By: Amanda Leonard, Staff Writer
On International Women’s Day 2019, twenty-eight players of the U.S. women’s national soccer team (USWNT) filed a gender discrimination claim against the United States Soccer Federation (USSF) in the U.S. district court of California.[1] The complaint alleges violations of the Equal Pay Act (EPA) and of Title VII of the Civil Rights Act of 1964.[2] The complaint states that the USSF has demonstrated “institutionalized gender discrimination” by paying female soccer players less than their similarly situated male counterparts on the men’s national team; denying the women’s team equal playing, training, and traveling conditions; refusing to equally promote women’s games; and in failing to provide equal support and development for the women’s soccer games.[3] The complaint alleges that these actions show intentional violations of anti-discrimination laws.[4]
The EPA and Title VII both address sex-based wage discrimination and share a burden-shifting framework. Once a prima facie case of sex discrimination has been established by the plaintiff, the employer has the burden of showing that the pay difference is attributable to some legitimate, nondiscriminatory reason.[5] The four affirmative defenses available under the statutes are: (1) a seniority system; (2) a merit system; (3) a system based on quantity or quality of production; or (4) a system that uses any other factor other than sex.[6] The burden then shifts back to the plaintiff to show the proffered reasons are pretextual.[7]
The USSF is expected to assert affirmative defense numbers three or four. In fact, the complaint states that the USSF previously claimed that the “market realities are such that the women do not deserve to be paid equally to the men.”[8] The market force defense basically relates salaries to external conditions driven by consumer preferences because the market determines revenue generation, media attention/popularity, and more departmental responsibilities of athletes and their teams.[9] While the market seems to provide an external, objective measure of value, research has shown that “objective” markets can be shaped and manipulated by discriminatory decisions of individual employers and by actions reinforcing consumer discrimination.[10] In other words, research indicates that employers have a role to play in the unequal market conditions.
The USWNT can argue that the market forces argument is “pretext for lower compensation” because the women’s national team is one of the best and most marketable in the world.[11] They are more successful than the men’s national team, and they should have a greater share of revenue. The U.S. Women’s National Soccer Team won the FIFA Women’s World Cup in 1991, 1999, and 2015 (3 out of the 7 championships held since its inception).[12] Meanwhile the U.S. Men’s National Soccer Team has never won a World Cup.[13] The women’s team has also won four Olympic gold medals, is the three-time winner of the U.S. Olympic Committee’s Team of the Year Award, and was named Sports Illustrated’s “Sportsperson of the Year” in 1999.[14]
In addition to their numerous achievements, the women’s team has consistently garnered impressive television ratings. The 2015 Women’s World Cup final was the most watched soccer game in American television history with 23 million viewers.[15] In the 2016 fiscal year, the net profits for the women’s team were actually more than net profits for the men’s team.[16] However, the women were paid less during this period and actually played 19 more games than the men’s team between 2015 and 2018.[17] Furthermore, the complaint alleges that the USSF does have control over the revenue for each team by setting ticket prices, determining the number of games and their locations, and marketing the teams and their matches.[18] Despite their success and their contribution to overall revenue, the women’s team does not share equally or even proportionally in the profit. The wage of a female player is as little as 38% of what a similarly situated men’s national team player earns.[19]
The collective bargaining agreement entered into in April 2017 sets wages for the players, but does not incorporate any profit-sharing structure.[20] The USSF rejected a revenue-sharing model proposed by the Women’s National Team Players Association.[21] Even though the parties agreed to its terms, the CBA will likely not bar the gender discrimination claim because the female players will argue that the discrimination lawsuit extends beyond the language of the CBA and involves salary issues predating the CBA.[22]
The Women’s National Soccer Team after all is a national team and should reflect the American value of equality.
Sources:
[1] U.S. Women’s Soccer Team Sues U.S. Soccer for Gender Discrimination, N.P.R., Mar. 8, 2019, https://www.npr.org/2019/03/08/701522635/u-s-womens-soccer-team-sues-u-s-soccer-for-gender-discrimination.
[2] Morgan v. United States Soccer Federation, Inc., No. 2:19-CV-01717 ¶ 4 (C.D. Cal. Filed Mar. 8, 2019).
[3] Id.
[4] Id. at ¶ 107, 112.
[5] Ali Jessani, Shooting for Equality: An Analysis of the Market Force Defense as Applied to the U.S. Women’s Soccer Team’s Equal Pay Claim, 25 Duke J. Gender L. & Pol’y 221 (2018).
[6] 29 USCA § 206(d)(1) (West 2019).
[7] Jessani, supra note 5.
[8] Morgan v. United States Soccer Federation, Inc., No. 2:19-CV-01717 ¶ 2 (C.D. Cal. Filed Mar. 8, 2019).
[9] Jessani, supra note 5.
[10] Id.
[11] Morgan, No. 2:19-CV-01717 at ¶ 77.
[12] Michael McCann, Inside USWNT’s New Equal Pay Lawsuit vs. US 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.
[13] Id.
[14] Id.
[15] Id.
[16] Morgan v. United States Soccer Federation, Inc., No. 2:19-CV-01717 ¶ 42, 43 (C.D. Cal. Filed Mar. 8, 2019).
[17] Id. at ¶ 43, 50.
[18] Id. at ¶ 77.
[19] McCann, supra note 12.
[20] Id.
[21] Morgan, No. 2:19-CV-01717 at ¶ 63.
[22] McCann, supra note 12.
