The Central District Court of California has granted summary judgment partially in favor of the United States Soccer Federation in the USWNT’s equal payment lawsuit. Their Equal Pay Act and Title VII claims have been denied for not establishing sufficient evidence of their claims, but other parts of their claims have been allowed to move forward.
The court sets out the standard that the USWNT’s lawyers needed to meet: they needed to show that the USWNT 1) performed substantially equal work to USMNT players 2) under similar working conditions yet 3) MNT players were paid more.
After considering the evidence from experts on the financial arguments at hand - the WNT argued that they would have been paid more had they men’s payment scheme been applied to their games, while USSF argued that the WNT’s actual earnings were more both in sum and per-game than the men - the court came to the conclusion that the WNT hadn’t presented enough evidence to show that they only earned more because they worked more than the MNT. The court said:
It is undisputed that, during the class period, the WNT played 111 total games and made $24.5 million overall, averaging $220,747 per game. By contrast, the MNT played 87 total games and made $18.5 million overall, averaging $212,639 per game.
The court gave weight to forms of compensation the WNT negotiated for like guaranteed annual salaries and severance pay, which the men do not receive, as also being “wages” for the purposes of the ruling.
For the court, the comparison of how much money each team would make under the other team’s CBA was “untenable” since the MNT and WNT both bargained for their different agreements. It also looked at the history of negotiations between the WNT and USSF in some detail, concluding that the WNT had foregone higher bonuses for things like greater base compensation and including more players under their contract scheme.
The court also did not find sufficient evidence to go forward on the turf issue, citing some of the justifications from USSF, such as the WNT playing on turf during their 2015 World Cup Victory Tour not being comparable because the men never had their own Victory Tour; playing games in fall and winter; and USSF not believing WNT games would generate enough revenue to justify installing grass over turf.
The parts of the USWNT’s case that the court has said can go on now relate to differences in charter flights provided for the MNT and WNT, as well as hotels and medical and training support services. On the flights in particular, after a detailed review, the court said that USSF hadn’t been able to fully explain the “gross disparity” in spending on travel and that it was implausible the WNT wouldn’t have benefited in several situations from charter flights.
The WNT can appeal these decisions, which would likely extend the back and forth for over a year.
For those wondering how long an appeal would take for the USWNT's pay equity claim, the 9th Circuit Court of Appeals (where this appeal would go), estimates 12-20 months from the notice of appeal date for a civil case like this one. pic.twitter.com/tzlDtJ69lt— Steven Bank (@ProfBank) May 1, 2020
Team spokesperson Molly Levinson issued a statement shortly after the case records went public:
We are shocked and disappointed with today’s decision, but we will not give up our hard work for equal pay. We are confident in our case and steadfast in our commitment to ensuring that girls and women will not be valued as lesser just because of their gender. We have learned that there are tremendous obstacles to change; we know that it takes bravery and courage and perseverance to stand up to them. We will appeal and press on. Words cannot express our gratitude to all who support us.
Similarly, Becky Sauerbrunn tweeted this:
If you know this team at all you know we have a lot of fight left in us. We knew this wasn’t going to be easy, change never is. https://t.co/BfXqAAtCZ5— Becky Sauerbrunn (@beckysauerbrunn) May 1, 2020
Where the court seemed to find pause in the end was that both the WNT and the MNT bargained for their payment schemes with US Soccer. Precedent encourages courts not to meddle too much with collective bargaining agreements in order to protect the integrity of the bargaining process and prevent parties from turning to the courts to retroactively get their way. Soccer historians will note that women have not always had the strongest bargaining position with their federations, and that there are decades of context around the things the US women have asked for to date, namely that the women have always bargained with one eye on the possibility that their entire sport will experience a setback at any time, or that they will find themselves set aside, and that they have to establish gains wherever they can find them because their careers have been, until very recently, highly unstable.
But that’s not what the court took into account, and so the WNT will have to retreat for now and re-strategize. Meanwhile, this is a great first step for Cindy Parlow Cone’s presidency, slipping out of an expensive court case that has demonized USSF in the public eye at every turn. Well, unless there’s an appeal.