The U.S. women’s soccer team can prove pay discrimination even though the collective bargaining agreement it signed with the sport’s governing body is different than the agreement the men’s team signed, the nation’s largest federation of unions told the Ninth Circuit in the landmark sex bias case.
A federal judge in Los Angeles dismissed the women’s players equal pay claims in May 2020, saying in part that the team’s having negotiated a separate pay scheme with the U.S. Soccer Federation that included guaranteed salaries and other fixed compensation that was absent from the men’s players’ separately bargained-for “pay-for-play” compensation structure undercut the women’s argument that they were paid less because of sex.
The judge also suggested that different pay structures in the separate collective bargaining agreements the two teams signed meant the overall economic value of the respective agreements couldn’t really be compared by a jury, the AFL-CIO said in a friend-of-the-court brief backing the women.
But it’s a “well-established labor practice” for labor negotiators and arbitrators to calculate the value of alternative pay schemes and provisions proposed during contract bargaining, the AFL-CIO said.
Such “costing out” of competing bargaining agreements or proposals “can be complex” and should typically be done by a labor economist or arbitrator, not a federal judge, the organization said.
Here, the U.S. District Court for the Central District of California prematurely discarded the expert view of an economist the women’s players offered as a witness in the case, the AFL-CIO said.
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The lower court instead adopted the “total compensation” analysis advocated by U.S. Soccer’s competing expert witness and performed an insufficient “back-of-the-envelope calculation,” the organization said.
In doing so, the court ignored evidence regarding performance bonuses that were an integral part of the way both teams are paid, bonuses that are uniformly lower for the women, the AFL-CIO said.
A jury could see sex-based pay discrimination in those differing rates of pay for performance and ought to be allowed to hear and weigh all the expert evidence, the organization said.
That view is consistent with arguments raised by the Equal Employment Opportunity Commission and others in other amicus briefs also filed July 30 in the U.S. Court of Appeals for the Ninth Circuit.
The “undisputed record evidence shows” the performance bonuses available to the women’s team under its agreement were unequal in nearly all categories, the EEOC said.
The district court “generally credited” U.S. Soccer’s evidence over the women’s, which isn’t allowed at the summary judgment stage of a case, the agency said.
Parties claiming job bias are instead supposed to have the evidence viewed favorably to them when a court is deciding whether a case should be presented to a jury, it said.
The lower court also failed to first resolve pending motions challenging aspects of the competing experts’ reports before granting partial summary judgment against the women, the EEOC said.
The AFL-CIO brief additionally pointed to other problems with the district court’s reliance on the women and men having negotiated separate agreements.
These include the apparent assumption that the women’s pay scheme can’t violate the Equal Pay Act or Title VII of the 1964 Civil Rights Act because they agreed to it, the organization said.
That there are two separate agreements also means the women didn’t get the full benefit of collective bargaining, it said.
Union negotiations are a key tool in closing the gender pay gap, but the benefits of that process are lessened when female and male employees aren’t all part of the same bargaining unit, the AFL-CIO said.
Other parties filing briefs supporting the women are the National Women’s Law Center and 64 similar organizations, the union for the men’s soccer team, former EEOC and other federal officials, and the Georgetown University Law Center-based Institute for Constitutional Advocacy and Protection.
U.S. Soccer has until Sept. 22 to file a response brief.
The organization’s general counsel’s office represents the AFL-CIO. EEOC attorneys in Washington represent the commission. Winston & Strawn LLP and Mayer Brown LLP represent the women. Latham & Watkins LLP represents U.S. Soccer.
The case is Morgan v. U.S. Soccer Fed’n, 9th Cir., No. 21-55356, amicus filings 7/30/21.
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