guaranteed salaries from the federation because they were well paid by clubs in a long-established professional marketplace.
In an appeal, historical discrimination might not be purely a philosophical argument.
"Some courts of appeal have said, no defendants, you can't say that," Spiggle said of precedents in which defendants argued women negotiated lesser terms. "You cannot say that the company was relying on the woman's salary history because that salary history was itself part of an unequal system. The whole playing field in which this agreement was negotiated was unequal. So defendants, you can't rely on that unequal playing field to justify your unequal results. That argument can be made here, which they tried to make here at the lower court. ... I think it is a legitimate legal issue to raise.
"The practical reality," Spiggle said, "is that the case is highly likely to settle, one way or the other, once the Ninth Circuit rules on the grant of summary judgment on the EPA claims."
Klausner's ruling also made prominent note of the compensation figures for the women's and men's players and the defense contention that, even excluding pay for the National Women's Soccer League, women's players earned more than men's players in total and on a per-game basis during the period in question. The ruling cited as undisputed fact that from 2015 to 2019, the women's national team averaged $220,747 per game in total payments (for a total of $24.5 million), while the men's national team averaged $212,639 per game in total payments (for a total of $18.5 million).
Among the questions left unanswered was how the ruling would have been affected if the men's team had been more successful, thereby triggering large World Cup bonuses that presumably would have lifted their compensation above that of the women's players.
On that and other issues, Klausner's ruling largely agreed with the numbers as interpreted by the defense.
"If a court wants to redo this, if the court of appeals wants to undo this, I think that's how they do it. They dig into these numbers in a different way. They say, 'The court just got this wrong in how it sliced and diced these numbers,'" Spiggle said.
"The Ninth Circuit, of all of them, tends to be more plaintiff friendly. So it's not that I don't think that the women's soccer team doesn't have a chance here, but I think it's an uphill battle. I think this court did a pretty good job of really giving it some thought, laying it out in the opinion.
"If I were a betting man, I would say that they're not going to be successful getting this overturned on appeal."
That was also the assessment of John Wolohan, a professor of sports law at Syracuse.
"The truth is the law is against them, and it looks like they have little chance of success. The one area of hope -- and the area most interesting in the decision -- is that the court concluded that the WNT is paid more than the men," Wolohan said. "Therefore, if they can convince the Ninth Circuit that this conclusion was wrong, their Equal Pay Act claim could continue forward."
Before getting to an appeal on the equal pay claims, the two Title VII claims need to be resolved. Those deal with the travel and accommodations provided to the women's and men's teams by the federation and the staffing for the respective teams.
Spiggle guessed that the federation would be eager to reach a settlement rather than face the publicity of a short trial on two specific Title VII claims. If it does proceed to trial, it is likely the plaintiffs will argue in motions to include some of the evidence they used in support of the equal pay claims.
And while the Title VII claims are not as significant as the equal pay act claims, they would allow the plaintiffs to pursue emotional distress damages that could further put the federation in a bad public light.
"You cannot get emotional distress damages under an Equal Pay Act violation," Spiggle said. "It's only about the back pay. For a Title VII violation, you can argue for emotional distress damages. Do I think it's a big factor here? No, it's not like these women probably experienced a ton of emotional distress. But it is nevertheless an element of damages they can offer at trial.
"They can put on evidence about that. How did this make the women feel? How did this impact their stress level?"
So the legal proceedings are not finished despite a nearly comprehensive victory for the federation in the summary judgment ruling. And as the public backlash to earlier filings that led to Cordeiro's resignation showed, all of this is also playing out in the court of public opinion.
"There can be a bigger objective in which the legal proceedings are only one tactic within a larger battle," Spiggle said. "Even though the big claims have been knocked out, the fact that this is ongoing is a victory for the women's team because it's going to stay in the public eye for as long as it continues and until there is a trial. And it could put them in a better bargaining position later down the line in other collective bargaining agreements."