The United States Soccer Federation and the members of its World Cup champion women’s national team each proposed a way out of their bitter equal pay lawsuit in court filings late Thursday night.
The federation sought to avoid a looming gender discrimination trial by asking the judge to dismiss the players’ claim. The women’s players also asked for a pretrial decision, but on far different terms: They are seeking almost $67 million — and potentially millions more — in back pay and damages.
The diametrically opposed motions, filed Thursday in federal court in California before a midnight deadline, showed just how far apart the players and U.S. Soccer remain not only in what they consider a fair outcome but also in their basic concepts of what constitutes equal pay despite years of litigation, depositions, public relations campaigns and — amid it all — two straight World Cup championships.
The judge, R. Gary Klausner of United States District Court for the Central District of California, can choose either solution, called a motion for summary judgment, and render moot a trial that he has set to begin in May. But while Klausner appeared to support some of the women’s claims about unequal pay and working conditions when he granted the players class-action status in November, both the players and U.S. Soccer expect him to allow the case to proceed to trial rather than pick a winner now on one side’s terms.
The kind of multimillion-dollar award sought by the players — a pool of dozens of athletes, including stars like Alex Morgan and Carli Lloyd but also players who have made only a handful of appearances for the national team — would be a significant blow to U.S. Soccer’s finances, potentially affecting spending not only the men’s and women’s national teams but also youth development, coaching and referee education and dozens of grass-roots soccer programs.
In their filing, and in publicly placing a dollar amount on a possible award for the first time, the women’s players presented their motion for summary judgment as a simple matter, the “rare case” where they were entitled to prevail because their claims of unequal pay and gender discrimination were laid out explicitly in contracts with the federation.
“There are no genuine issues of fact to prevent the core issues of U.S.S.F.’s liability for wage discrimination from being decided in Plaintiffs’ favor now,” the players’ lead lawyer, Jeffrey Kessler, wrote, citing as support the words of current and former U.S. Soccer officials and even a recent statement from the men’s national team players union.
Saying the federation’s actions were in clear violation of federal law, specifically the Equal Pay Act and Title VII, an expert hired by the players calculated an award of back pay and damages of $66,722,148, “with more to be sought in punitive damages at trial in May.”
The figure was reached, the players’ expert said, by taking the women’s performances, schedules and match results and calculating what they would have earned under the separate compensation schedule in place for the United States men’s national team. Calculations like those, U.S. Soccer has long argued, are inaccurate — and unfair — because they include World Cup bonuses paid by FIFA, the sport’s global governing body, for the far more lucrative men’s World Cup.
Those payments dwarf the ones paid for competing in the Women’s World Cup, but they are set by FIFA, not U.S. Soccer.
In bolstering their case, the players’ lawyers quoted comments by U.S. Soccer’s current president, Carlos Cordeiro, and his predecessor, Sunil Gulati, that they said proved the federation was guilty of gender-based decision making.
U.S. Soccer’s filing countered by quoting the star midfielder Megan Rapinoe, an outspoken advocate for the players’ cause. In the quote, she praised the federation’s long support for women’s soccer generally and for the national team specifically, and said comparing the jobs of the women with the men was “just apples and oranges.”
In its motion, U.S. Soccer argued — as it has, sometimes clumsily, in other forums — that the men’s and women’s players are separate groups who perform different work, and that any disparities in compensation are a direct result of separate collective bargaining agreements negotiated by each team.
“As a result of the collective bargaining process, the WNT players obtained many contract terms the MNT players do not enjoy in their contract,” U.S. Soccer said, listing, among other items, guaranteed club salaries, maternity and child-care benefits, and severance pay when they are no longer on the team.
U.S. Soccer also noted that the players have long prioritized — and did once again in their latest contract in 2017 — a compensation system that emphasized security, in the form of guaranteed salaries, over potentially higher rewards in the bonus-based payment structure that the men play under.
It would contravene the law, U.S. Soccer’s lawyers contended, to allow a jury to “retroactively and selectively” rewrite the plaintiffs’ collective bargaining agreement to give them the benefit of the higher reward “when they never took the higher risk.”
In fact, U.S. Soccer argued, the players on the women’s team have actually been paid millions of dollars more than their men’s counterparts by the federation in recent years: $37 million for the women, when their club salaries were included, to $21 million for the men. But that calculus, too, is misleading: The players earn their club salaries by playing dozens more games than the men do, and the calculation covers a time period in which — conveniently for the federation — the women have earned two multimillion-dollar FIFA bonuses for winning the World Cup while the men missed the 2018 World Cup, and thus received no FIFA bonus at all.
As in 2016, the women’s players, by pressing their cause, risk seeing their bid for equal pay becoming entangled with their preparations for the Summer Olympics. Earlier this month, the United States qualified for the Tokyo Games by winning a regional championship. In March and April, the team will play a series of matches against top rivals also headed to Tokyo — including England, Japan, Brazil and Australia — all while the American players, united in the equal pay fight, maneuver against one another to try to secure one of the 18 places on the Olympic roster.
Then, if Klausner takes no action on the dueling motions for summary judgment, the sides are set to meet in his courtroom on May 5.