The US women’s national team has taken the next step in their equal pay lawsuit against US Soccer as a district court in California has certified them as a class.
What does that mean? Basically that they’re all allowed to sue US Soccer together, instead of having to individually bring suits from each player, and that any relief granted to all of them would be appropriate for each member of the group. Even more basically, they all have pretty much the same problem that needs one solution. The court found it would be most efficient to allow them to join together as they’re seeking the same relief and raising the same legal issues.
USSF made three arguments against the suit’s representatives being able to adequately represent everyone in the class, i.e. all the players who were members of the WNT from February 4, 2015 through the date of class certification (in this case, November 8, 2019). First, that the players didn’t actually get paid less; second, that some players might actually want the current WNT compensation model instead of the MNT model; and third, that the senior players might prioritize relief that is better for them than junior players. The court dismissed the second and third arguments as too speculative.
On the first reason, the court sided with the WNT, agreeing that they “were in fact paid less on a per game basis than the MNT” and that had they been paid on the same terms as the men, they would have earned more money per year. Under the standards required for class certification, the WNT also “established a likelihood that they will again be wronged in a similar way,” or that USSF will continue to pay them less than the MNT.
The court disagreed with USSF’s assertion that the players didn’t show they suffered an injury (lower pay) just because some of them made more money than the highest paid MNT player. The court dismissed this claim outright, first saying that USSF never cited any case law to support that women making more money total means no discrimination exists when a woman’s rate of pay is less than her male counterpart’s rate. They then pointed to an example of someone paying a woman $10/hour and a man $20/hour, then claiming no discrimination exists as long as the woman works twice as many hours as the man. So the argument can’t be based on total compensation; instead, the court is looking at the rate of compensation.
The court also said the players have, for the purposes of certification, provided sufficient proof of unequal working conditions such as playing on inferior surfaces more than the men, getting fewer charter flights, getting fewer resources to promote WNT games, and lower WNT ticket prices.
So how do the players want to settle the score? In the statement, they claimed that the MNT and WNT collective bargaining agreements provide a framework for an expert to assess what the damages actually are, and the court agreed, provided significant disputes about how that assessment applies to individual players doesn’t come up. As you’ll remember, the point of class certification is that everyone in the class has suffered a similar injury that requires a similar solution.
US Soccer will have two weeks from now to provide a list of the players who fall into the class to the WNT.
In a press release, Molly Levinson, a spokesperson for the players, called this an “historic step forward in the struggle to achieve equal pay.”
From an outside perspective, it seemed fairly likely the USWNT would get their class certification. But now that they have it, along with a court agreeing that there was sufficient proof of unequal working conditions for this certification, things may feel more stark for USSF. Perhaps this will be additional incentive to try and settle. Perhaps USSF will try to go to the mat with the WNT. We’re keeping track of it all here.