In his recent decision dismissing the U.S. Women’s National Team’s equal pay claim, U.S District Court Judge R. Gary Klausner spilled much ink for what was framed as a relatively straightforward case. In the end, Judge Klausner’s opinion rested on the fact that the USWNT was paid, on a cumulative and average per-game basis, more than the U.S. Men’s National Team during the same period.
USWNT Continue Fight With USSF For Level Playing Field
By Greg McKay
Rather than stating these facts briefly and summarily dismissing the Equal Pay Act claim, however, Judge Klausner went into painstaking detail regarding the negotiating history between the USWNT and the U.S. Soccer Federation.
The inclusion of this background, as well as the focus it was given in his legal analysis, suggests that the judge viewed the overall compensation package the USWNT received as the product of robust negotiations that should not be rewritten by a court under the Equal Pay Act.
The U.S. District Court opinion said as much noting, “This approach…is untenable in this case because it ignores the reality that the USMNT and USWNT bargained for different agreements which reflect different preferences, and that the USWNT explicitly rejected the terms they now seek to retroactively impose on themselves.”
Legal Issues
The USWNT’s lawyers will surely take issue with, and likely seek to appeal, certain aspects of Judge Klausner’s decision, and commentators have rightly pointed out a host of issues with the court’s framing and reasoning.
On a more fundamental level, though, the decision lays bare that one of the significant challenges facing the USWNT in negotiating with the USSF is they are bargaining under a different set of circumstances than their male counterparts based on unique structural and systemic factors that put them at a distinct disadvantage.
Throughout the nearly eleven pages of the opinion that describe the complicated negotiating history between the USWNT and the USSF, Judge Klausner highlights all the concerns that the USWNT players had focused on in conversations with the USSF.
The USWNT’s collective bargaining agreement addresses, among other things, the minimum number of players under contract, severance, insurance, NWSL support and salaries, as well as payment for USWNT games.
Men vs Women
The USMNT players, who are well-compensated and securely employed by club teams in the U.S. and abroad, focus their CBA on the pay-to-play structure that rewards them for appearances and results for the national team.
While both the USWNT and USMNT compete internationally in the same sport (though with wildly differing results), the reality is their compensation structures address a completely different set of issues so comparing them in the context of an Equal Pay Act complaint is difficult.
Though nobody could predict what the outcome would have been given a changed set of facts, one imagines that if the USWNT had more secure employment with the NWSL and robust labor protections in a CBA with that organization, they could focus more energy on structuring compensation with the USSF that rewards them in the same manner as the USMNT.
Under those circumstances, if they were not paid at the same rate as the USMNT, it’s difficult to see the case having been dismissed at the summary judgment stage.
Equal Pay Act
This suggests that the structural and systemic issues players in the women’s game face, from less investment and lower FIFA payments to less marketing attention, mean they are then at a disadvantage when negotiating with their primary employer, the USSF.
Though the Equal Pay Act may not provide relief in these circumstances, and the decision from Judge Klausner is damaging to the USWNT’s cause, there is still reason for optimism that a more equal pay agreement will be reached.
First, while the court dismissed the equal pay claim, the USWNT’s civil rights discrimination claims survived, meaning USSF still has the prospect of a costly, and very public, trial hanging over its head. In addition, public opinion is firmly on the side of USWNT players, with even former Vice President Joe Biden recently lending support to the USWNT’s cause.
These factors suggest we are headed for a negotiated settlement that will improve the pay terms of the USWNT. In moves that are reminiscent of other high profile litigations that resulted in settlement, the USSF recently replaced its outside counsel and has undergone a leadership change.
Star Power
In the twenty years Argentina fought creditors around the world over its sovereign debt defaults, for example, it ultimately took a change of the country’s president and hiring a new law firm to reset the tone for fruitful settlement discussions. An agreement with creditors was ultimately reached shortly thereafter, ending the bitter battle with vulture credit funds.
Regardless of the outcome here, fans of the USWNT will hope that in addition to more equal pay and treatment, the USSF recognizes the massive opportunity they are squandering to capitalize on the cultural moment and charismatic stars in the current team to continue to develop the women’s game in this country.
