As originally reported by the New York Times, 28 members of the United States Women’s National Team filed a lawsuit alleging wage and gender discrimination against the United States Soccer Federation early in Friday morning in the United States District Court for the Central District of California. The lawsuit, which was filed on International Women’s Day only days after the conclusion of US Soccer’s “SheBelieves Cup,” which celebrates the accomplishments and contributions of women to society and sport, represents the most significant escalation to date of a long-running dispute between the US Soccer Federation and the World Champion US Women over pay equity and working conditions.
Filed as a class action lawsuit, the Complaint alleges that the US Soccer Federation (USSF) has violated both the Equal Pay Act and Title VII of the Civil Rights Act of 1964 of both the 28 named US Women’s National Team players and “all other similarly situated current and former WNY players who the USSF has subjected to its continuing policies and practices of gender discrimination.” While this case certainly emanates from the legal filings and procedural shadows of the wage discrimination Complaint filed with the Equal Employment Opportunity Commission in 2016; this Complaint is broader, both in its wholesale allegations of gender discrimination and in terms of the relief sought, which includes back pay, liquidated damages, attorneys’ fees and, pursuant to Title VII, punitive damages “commensurate with the USSF’s ability to pay.”
Whatever your view on the merits, there is no question that this is a unique escalation in hostilities between the USSF and its world champion, and one that barring a miraculously early settlement will almost guarantee that the US Women’s National
Team represents their country at a World Cup this summer while actively embroiled in civil rights litigation with their own federation. The last time that happened in international football was in 2014, when players from the Black Stars of Ghana quibbled with the Ghana Football Association over compensation in court before and after the tournament. That dispute was finally resolved in 2018, when a Ghana court ordered the dissolution of the Ghana Football Association for its conduct in becoming an “instrument for self-aggrandizement for people who run it to make themselves rich.”
This piece will review the legal history of the ongoing pay equity and gender discrimination dispute between the USWNT and US Soccer, discuss what this Complaint alleges in detail and outline some of the possibilities for what happens next as the parties move forward.
How did we get here?
In the aftermath of their World Cup victory in 2015 and ahead of CBA negotiations in late 2016, the US Women’s National Team filed a wage discrimination complaint against the US Soccer Federation in 2016. Citing budget figures released by US Soccer in March 2016, the Complaint alleged that while the US Women’s National Team generated similar revenue figures to the US Men’s National Team, the women were compensated in some cases by less than half the wages paid to men’s players. The Complaint alleged that wage disparity clearly represented unequal pay for equal work in violation of federal law.
Procedurally, an EEOC complaint is not a lawsuit where there is a jury or in-court winner. Instead, as I wrote at the time it was filed, the filing of an EEOC Complaint only asks that the EEOC initiate an investigation into the employer alleged to have engaged in the unlawful conduct.
So what happened with the EEOC claim? Was an investigation ever initiated?
Great question. The answer is that under federal law, even if the EEOC wanted to dismiss the wage discrimination complaint, an investigation of some nature is required. The result of such an investigation can result in a host of different remedies, among them being a “right to sue letter”, which is issued by the EEOC to the Complaint filer instructing them that the EEOC finds they have standing to sue the employer in federal court.
But why did the EEOC only issue “a right to sue letter?” Why no ruling on the merits?
Another question I’m glad you asked.
The short answer is that the issuance of a “right to sue” letter is common in these types of cases. It also means that the EEOC did not feel that the Complaint should be dismissed, despite US Soccer’s belief to the contrary. The flipside is that a notice of right to sue doesn’t mean that the EEOC decided there was a “good case”; the notice simply authorizes the allegedly aggrieved party to file suit and informs the parties that the EEOC portion of the investigation into the Complaint is over.
What was unique in this case is that typically, the EEOC process takes nine to eighteen months. Here, it took nearly two years before the five women and their counsel received a notice of right to sue in February. That’s a fairly substantial delay in the EEOC investigation and in many ways, it explains the timing of the lawsuit. As fitting as an International Women’s Day filing is, and as noticeable as this lawsuit is coming less than 100 days from the 2019 FIFA Women’s World Cup, the US women likely would have filed this Complaint sooner had they received a notice of right to sue within a quicker timetable. In fact, procedurally, they would have been required to, as the EEOC gives prospective Plaintiffs a limited amount of time to file after receipt of a “notice of right to sue.”
The right to sue left the USWNT having met the procedural requirements to file a formal gender discrimination lawsuit, but that was always possible once the EEOC Complaint had been filed.
What the Complaint alleges
As noted in the introduction, this Complaint is filed by 28 US Women’s National Team players, including four of the five women named in the original EEOC Complaint. It alleges gender and wage discrimination for the named Plaintiffs and “all similarly situated” women’s players– what is referred to legally as a class action lawsuit. Class action lawsuits must be “certified” by the Court, which typically has to find that the claims between Plaintiffs are common and can be resolved collectively in a manner that is more judicially efficient than as individualized lawsuits.
Like the EEOC Complaint, this Complaint notes the historical and unparalleled success of the USWNT on the field and forcefully argues that the USSF has profited substantially from the women’s successes. The Complaint argues that the women are engaged in “equal work” comparative to the men, and that despite this, the USSF continues a practice of paying its female employees less than similarly situated men’s players. The Complaint alleges that the USSF pays women less despite the fact that they practice longer, engage in more media sessions, play more games and perform better than their male counterparts. The Complaint further notes that recently, female games have consistently done better at the attendance gate than men’s game, enhancing the nature of the revenue argument advanced in the 2016 EEOC Complaint that the US Women, not the US Men, are the economic engine of US Soccer.
The gender discrimination complaint also notes several statements of USSF officials with particularity to illustrate the argument that even US Soccer knows it is treating women differently on the basis of gender. These statements include a statement by current US Soccer resident Carlos Cordeiro that the “women’s teams should be respected and valued as much as our men’s teams, but our female players have not been treated equally.” This quote is juxtaposed with a quote isolated later in the Complaint from a USSF official who pronounces that “market realities are such that the women do not deserve to be paid equally to the men.” Presumably, this quote functions as an implication in the pleading that the USSF willfully chooses to not treat women equally simply on account of their gender in violation of Title VII of the Civil Rights Act.
As noted, the Complaint seeks a host of remedies, including liquidated and punitive damages, back pay and a declaration from the Court that US Soccer has been willfully violating the law.
What’s changed since the 2016 EEOC Complaint
The world has changed a bit since the 2016 EEOC Complaint.
For one, as the Complaint acknowledges, the US Women’s National Team Players Association (WNTPA) entered into a new collecting bargaining agreement with the US Soccer Federation in January of 2017. The Complaint notes that in those negotiations, USSF rejected requests for equal compensation made by the women, including one based on the USSF’s “market realities” theory. Under the US Women’s proposal, player compensation would increase in the years where the USSF derived more revenue from WNT activities and would decrease in situations where the men earned more money. The Complaint notes that US Soccer “categorically rejected” this market-based approach.
What impact will the new CBA have on this litigation?
That said, US Soccer will almost certainly argue that the wage discrimination arguments advanced by the US Women are not discriminatory but instead the result of collectively-bargained for salaries. On the surface, this is a common-sense argument that could help insulate US Soccer from a finding of liability, but it should be noted that there are plenty of cases that show gender discrimination can exist even in bargaining agreements.
The new CBA will likely heavily factor into the “discovery” process as this litigation moves forward. Depositions will be need to be conducted on the nature of the revenue-sharing discussions and issues like sponsor appearances, per diem rates, and field turf arrangements aimed at alleviating gender differences between the men’s and women’s program will emerge front and center. While many of these factors may ultimately aid US Soccer in a defense of the Title VII claims, the rejection of the revenue-sharing model is plead with enough specificity in the initial Complaint to suggest it is an area where the Women’s National Team lawyers, led by the prestigious firm of Winston & Strawn and superstar sports lawyer Jeff Kessler, feel they have a strong argument.
Plenty of work will need to be done in discovery to develop that argument, but what is clear is that the winds may have shifted a bit on US Soccer’s 2016 “market realities” argument. At the heart of US Soccer’s initial defense to the EEOC wage discrimination claim was an argument that USWNT revenue numbers that outpaced the men stemmed from a post World Cup champions windfall and didn’t, at least in the main, represent a “new normal.”
Those arguments operated under economic models projecting a USMNT World Cup windfall in 2018. The men, however, famously failed to qualify and that failure has opened the economic door for the women in revenue arguments. Now, the USWNT very well may be able to utilize new revenue figures and go through discovery and argue that in fact, the USWNT revenue figures are a “new normal,” at least in the last 24 month-world where the US men missed the World Cup, which meant no World Cup revenues and drastically diminished men’s revenue at the gate. It should not be lost on anyone that just this week, a crowd of 14,009 to see the USWNT in Tampa on a chilly Tuesday night was deemed “disappointing” despite the fact it was still a crowd 50% larger than the one that showed up to see the US Men’s National Team open their 2019 on a Sunday night in Phoenix. These little distinctions will matter as the litigation moves forward.
What now?
The short answer? A long slog.
Federal civil rights lawsuits- especially federal Title VII lawsuits filed as class actions, such as this one- take years. As an example, the process of simply certifying a class in a class action lawsuit can take anywhere from three months to a year, and that process would simply frame the parameters of who is involved in the litigation to come.
The EEOC didn’t act for a while; so the USWNT now has a leverage piece for future revenue sharing agreements and negotiations, future sponsorship agreements, post World Cup tour discussions and the like. This lawsuit may also very well loom over US Soccer’s decision-making processes during what is a critical time for the NWSL as the league and USSF consider their partnership, franchise contraction, base player salaries and the other challenges facing the domestic women’s professional league. But we’re a long way from even those types of inquiries in the aftermath of the simple filing of a Complaint and given the fact this Complaint has some fact-intensive allegations, the likelihood of exhaustive discovery- and as such a tedious, methodical pace to the litigation- is high.
In other words, the lawsuit could go years without resolution.
Does that mean the US Women don’t really want to litigate?
It is certainly possible.
That said, the US Women have come this far, and they continue to be represented by longtime sports labor superstar Jeff Kessler, of “Deflate gate” fame.
With the filing coming just before the US Women defend their World Cup, the women are likely to have public goodwill on their side as well, which may be why Jeff Kessler has not backed down from his 2016 stance that this remains one of the “strongest cases for discrimination against women athletes in violation of law” that he’s ever seen.
Behind closed doors, I am skeptical that the idea here is to actually seek a judgment or damages.
Only three days ago, in Tampa, Jill Ellis said it was “terribly discouraging” that women’s World Cup compensation rates were as low as they were given the reports that FIFA revenues had soared to 6.4 billion with a staggering 2.7 billion in reserve. Given the steady and record stream of revenue and the strength of the US Women’s revenue arguments at present, the idea might be to use the Complaint as a mechanism to outflank the USSF at the bargaining table. Perhaps the end game is really just to get the federation to consider the “revenue-sharing” proposal that addressed “market realities” again.
The EEOC Complaint certainly didn’t hurt the women at the CBA bargaining table in 2016. If a tactic isn’t broke, why fix it?
That said, the women may have simply decided that enough is enough, and that they can’t get a fair shake even when they’ve carried the federation financially during the men’s program’s darkest hours since the 1980s. The numbers, after all, appear persuasive, and US Soccer will need to defend first its own accounting methodologies, win the argument that pay disparity disputes are layered and complicated and likely offer new calculations that demonstrate that there is either no wage disparity or much lower wage disparity. None of this will be easy for US Soccer, and in the short-term, they’ll be doing against a group of players who are about to be treated in the public eye as heroes defending a world championship. All told, that’s a formula that generates immense pressure on US Soccer, and one that, on the one hand, may incentivize US Soccer to make some concessions at the bargaining table. On the other hand, US Soccer may just assume focus on the World Cup and choose to litigate this case in silence, for years, in the hopes that the public, as it is prone to do, simply forgets about it. That’s a risky strategy, especially ahead of a World Cup, but well over two years after the filing of the initial EEOC Complaint, US Soccer doesn’t appear to concerned with the cost or risk.
Neil W. Blackmon is Co-Founder of The Yanks Are Coming. He also practices law and has litigated civil rights cases to verdict, including cases under Title VII. Follow him on Twitter @nwblackmon.