July 13, 2020

Volume X, Number 195

July 13, 2020

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Taking the Issue of Unequal Pay onto the U.S. District Court’s Turf

As recently mentioned on Sports Shorts, the spotlight on the gender pay gap has been amplified following the fourth World Cup win by the U.S. Women’s National Soccer Team (“WNT”).  In this post, we provide a brief summary of the recent class action lawsuit filed by members of the WNT against the United States Soccer Federation (“USSF”).

With the U.S. District Court as Goalie, Will the WNT Score Equal Pay?

On Friday, March 8, 2019 (i.e., International Women’s Day), a class action lawsuit was filed in the U.S. District Court for the Central District of California against the USSF.  Plaintiffs consist of 28 female soccer players, including lead plaintiff Alex Morgan and current WNT captain Megan Rapinoe.

The Complaint states, “the USSF has a policy and practice of discriminating against members of the WNT…on the basis of gender” by: 1) paying them less; and 2) providing them with less favorable terms and conditions of employment than the similarly situated U.S. Men’s National Soccer Team (“MNT”) players.[1]

First, the WNT contends that they spend more time practicing for and playing in matches, training sessions, and traveling than similarly situated MNT players, yet are paid significantly less than the MNT players.  The pay structure argument is complex, as each team has its own collective bargaining agreement with the USSF.  Specifically, the players on the MNT are paid when they make the team and they also receive higher game bonuses.  Meanwhile, the players on the WNT receive guaranteed salaries supplemented by significantly smaller match bonuses.

The second allegation of discrimination goes beyond pay, extending into “playing, training, and travel conditions; promotion of their games; support and development for their games and other terms and conditions of their employment that are less favorable than provided to the MNT players.”[2]  For instance, among several examples, the Complaint alleges that the USSF subjected the WNT to “playing on inferior surfaces,” such as artificial turf, for 21% of their domestic matches, whereas the MNT only had to play 2% of their domestic games on artificial surfaces.[3] The WNT asserts that the “USSF has no legitimate, non-discriminatory reason for the gross disparity in the terms and conditions of employment.”[4]

“(Wo)man On!” – (Panicked Cries Possibly From the USSF Office)

Based on their allegations of discrimination, Plaintiffs bring claims under two different statutes: 1) the Fair Labor Standards Act of 1938, as amended by the Equal Pay Act, 29 U.S.C. §§ 206 et seq.; and 2) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.[5]

As to the Equal Pay Act, the WNT alleges it is “subject to [the USSF’s] common compensation policies, practices, and procedures… resulting in unequal pay based on sex by failing to compensate Plaintiffs at a level commensurate with male employees who perform substantial equal or similar work.”[6]

The Title VII claim raises issues as to whether: 1) the USSF discriminates against the WNT by subjecting them to different treatment on the basis of their gender; 2) the WNT has suffered disparate impact and/or disparate treatment discrimination as a result of the USSF’s alleged conduct; and 3) there are legitimate, non-discriminatory reasons for the alleged “gross disparity” of wages and other terms of employment.[7]

On May 6, 2019, the USSF filed an Answer to the Complaint, formally denying the allegations of gender discrimination.  At this point, the parties have tentatively agreed to participate in mediation in an effort to resolve the lawsuit.  Should mediation fail, it will be interesting to see how the lawsuit moves forward and whether the WNT will be successful in scoring this tie goal with the MNT for fair treatment and equal salaries.


Co-author: Katherine Sharpless

[1] See Complaint at ¶¶52-78.

[2] Id. at ¶67.

[3] Id. at ¶¶68-70.

[4] Id. at ¶78.

[5] See id. at ¶¶79-116.

[6] Id. at ¶86.

[7] See id. at ¶¶91-101, 110-116.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 206

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About this Author

Audrey Nicolson Intellectual Property Lawyer Squire
Attorney

Audrey Nicolson is an associate in the Intellectual Property & Technology Practice. She focuses on various intellectual property (IP)-related transaction documents, including SaaS agreements, assignment agreements and license agreements. She also focuses on trademark prosecution and brand protection.

Audrey has prior experience in patent prosecution, including claim drafting and responding to office actions. During law school, Audrey received the CALI Excellence for the Future Award for having the highest grade in the course Doing Business...

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