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Explainer: USWNT’s economic expert says they could be owed $66M in backpay

The latest salvos in the equal pay lawsuit.

Canada v United States: Final - 2020 CONCACAF Women’s Olympic Qualifying Photo by Brad Smith/ISI Photos/Getty Images

The US women’s national team and US Soccer have both made new filings in the equal pay case, with the USWNT maintaining USSF violated the Equal Pay Act and Title VII. The women have brought in an economic expert to assess what the actual financial damages awarded should be, and USSF has asked the court to dismiss the lawsuit - not unusual in and of itself at this point.

How much money the WNT says they’re owed

The WNT brought in Finnie Cook, an economist at Deiter Consulting Group who has previously worked on assessing economic damages in litigation, including things like lost wages and benefits. Cook submitted a report estimating the backpay owed to the players under Title VII if they had been compensated under the MNT’s collective bargaining agreement. She also included things like interest on these figures and liquidated damages, which the WNT could get if the court finds a violation of the EPA. Liquidated damages are basically an amount you agree to ahead of time in a contract where there will be difficulty in pinpointing the actual money amount of those damages. They’re not supposed to be a punishment for breaching the contract; they’re just supposed to be something both parties agree on that represents what would be an appropriate amount of compensation. Punitive damages are a separate category from liquidated damages.

For a willful violation of the EPA, Cook estimated the liquidated damages would be $29.7M, while a non-willful violation would be $28M, covering a period from 2016 to 2019. She also estimated that backpay and interest owed under Title VII would be $66.7M, covering a period from 2014 through the end of 2019.

That $66.7M figure is the one the players’ lawyer cited for damages, but they could also get liquidated and punitive damages, pushing that figure much higher - perhaps even over $100M. Or they could get less, depending on how a jury feels.

USSF motion to dismiss

US Soccer is asking the court to dismiss the lawsuit. That’s pretty much standard procedure; the WNT and USSF are both just asking the court to side with them with their filings. For the WNT, if their motion for summary judgment wins, that means all that’s left to do is decide how much USSF actually owes them, with backpay and additional punitive damages. If USSF wins, well - that’s the end of it. But what is USSF’s argument for dismissing the case?

The major points are these

  • USSF has actually paid the WNT more than the MNT in the time period under consideration (2015-2019)
  • The WNT cannot make claims that they would have been paid more by using the MNT’s pay structure because they bargained for a different pay structure in their CBA
  • The MNT don’t get some of the benefits and bonuses the WNT bargained for
  • The MNT and the WNT do different work and play in different places and different games
  • The MNT generate more revenue than the WNT

USSF makes a lot of arguments under the “different work” section, claiming that “the WNT and the MNT play in fundamentally different worlds.” They point to player and coach depositions that attempt to bait the players into admitting that men are faster and stronger than women, therefore their game and the job they perform is substantially different. They argue that if the women played in the men’s game, they would lose. They point out that the men’s World Cup is watched by more people and has much more prize money, and men’s qualification takes longer, with more games: “The MNT’s participation in the FIFA World Cup has the potential to generate tens of millions more in prize money revenue for U.S. Soccer than the WNT’s participation in the FIFA Women’s World Cup.”

In terms of the different pay structures, USSF also continues to insist that they offered the players the same pay structure as the men during CBA negotiations. “U.S. Soccer countered these proposals with a ‘pay-to-play’ proposal in the same general structure as the MNT agreement.... No one can say what an eventual ‘pay-to-play’ contract may have looked like because the union refused to negotiate one....” However, a spokesperson for the players sent out a press release that this pay structure neglected to include the same bonus model.

“In the most recent CBA negotiation, USSF repeatedly said that equal pay was not an option regardless of pay structure. USSF proposed a ‘pay to play structure’ with less pay across the board. In every instance for a friendly or competitive match, the women players were offered less pay than their male counterparts. This is the very definition of gender discrimination, and of course the players rejected it. As the players included in the summary judgment brief, the USSF official who took notes of the bargaining sessions admitted under oath at his deposition that the USSF never offered the WNT equal pay in bonuses for friendlies, in compensation for the World Cup or in compensation for other tournaments.”

As for revenue, USSF pins a lot of the blame on FIFA, since they set the prize money for the World Cups, and as we know, the payouts there have massive differences, and USSF says it’s not their fault that they would agree to pay the MNT bigger World Cup bonuses because if the men had some success there, the FIFA payout would cover those bonuses. But they also point out that in the four-year cycle leading up to the WNT’s 2013 CBA, they generated less than $15M in 78 games, while the MNT generated $64M from 69 games - but they also admit that the WNT generated more revenue in the last five years than the MNT, attributing that to the WNT going through two World Cup cycles (both of which they ended up winning, contributing to bigger payouts to compare against the men) and the MNT going through one WC cycle (RIP).

WNT arguments

The WNT side of things is, of course, markedly different from USSF’s. They argue:

  • There is proof of discrimination because USSF representatives, including Carlos Cordeiro, have admitted that women are not paid equally and that they do not deserve equal pay due to “market realities”
  • The WNT receive a lower rate of pay compared to the MNT even taking into consideration fringe benefits and USSF’s own witness confirmed these differences
  • NWSL pay should not count towards the figures USSF uses since this is a separate job and not all WNT players have played for NWSL teams
  • MNT and WNT players perform equal work in terms of skill, effort, and responsibility and have the same “common core of tasks”

The WNT’s lawyers delved into the idea that the WNT and MNT perform different jobs because they play different opponents in different places, saying the actual test under the EPA is whether the employer has “centralized control of job descriptions, salary administration, and job assignments.” The players don’t have to be in the same physical place against the same opponents to be doing the same job; what matters is if USSF has centralized control over the WNT and MNT. They liken it to male and female salespersons not having to show that they travel to the same clients in the same areas to assert an EPA claim.

They also argue that USSF can’t lean too much on their revenue argument, because with Soccer United Marketing promoting both the WNT and MNT but not breaking down broadcast and sponsorship revenues between the two, there’s no way to really tell who is bringing in more money in those areas. And in the areas where they can tell who made what money, as stated above USSF admits the WNT made more in the past five years.

As for USSF saying the women bargained for the way they are paid, WNT counsel points out that according to Supreme Court case law, “collective bargaining agreements do not provide a defense to EPA (or Title VII) claims.” Or, just because an employee agrees to a compensation structure, that doesn’t mean that structure was fair; all employees who bring discrimination cases have at one point agreed to the pay they received.

Both sides now have 30 days to respond to these filings, so set a reminder on your calendar if you can’t wait for the next round of legalese. We’ll do our best to lay it out for you plainly.