Understanding USSF's response to the USWNT wage complaint

As the back-and-forth between the representatives of the US Women's National Team and US Soccer continues, USSF has filed a response to the WNT's wage disparity complaint and asked the Equal Employment Opportunity Commission to dismiss the WNT's claims.

US Soccer's case

USSF's arguments for the differences in wages for the two teams come in the following essential points, based on their filing:

1) The MNT generates more revenue

2) The WNT chose to negotiate for a different salary structure from the MNT, this guaranteed salary sometimes loses out to the paid-by-the-appearance model, and their own "pay equity clause" has already leveled their compensation

3) The WNT and the MNT's collective bargaining agreements were negotiated at different times, so sometimes one team's compensation lags behind the other

USSF has put together an argument that these compensation factors, in addition to the federation being a "strong supporter" of women's soccer, mean that they are not discriminating on the basis of gender and have not violated Title VII or the Equal Pay act.

Point by point, USSF does have valid surface explanations for how several decisions combined to create the overall wage situation for the WNT. It can often be difficult to prove employment discrimination cases without a smoking gun, like an email from Sunil Gulati stating "I want us to underpay the women," leaving courts or the EEOC to infer discriminatory patterns of behavior from an overall body of evidence.

Can US Soccer actually argue here that the sum total of the decisions they've made over the years aren't actually having a discriminatory impact on the WNT? That's where their numbers come into play, and those look pretty good for the federation, but may not tell the whole story.

The numbers game

US Soccer is pointing at the top earning women out-earning the top earning men as a conclusive sign that they treat the NTs fairly.

But if you want to talk about paying the teams, then you have to look at all the players, not just top earners. As published in the New York Times, once you move out of the top 10 highest paid players for men or women, the pay gap opens up in favor the men and eventually grows to quite significant levels. USSF wants to keep its stars happy, but cares less about the team overall. That's how you get the 50th-highest paid MNT player still making $246,238 since 2008 while the 50th-highest paid WNT player made $25,516. If you were a WNT player trying to ensure that a fair overall system of payment was in place after superstar individual names were gone, perhaps these figures might concern you.

On top of that, using this as evidence is predicated on the notion that the men's pay should be the standard, when in fact fairly compensating the female players may simply mean paying them more than what they currently earn, regardless of what the men earn. Discriminating against the WNT on the basis of gender can also take the form of paying them less than their actual worth because USSF inherently undervalues their women's program.

USSF is also claiming that the WNT's "fair pay clause" shows they already get more than their fair share of the revenue that they generate.

Leaving aside issues of how and why ticket sales have been driven over the years, these numbers look okay for USSF. Although the MNT has, overall, been compensated with more total game revenue over the years (42.4% more), the women get a bigger cut of their game revenue as negotiated in their CBA, for historical reasons that USSF acknowledges in their response.

These numbers don't exactly match up to the numbers from USSF's audited financials over the years. Assuming that each line item from their EEOC statement is from the corresponding fiscal year, here's how the latest years match up (USSF's financials list two line items, international game revenues, and NT game revenues, so I have also listed both numbers):

So USSF is perhaps slicing the data in very specific ways, which you would expect them to do in their own statement.

What else needs more context?

US Soccer touts the competitiveness and consistently high FIFA ranking of its WNT, as though these were solely the product of USSF's high-level investment. Such a statement willfully ignores the state of women's soccer until arguably the late aughts, when a minimum of investment into a program would yield enormous results, and most countries were slow to do even that.

USSF also touts its belief that the WNT is "by far the highest paid women's soccer team in the world." Once again, they neglect to look at the actual state of women's teams in international soccer - just because the WNT is paid very well by comparison to, for example, Mexico, that does not mean the WNT is actually paid fairly. It has been documented that many women's national teams are not compensated well by their federations in comparison to the men, or even at all. Just because the WNT is in a better situation than most does not mean that their situation is actually a fair one; you would hope the USWNT is in fact a call for other federations to increase their support rather than allowing USSF to maintain their status quo. The comparison to other federations is irrelevant here, in a case discussing whether USSF discriminates between its two top level national teams, and has been included to prove intent without actually going to the impact of USSF's actions.

The additional repeated refrain from USSF that men's soccer has simply been historically more popular than women's soccer without acknowledging their own part in the struggle for women's soccer to gain a foothold and fight its way to any kind of media prominence is a bit galling. To act as though USSF has always been some kind of driving force behind the advancement of women's soccer ignores that for a long time they furnished their women's team with a bare minimum of support -€” that the WNT was able to use this bare minimum to achieve dominance is a testament to both the quality of those early American players, and the relative paucity of support for their opponents.

USSF states throughout that because Soccer United Marketing does not actually break down and allocate specific values to the NTs in terms of marketing, broadcasting, or licensing rights, that it is allowed to assume that the majority of these revenues are ascribable to the MNT because men's soccer has historically been more popular than women's soccer and does have concrete figures to show that the men's World Cup is by far more popular and profitable than the Women's World Cup. Perhaps this is true - but in presenting this to the court, USSF should have done better to obtain actual figures instead of offering "it stands to reason" as a definitive argument, an argument they are making despite their own acknowledgment that the landscape for viewership of the NTs is changing due to the recent high profile successes of the WNT.

Just the facts, ma'am

Now the burden of proof shifts back to the WNT to disprove or contextualize USSF's points.

USSF's response has a strong base in terms of the financial numbers it has presented, assuming they check out, but it has got to stop touting itself as a paragon of virtue or "world leader" in comparison to other federations. How USSF compensates its WNT compared to how other federations compensate their WNTs is completely irrelevant to these proceedings and perhaps the weakest out of all the arguments USSF put forth.

What is relevant is that USSF seems to have a point-by-point defense for each decision it made with respect to its compensation of the WNT, and taken individually, you could believe that each of these decisions was made for a legitimate reason at the time. Things like bargained-for pay structures that failed to foresee a sharp rise in the popularity of the women's game in the last three or four years are not unforgivable. Perhaps the WNT will end up simply rolling these factors into their next CBA negotiation instead of taking the next step and striking. A common thread running throughout the entire statement is that the WNT, in their collective bargaining, essentially undervalued themselves. USSF suggests that the WNT can now use this overperformance in comparison to what was expected as a bargaining chip in the next round of negotiations, which they almost certainly will, assuming the parties don't settle things in an all-out street brawl first.

Taken as a whole, the cumulative effect on all WNT players - not just the top five paid players - could present a picture that shows a sufficient impact regardless of  USSF's intentions that would require them to change how they compensate the WNT.

Legally, USSF may end up winning, since they can point to revenue-based compensation as a permissible criterion in determining wages. But it would behoove the federation in further discussions to consider why men's soccer and women's soccer enjoy varying levels of popularity instead of simply accepting it as fact. USSF consistently shifts the blame to FIFA, who award much greater prize money for the Men's World Cup than the Women's World Cup, adding a textual shrug of the shoulders to say "That's just the way it is." But as they claim over and over again in their statement, they have not accepted that reasoning, so perhaps neither should the WNT.