Unequal Pay for Better Play: The USWNT’s Fight Against Gender Discrimination

Unequal Pay for Better Play: The USWNT’s Fight Against Gender Discrimination

The popularity of women’s soccer in the United States has skyrocketed over the past few decades, particularly since the United States Women’s National Team (WNT) won the 2019 FIFA World Cup. The WNT’s success vastly overshadows the performance of the United States Men’s National Team (MNT), which has not won a single major world tournament. For example, . The MNT has not won any Olympic gold medals nor a World Cup, whereas the WNT has won four Olympic gold medals and four World Cups. The MNT also failed to qualify for the 2018 FIFA World Cup.

Despite enjoying substantially more success, the WNT players are still fighting to be paid as much as their male counterparts. In March of 2019, twenty-eight members of the WNT sued U.S. Soccer—the governing body of the sport in the U.S.—alleging gender discrimination under the Equal Pay Act and Title VII of the Civil Rights Act of 1964 (Title VII).

In their Equal Pay Act claim, the WNT members claimed that U.S. Soccer discriminated against them by paying them less than the MNT for essentially the same job. As the complaint and the subsequent ruling show, between the years 2015 and 2018, the WNT played in nineteen more games than the MNT played during the same period. In addition, the WNT brought in more profit in 2015 than the MNT. However, “a 20-game winning top tier WNT player would earn only 38% of the compensation of a similarly situated MNT player.”

The WNT members also claimed Title VII violations of wage discrimination and less favorable treatment in terms of employment in comparison to the MNT.The WNT played almost ten times more games on artificial turf than the MNT. Playing on artificial turf can cause injuries and negatively impact players’ quality of performance. U.S. Soccer installed natural grass in advance of MNT games eight times from 2014 to 2017 but only once for the WNT during that same period, despite many of the WNT and MNT games occurring at the same venue. In addition, U.S. Soccer paid $4 million more for charter flights for the MNT than the WNT, even though the WNT played far more games. The use of charter flights significantly improves player comfort and rest, and timeliness of travel.

In its answer to the WNT’s complaint, U.S. Soccer described the WNT and MNT as “physically and functionally separate organizations.” In addition to paying the WNT a larger amount in cash, U.S. Soccer claimed that the WNT bargained for benefits that the MNT did not have (like childcare and maternity leave) and that the MNT brought in more revenue. It further alleged that the two teams do not perform the same job with “equal skill, effort, and responsibility.” U.S. Soccer also stated that the differences between charter flight access and games played on turf were for reasons other than sex, including differences in the revenue brought in by each team.

In May of 2020, the U.S. District Court for the Central District of California granted summary judgment to U.S. Soccer on the WNT’s wage discrimination claim under the Equal Pay Act and Title VII and the discriminatory working conditions claim regarding field surfaces under Title VII. The court found that the WNT’s collective bargaining agreement (CBA) contained many benefits that the MNT’s CBA did not. The court did not find that (1) lower bonuses, (2) the fact that the WNT would have made more money under the MNT’s CBA, or (3) statements made by employees of U.S. Soccer regarding wage discrimination created a “genuine issue of material fact.” Further, U.S. Soccer’s “legitimately non-discriminatory reason” of cost concerns supported the disparity. The court distinguished between good management and discrimination on the basis of sex, finding it immaterial that U.S. Soccer did not have a policy of “focusing only on player health and safety.” The court denied summary judgment to either party on the discriminatory working conditions claims regarding travel conditions and support services.

Under the Federal Rules of Civil Procedure, summary judgment should be granted when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Contrary to the court’s view, various statements and admissions in U.S. Soccer’s answer do create a “genuine dispute” as to the discriminatory intent. U.S. Soccer argued that playing on the MNT requires more skill than the WNT. The organization also argued that the male players had a more demanding job with “more responsibilities” than the female players. (This language caused such a backlash that the president of U.S. Soccer stepped down in response.) The court did not analyze this statement, even though it potentially indicates the general view and culture of U.S. Soccer towards female soccer players. The plaintiffs also presented discriminatory language, notably a comment from U.S. Soccer’s attorney claiming that “women don’t deserve equal pay,” but the court dismissed them as insufficient to convince a jury of discriminatory motive. The President of U.S. Soccer admitted on multiple occasions that the WNT was not treated equally and did not receive equal pay.

The court also did not consider a number of additional points that support the WNT’s unequal pay claim. Women have historically had less bargaining power than men, and the record shows that the WNT tried extensively to bargain for higher bonuses. While the WNT did agree to a CBA that paid them less in bonuses than the MNT, this was only after extensive negotiations in which U.S. Soccer told the WNT that it would not agree to bonuses over a certain dollar amount—an amount less than that given to the MNT. Further, U.S. Soccer claimed that the difference in bonuses reflected the risks it takes in supporting each team. However, this argument is unpersuasive due to the much higher level of success the WNT—the best women’s soccer team in the world—has achieved. That the WNT agreed to a CBA after laborious negotiations does not mean that the CBA was fair and free of wage discrimination.  

The court also failed to acknowledge that the WNT players inherently have different needs than the MNT players. Throughout the opinion, the court points out many benefits that the WNT has in its CBA that the MNT does not, including maternity leave and childcare. The court does not, however, acknowledge that male and female players may need different benefits from their employer; benefits that at face value appear unequal may in actuality result in an equal level of satisfaction and comfort for employees of different genders. At the very least, the value of the benefits enjoyed by each team is uncertain and should have been left to a jury to weigh.

Furthermore, the court did not adequately analyze the WNT’s discriminatory working conditions claim regarding field conditions. Grass fields are safer and attract international opponents.Therefore, U.S. Soccer would not save money if WNT players were injured on turf fields and then unable to play and advance the team to international success. In fact, this exact scenario occurred when Megan Rapinoe, a WNT star that led the team in winning the 2019 World Cup, tore her ACL on a poorly maintained field. Additionally, the WNT has had to cancel games over field quality and injury concerns. Refusing to install grass fields may not be the prudent financial choice in the long run. This ambiguity indicates that the legitimacy of U.S. Soccer’s reason should be a question for a jury to resolve. Even if the disparate field surface choices were truly made to save money, treating parties differently for financial reasons is not always acceptable. U.S. Soccer could indeed save money by only providing turf fields, but requiring the WNT to play on turf much more frequently than the MNT forces the WNT to disproportionately bear the burden of cutting costs. Thus, U.S. Soccer clearly determines whether or not it should invest in proper fields on the basis of the sex of the soccer team. Cost-based justification is not a legitimate defense to discriminatory treatment under Title VII.

The court should not have granted summary judgment to U.S. Soccer. The factual question as to the genuine dispute must be “beyond controversy” and viewed in the light most favorable to the non-moving party. Viewing the facts here in the light most favorable to the WNT, the plaintiffs have shown genuine disputes of material fact regarding whether U.S. Soccer discriminated against the team by paying them less than the MNT and providing them with inferior fields to play on. The court failed to consider the role of gender in assessing the value of player benefits, that extensive negotiations may still result in unfair treatment, and that the cost-based justification used by U.S. Soccer is not supported by the text of Title VII nor existing caselaw. Thus, the judge erred in granting summary judgment on these issues to U.S. Soccer. The WNT has appealed this case to the Ninth Circuit.

Julia McCartney is a J.D. candidate (’22) at Northwestern University Pritzker School of Law and a Managing Editor for the Northwestern University Law Review Online. She graduated from Virginia Tech, where she received bachelors’ degrees in English and Human Development. She is a big fan of the USWNT and hopes to watch them add another star in person in 2023.

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