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U.S. Women’s Soccer Team Wins Class Status in Pay Bias Suit (2)

Nov. 8, 2019, 7:39 PMUpdated: Nov. 8, 2019, 10:28 PM

The female athletes who make up the U.S. Senior Women’s National Soccer Team can pursue their claims that they were unlawfully underpaid compared with the men’s team as a class, the Central District of California said Nov. 8.

The class comprises the 25 players on the team. The lawsuit has been led by team co-captains Alex Morgan, Carli Lloyd, and Megan Rapinoe.

“We are so pleased that the Court has recognized USSF’s ongoing discrimination against women players—rejecting USSF’s tired arguments that women must work twice as hard and accept lesser working conditions to get paid the same as men,” said Molly Levinson, a spokeswoman for the players. “We are calling on Carlos Cordeiro to lead USSF and demand an end to the unlawful discrimination against women now.”

The U.S. Soccer Federation’s argument that the players had made up any pay inequities with outside income streams didn’t convince the U.S. District Court for the Central District of California. Title VII of the 1964 Civil Rights Act and the Equal Pay Act prohibit employers from discriminating on the basis of sex in terms of the rate of pay, which is what the players here allege, Judge R. Gary Klausner said for the court.

To hold otherwise would be an “absurd result,” Klausner said, because then employers could lawfully pay female employees half as much as they pay male employees, so long as the women worked twice as many hours. “Congress simply could not have intended such a result,” the court said.

“This is a really important case, partly because it’s captured the imagination of so many people, and so it’s a great opportunity to educate the public about the importance of equal pay and having a fair process,” said Pamela Coukos, a principal with consulting firm Working IDEAL who isn’t involved in the case. “Class certification is a bit of a high hurdle these days for anybody, but it’s certainly appropriate for any case where you have a policy at issue, which is the case here.”

Continued Debate on Pay Structures

A central issue in the lawsuit has been whether different pay structures in agreed-upon bargaining contracts can explain discrepancies in pay.

The collective bargaining agreement covering the men’s team pays players episodically depending on their actual participation level in and promotional efforts for the team. Players on the women’s team, on the other hand, are paid an annual salary under their CBA, which includes pay for playing in the professional National Women’s Soccer League.

“The fundamental question here is, ‘Is the work that the women’s national team is doing comparable, and are they getting the pay that they deserve in light of that?’” said Coukos, a former Obama-era Labor Department official who focused on pay bias issues. “The fact that there are other sources of income is not at all dispositive of this question.”

The court noted how men and women are paid for “friendlies,” or non-tournament matches, as one point of reference for potential pay bias. If each team played in 20 friendlies in one year, then the men would earn about $13,166 per game whereas the women would earn $9,950 per game, Klausner said.

A representative for U.S. Soccer didn’t respond to requests for comment.

Former teammate Hope Solo is separately suing the federation in the U.S. District Court for the Northern District of California.

Winston and Strawn LLP represents the women players. Seyfarth Shaw LLP represents U.S. Soccer.

The case is Morgan v. U.S. Soccer Federation, C.D. Cal., No. 19-cv-01717, minute order 11/8/19.

To contact the reporters on this story: Porter Wells in Washington at pwells@bloomberglaw.com; Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Carmen Castro-Pagan at ccastro-pagan@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com