October 23, 2021

Volume XI, Number 296

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October 22, 2021

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October 21, 2021

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EEOC Files Amicus Brief in Support of the U.S. Women’s National Soccer Team

The Equal Employment Opportunity Commission (EEOC) has stepped into the U.S. Women’s National Soccer Team’s fight for equal pay.

In March 2019, players from the team filed a lawsuit alleging pay discrimination by the United States Soccer Federation (USSF). Their case raised issues under both the Equal Pay Act and Title VII of the Civil Rights Act of 1964. While the initial lawsuit was dismissed by a federal district court in California (as described below), the players have filed an appeal with the U.S. Court of Appeals for the Ninth Circuit. Citing its strong enforcement interest in the proper analysis of pay discrimination claims, EEOC joined the appeal by filing an amicus brief in support of the players on Friday.

The EEOC’s brief explains that the Women’s National Team (“WNT”) and the Men’s National Team (“MNT”) are governed by two separate collective bargaining agreements.  These agreements each provide for base pay plus variable pay in the form of performance bonuses, but at different rates. 

Per EEOC, between 2015 and 2019, salaried players on the women’s team earned less per game than players on the men’s team.  Further, bonuses available to the WNT were lower than those available to the MNT.  During the same time period, the WNT played 111 games, winning 92 of them.  The MNT played 87 games, winning 46 of them. 

The parties’ financial experts came to vastly different conclusions as to which team had been paid more. The women’s expert concluded that players on the WNT earned a lower rate of pay, and that each plaintiff made almost 70% less than she would have if USSF had paid her according to the same terms as the men. USSF’s expert concluded that the women were paid more, both in total and on a per-game basis. 

On motions for summary judgment brought by both parties, the Central District of California concluded that the women failed to establish a prima facie case because they did not show that the pay discrepancy was “due solely, or in material part, to the WNT working more than the MNT.”  Though the court acknowledged that the WNT received lower per-game bonuses for both friendlies and tournaments, including Word Cup-related games, it found that WNT players received other benefits, like guaranteed annual salaries and severance pay, that the MNT players did not.  It further reasoned that comparing what each team would have made under the other’s collective bargaining agreement “ignores the reality that the MNT and WNT bargained for different agreements which reflect different preferences.”  Though the women did request bonuses equivalent to those received by the MNT, they ultimately elected to have some form of guaranteed, base compensation (which the MNT did not receive) instead.

The amicus brief filed by the EEOC argues that the WNT offered sufficient evidence to support a finding that its players received a lower rate of pay to perform the same job as players on the MNT.  According to EEOC, the district court improperly disregarded opinion evidence from the women’s expert.  Further, by crediting the USSF expert’s analysis, the court failed to account for the WNT’s greater overall success as a team.

USSF’s expert added together total compensation and divided it by the number of games played.  As such, the analysis assumed all games were equal, thereby ignoring the WNT’s comparative success, including two World Cup championships. Per the EEOC, “WNT players had to be the best in the world to earn a salary comparable to MNT players.”  Moreover, “[w]here one employer pays men and women different base compensation and different bonuses to perform the same job, the compensation structure violates the EPA, regardless of the total compensation earned by each team.”

Ultimately, the EEOC argues that a jury should have been given the opportunity to consider the intangible benefits cited by USSF as available to the WNT and not available to the MNT.  A jury also should have been able to reject “as a red herring” the observation that MNT players would have been paid more under the WNT’s collective bargaining agreement than they were paid under their own.  Rather than proving USSF’s case, according to EEOC, this fact actually shows that the respective collective bargaining agreements are “a scheme that compensates MNT players at a higher rate for a lesser rate of success.”

Employers in all sectors should pay close attention to this case, as it is likely to have a significant effect on equal pay analyses going forward.

© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 221
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About this Author

Morgan McDonald Attorney Litigation Lawyer Foley Lardner LLP
Associate

Morgan McDonald is an associate working in the litigation department of Foley & Lardner LLP. Morgan is based in the firm’s Boston office where she is a member of the Business Litigation & Dispute Resolution Practice.

During the summer of 2018 Morgan was a summer associate with Foley & Lardner.

Prior to Foley, she was a judicial intern at the Essex Probate and Family Court. She also worked as a Research Assistant for a legal writing professor.

Before attending law school, she worked as a paralegal at a boutique litigation firm that...

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