By David McPeak, Staff Writer
The U.S. Senior Women’s National Soccer Team (WNT) has been granted class certification in their pay discrimination suit against the United States Soccer Federation (USSF).[1] The order certifying class action status allows any potential plaintiff who was a player on or since March 8, 2016 to join the dispute on a representative, rather than individual basis.[2] The order appoints players Alex Morgan, Megan Rapinoe, Carlie Lloyd, and Becky Saurebrunn as Class Representatives.[3] The complaint filed in U.S. District Court alleges violations of both the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964.[4] The allegations against USSF relate to the rate of pay and working conditions female soccer players received compared to their male counterparts on the Men’s National Team (MNT).[5] The complaint accuses USSF of “perpetuating gender-based discrimination against plaintiffs . . . in nearly every aspect of their employment.”[6] The complaint further contends that WNT players are required to perform the same job duties that require equal skill, effort and responsibilities performed under similar working conditions as the male MNT players.”[7]
USSF argues that WNT players have not been subject to discrimination under the EPA or Title VII “[b]ecause each of them made significantly more money than the highest paid MNT player over the course of the limitations period of 2014-2019.”[8] For instance, Alex Morgan was paid $1.5 million during this period as compared to the highest-earning men’s player who was paid $993,967.[9] The WNT complaint asserts that while overall compensation during the period is higher, the basis for their gender discrimination claim is the rate of female team member pay.[10] If subject to the men’s pay agreement, WNT claims that Morgan would have made $4.1 million for the same performance [11] USSF answers that any differences in pay rates are resultant of “[d]ifferences in the aggregate revenue generated by the different teams and the terms agreed to in their respective collective bargaining agreements.”[12]
U.S. District Judge Gary Klausner disagreed with USSF’s argument that WNT players could not have suffered injury where their total pay exceeds MNT players.[13] Stating that courts have previously rejected similar arguments when interpreting the EPA and Title VII, “[t]his would mean that an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA as long as the woman negated the obvious disparity by working twice as many hours.”[4]
WNT players also allege USSF gender discrimination in working conditions such as: (1) subjecting WNT to matches on inferior surfaces more frequently than it does for the MNT; (2) provides the WNT with charter flights less frequently than it does for the MNT; (3) allocates fewer resources promoting WNT games than it does promoting MNT games; and (4) sets ticket prices to WNT games at lower price than for MNT games.[15] USSF asserted these claims are insufficient to show standing for class certification as they are too general and hypothetical.[16] Again, the court disagreed, calling the failure to provide the WNT with equal working conditions a “real” and not abstract injury.[17] The lawsuit has now moved to discovery, and a trial is scheduled to begin May 5, 2020.[18]
[1] Female Soccer Players Granted Class Certification In Equal Pay Lawsuit, 19-18 Mealey’s Litig. Rep. Class Actions 1 (2019).
[2] Order Granting Pl.’s Motion for Class Certification at 13, Nov. 8, 2019, No. 2:19-cv-01717
[3] Id. at 15.
[4] Id.
[5] Id. at 2.
[6] Pl.’s Compl. at ¶38, Mar. 8, 2019, No. 2:19-cv-01717.
[7] Id. at 39.
[8] Defs.’ Opposition to Pl.’s Motion For Class Certification at 3, Oct. 21, 2019, No. 2:19-cv-01717.
[9] Id.
[10] Pl.’s Compl. at ¶104, Mar. 8, 2019, No. 2:19-cv-01717.
[11] Sally Jenkins, Unequal Pay Will Soon Be Costly For U.S. Soccer, Wash. Post, Nov. 13, 2019 at D01.
[12] Emily Kaplan, U.S. Women’s Soccer Equal Pay Fight: What’s The Latest, and What’s Next? Nov. 14 2019 https://www.espn.com/sports/soccer/story/_/id/27175927/us-women-soccer-equal-pay-fight-latest-next.
[13] Order Granting Pl.’s Motion for Class Certification at 5, Nov. 8, 2019, No. 2:19-cv-01717.
[14] Id. at 6.
[15] Id.
[16] Defs.’ Opposition to Pl.’s Motion For Class Certification at 15, Oct. 21, 2019, No. 2:19-cv-01717.
[17] Order Granting Pl.’s Motion for Class Certification at 6, Nov. 8, 2019, No. 2:19-cv-01717.
[18] Sally Jenkins, supra.
