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Women Rip U.S. Soccer’s Biology Stance, Federation Cites Revenue

March 17, 2020, 4:34 PM

The U.S. Soccer Federation’s argument that any pay inequities between its men’s and women’s teams is the result of biological differences between the sexes is “a throwback to the worst stereotyped justifications for” sex discrimination, 38 women’s players told a federal court in Los Angeles.

The federation countered that the women’s pay bias claims fail because they’ve have been paid a significantly higher percentage of the revenue they’ve generated than the men have over the past five years and they’re also paid more per game.

The latest broadsides in the closely watched class equal pay case come as both sides are seeking pretrial wins on liability issues. The women are also fighting to exclude the testimony of a labor economist and other expert witnesses U.S. Soccer plans to call at trial.

Alex Morgan, Megan Rapinoe, and other players filed suit in the U.S. District Court for the Central District of California in March 2019. Goalie Hope Solo separately sued in the Northern District of California, but proceedings in her case have been stayed pending the outcome in her teammates’ suit.

The women’s Equal Pay Act and Title VII of the 1964 Civil Rights Act claims are lacking because they narrowly focus on how much they’re paid for “friendly” or noncompetitive matches compared to the men’s teams, the federation said in its March 16 filing. The Equal Pay Act requires an accounting of all compensation between alleged comparators, including bonuses and benefits, and “the undisputed record” shows the women have been paid more than the men, it said.

The differences in the team’s compensation structures are the result of union bargaining, with the women and men represented by different labor organizations, U.S. Soccer said. The women “purposely choose” a different pay scheme than the men, it said.

The significantly “greater revenue generated” by the men’s team, owing to the greater popularity of men’s soccer worldwide “to date,” also explains any inequities, the federation said. The last-place finisher at the Men’s World Cup generates more revenue than the winner of the Women’s World Cup, it said.

The federation said it’s been “a leading voice for narrowing” the pay gap, notwithstanding the women’s allegations, and it “stands ready to support” the women should they choose to pursue a different pay structure at the bargaining table in the future.

The women pushed back on those arguments. The federation’s purported reliance on the teams’ respective CBAs is a bald attempt to create an exemption to equal pay law that doesn’t exist, they said in their reply brief in support of their motion for partial summary judgment. In fact, EPA regulations expressly preclude such a defense, they said.

U.S. Soccer representatives have also admitted that the organization never had any intention of paying the two teams equally, the women said. They pointed to deposition testimony from the federation’s designated corporate representative and former U.S. Soccer President Carlos Cordeiro. The latter admitted that the women’s team members “have not been treated equally,” they said.

But the women took greatest exception to an argument the federation advanced in the last round of briefing, where it said that the general greater physical strength and speed of men relative to women meant the two teams really didn’t perform equal work, a necessary element of an equal pay claim. That argument not only fails to undercut their bias claims, it actually helps prove them, the women said.

“These expressions of naked gender discrimination are so outrageous that they led to an outcry” by sponsors, a fan-fueled push to force Cordeiro to resign, and “a public apology” by the federation, they said. The Equal Pay Act doesn’t focus on biological differences between workers but rather on whether their jobs require equal skills, they said.

No witness has disagreed with former women’s coach Jill Ellis, who testified that women’s team players are at least equally qualified to men’s players in the athleticism, “tactical IQ” and proficiency, and mental toughness it takes to excel on the world stage, the women said.

Winston & Strawn LLP represents the women players. Latham & Watkins and Seyfarth Shaw LLP represent U.S. Soccer.

The case is Morgan v. U.S. Soccer Fed’n, Inc., C.D. Cal., No. 2:19-cv-01717, reply briefs on summary judgment 3/16/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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