Despite Dismissal at Court, USWNT Continues Pay Equity Claim

It was a stunning defeat for a team that has seemed at times invincible—but it was not on the soccer pitch. On Friday May 1, 2020, a federal district court judge dismissed the U.S. Women’s National Soccer Team’s (USWNT) claim of unequal pay against the United States Soccer Federation (USSF). Undaunted, the USWNT has appealed this decision to the Ninth Circuit Court of Appeals.

In their complaint filed in May 2019, the USWNT alleged that “female players have been consistently paid less money than their male counterparts” despite performing the same job responsibilities. Fast forward one year and reams of evidence later to May 2020, and the federal district court agreed with the USSF that it had paid female players unequally based on gender when compared to male players. As the New York Times reported, the court noted that U.S. Soccer had substantiated its argument that the women’s team had actually earned more ‘on both a cumulative and an average per-game basis’ than the men’s team during the years at issue in the lawsuit.”

Many may be scratching their heads as to how the court could have reached this decision. The USWNT has become a symbol of equitable treatment in sports, with their in-game prowess matched by their cogent advocacy off the field. It is helpful to look closer at the mechanics of the Equal Pay Act of 1963 (EPA), the statute upon which the USNWT based their unequal pay allegations. The EPA provides the following, which is clipped for relevancy:

“No employer … shall discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”

See 29 U.S.C. § 206(d)(1). To succeed on an equal pay claim in federal court, a plaintiff must first make an initial showing of discrimination—called a “prima facie” case. If a prima facie case of unequal treatment is established, the burden shifts to the defendant to justify the unequal treatment. Here, to make the prima facie case of wage discrimination, the EPA required USWNT players to show (1) they performed substantially equal work as the male players, (2) under similar working conditions, and (3) male players were paid more. It was this third requirement that sunk the USWNT’s unequal pay claim, according to the court.

In dismissing the USWNT’s unequal pay claim, the court looked at two metrics: 1) cumulative pay, and 2) average per-game pay. Under either metric, the USSF presented evidence that the USWNT was actually paid more than the men’s team: the [USWNT] played 111 total games and made $24.5 million overall, averaging $220,747 per game. By contrast, the [men’s team] played 87 total games and made $18.5 million overall, averaging $212,639 per game. See Morgan v. United States Soccer Federation, Inc., 2020 WL 2214082, at *12 (C.D.Cal., 2020). The court’s arrival at these numbers involved some complicated mathematics, in part because both the USWNT and the men’s team negotiated separate collective bargaining agreements. This makes a direct by-the-numbers comparison difficult. Yet, because this evidence was undisputed at this stage in litigation, the court determined that the USWNT could not make their prima facie showing of wage discrimination. For this reason, the unequal pay claim was dismissed.

What happens next? For starters, the USWNT has appealed the lower court’s decision. The EPA claim will therefore be considered by the Ninth Circuit Court of Appeals in San Francisco. Concurrently, other USWNT claims of unequal treatment, such as in the areas of travel and accommodations, medical care, and training will proceed to trial, according to the Washington Post.

For those of us who are not professional athletes, there are many lessons to glean from the USWNT’s equal pay campaign. Average pay differences between employees of different genders and/or race/ethnicities may have a legitimate explanation, despite the appearance of discrimination. A pay equity audit is an analytical tool that seeks to explain internal differences in pay across the workforce in terms of justifiable business factors. Businesses should endeavor to conduct a pay equity audit prior to a dispute with their most valued resources—their staff.