USWNT Lawsuit: What We Know and What It Means Going Forward

March 9, 2019
Graham Hays
espnW.com

With a little more than three months until the U.S. plays its opening game in the FIFA Women’s World Cup, 28 members of the current U.S. women’s national team player pool joined in a federal lawsuit filed Friday against U.S. Soccer alleging gender discrimination.

Here is what we know and don’t know so far.

The lawsuit
Of the current USWNT player pool, 28 team members were named as plaintiffs in the case filed in United States District Court in Los Angeles, and they are seeking class-action status over “institutionalized gender discrimination” toward the team. The lawsuit was filed under the Equal Pay Act and Title VII of the Civil Rights Act.

The plaintiffs are seeking equitable pay and treatment, in addition to damages including back pay. Among complaints about wages, the lawsuit also notes issues with where and how often the women’s team played, medical treatment and coaching. The class-action request would allow any players for the team since February 2015 to join the case.

A look at a few of the total 41 complaints included in the 25-page filing:

•    The lawsuit claims that from March 2013 through Dec. 31, 2016, when the previous collective bargaining agreement expired, players on the women’s team could make a maximum salary of $72,000, plus bonuses for winning non-tournament games as well as World Cup appearances and victories, and for Olympic placement.
•    A comparison of the WNT and MNT pay shows that if each team played 20 friendlies in a year and each team won all 20 friendlies, female WNT players would earn a maximum of $99,000 or $4,950 per game, while similarly situated male MNT players would earn an average of $263,320 or $13,166 per game against the various levels of competition they would face. The lawsuit further cites the women’s three World Cup titles, four Olympic gold medals and the 2015 World Cup title game being the most-watched soccer match in American television history. The USWNT has also been ranked No. 1 in the world for 10 of the past 11 years.
•    The lawsuit also references the “revenue-sharing model” the U.S. Women’s National Team Players Association (USWNTPA) pitched as part of a new collective bargaining agreement, which took effect on Jan. 1, 2017, and runs through 2021. At the time, the pitch was meant to challenge U.S. Soccer’s assessment that “market realities do not justify equal pay.” Friday’s filing states: “Under this model, player compensation would increase in years in which the USSF derived more revenue from WNT activities and player compensation would be less if revenue from those activities decreased. This showed the players’ willingness to share in the risk and reward of the economic success of the WNT.”

The USWNTPA released a statement Friday noting it is not party to the lawsuit; the players are acting on their own. It said it supports their goal of “eliminating gender-based discrimination by USSF” but will continue to do so through the collective bargaining process.

U.S. Soccer declined to comment to ESPN on the new lawsuit.

How did we get here?
This is a new chapter in what is already a long story. Female players have for years argued they deserve the same compensation, treatment and working conditions as their male counterparts, as the issue has come to a head on multiple fronts since the 2015 World Cup.

In March 2016, Carli Lloyd, Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and Hope Solo filed a complaint (officially called a charge) with the Equal Employment Opportunity Commission (EEOC), a federal agency that can investigate and mediate allegations of discrimination but lacks the power to enforce rulings or enact penalties. Represented by the law firm of Winston & Strawn and attorney Jeffrey Kessler, the same attorney directing the current lawsuit, the five high-profile players alleged, among other things, that the women’s national team members were paid almost four times less than the men in 2015 despite generating significantly more revenue that year.

At the same time, the USWNTPA continued to negotiate a new collective bargaining agreement with U.S. Soccer. The two sides had operated with a memorandum of understanding after the previous CBA expired at the end of 2012. Prior to the EEOC charge, U.S. Soccer filed a lawsuit against the USWNTPA in February 2016, alleging players did not have the right to strike under that memorandum. A judge ruled in the federation’s favor later that year, based on provisions in the previous CBA.

In April 2017, the two sides ratified the new CBA, which includes increased direct and bonus compensation and equality with the men in areas like per diem rates, but the ratification did not negate or affect the open EEOC charge.

According to the current lawsuit, Lloyd, Morgan, Rapinoe and Sauerbrunn received right-to-sue letters from the EEOC last month, a necessary step under federal law to take Friday’s action. No longer a part of the active player pool, Solo is not part of the current lawsuit. Her separate complaint against U.S. Soccer was dismissed by the United Stated Olympic Committee last summer, when an arbitration panel ruled she failed to sufficiently pursue remedies within the U.S. Soccer structure.

Kevin Betz, managing partner of Betz+Blevins, an Indianapolis-based employment law firm, said plaintiffs have 90 days upon receipt of the right-to-sue letter to initiate a lawsuit.

“The EEOC probably put a lot of resources and effort into trying to get it solved and investigating it, you would think, because it involves such a long-standing feud that we all know about in the sports world and in the civil rights world,” Betz explained to ESPN. “So the EEOC probably put a good amount of effort into it, and held it for a while in its investigatory stage and finally said, ‘Look, we can’t get anything else done. You’ve got to go pursue your lawsuit or not.'”

So, while announcing the lawsuit on International Women’s Day certainly suggests an intention to make a splash, it is less a dramatic escalation than another incremental step in a process that has long seen players trying to leverage their platform to affect change.

“I understand the gravity and the weight of it, of filing a lawsuit,” Rapinoe told ESPN. “In that sense, it is a step up. But I also feel very much it’s just another step in the process. This has been a long process–honestly, a decades-long process for all the players that came before.

“For us, we just feel this is the next necessary step in our fight toward equality, equal pay, working conditions, all of that. I know it’s a big to-do, it doesn’t necessarily feel like that [to players], but I do understand how important it is and what it means.”

Why are the players doing this?
Members of the U.S. women’s national team are already some of the best compensated and most famous female team sports athletes in the world. And that’s why they will tell you they feel compelled to take these stands.

“This team, we’re kind of a visible team–people watch us play and know our names,” Becky Sauerbrunn said on Tuesday at the end of the SheBelieves Cup. “So I think it’s important that we kind of take that on, and we show that we are empowered women and that we will fight for things that we believe in, like pay equity.

“It’s a heavy responsibility, but it’s one that we gladly take on. And it’s something we’re going to keep trying to push and push and push until we feel that everything is equal. That’s far away from here, but that’s what we’re fighting toward.”

The issues are complicated. The law is complicated. The numbers are complicated, even more so because of FIFA’s role in the financial disparity for events like the World Cup. Rapinoe said her perception is that public support for equal pay has been overwhelming since the current generation of players made the issue a cornerstone of their social activism. To that end, the lawsuit contains a class action component that includes not just the 28 named plaintiffs, but anyone who played for the national team on or after Feb. 4, 2015, four days before the team’s first game that year.

“So I can imagine the public is sometimes like, ‘What the hell is this? We don’t understand,'” Rapinoe said. “We feel like that at times as well. But I think in general it’s very simple. We want to be treated equally. We want to be supported equally. We want to feel we are valued and cared for in the same way that men are–and just really in the way we deserve, period.”

At the very least, they want to make their case in the justice system.

What does the lawsuit mean for the Women’s World Cup that begins June 7 in Paris?
It likely doesn’t mean much on the field in the short term–the U.S. players are focused on the World Cup. Rapinoe said the fact that it is a World Cup year “wasn’t a driving factor” in the timing of the lawsuit; if anything, it placed more pressure on the American players.

“At the end of the day, we’re professionals,” Rapinoe said. “We want to win more than anybody else wants us to win. So when it comes time to lock in, I feel like this team is exceptional at compartmentalizing and blocking out distractions and doing everything we need to prepare to be the best team we can be in June.”

But the team with the highest profile in the tournament will spend a lot more time answering questions about something other than whether it can win back-to-back titles for the first time in its history.

Labor unrest has already played a part in this summer’s tournament. Euro finalist Denmark’s bid was seriously affected by its players’ decision to forfeit a qualifier while seeking equal pay. But it sounds like U.S. players will wait out the legal system while continuing to play as usual.

“My understanding is these things take a long time,” Rapinoe said of the expected timeline of the suit. “I guess it could reach a settlement and that would be much quicker. But I think that generally these things take a long time, and this is sort of the first step. And then we want to be solely focused on the World Cup and performing at the World Cup and hopefully winning another World Cup. That would be our focus there, and then we’ll pick it up as need be after.”

What athletes are saying
Other USWNT players who are part of the suit released statements Friday via The Levinson Group, which is responsible for communications for the plaintiffs:

Carli Lloyd, co-captain of the USWNT: “In light of our team’s unparalleled success on the field, it’s a shame that we still are fighting for treatment that reflects our achievements and contributions to the sport. We have made progress in narrowing the gender pay gap, however progress does not mean that we will stop working to realize our legal rights and make equality a reality for our sport.”

Alex Morgan, co-captain of the USWNT: “Each of us is extremely proud to wear the United States jersey, and we also take seriously the responsibility that comes with that. We believe that fighting for gender equality in sports is a part of that responsibility. As players, we deserved to be paid equally for our work, regardless of our gender.”

Christen Press, USWNT forward: “We have worked very hard with the USSF, including the Federation’s new leadership, to make progress on these incredibly important gender equality issues. We appreciate and agree with Carlos Cordeiro’s public statements that more should be done. Despite this progress, the fact is that the pay disparity and unequal working conditions persists. We believe that we have a responsibility to act as role models. Fighting for what we legally deserve is a part of that.”

Becky Sauerbrunn, USWNT defender: “The bottom line is simple: it is wrong for us to be paid and valued less for our work because of our gender. Every member of this team works incredibly hard to achieve the success that we have had for the USSF. We are standing up now so that our efforts, and those of future USWNT players, will be fairly recognized.”

The U.S. National Soccer Team Players Association (USNSTPA), the union that represents the U.S. men’s national team players, also released a statement in support of the plaintiffs:

“The United States National Soccer Team Players Association fully supports the efforts of the US Women’s National Team Players to achieve equal pay. Specifically, we are committed to the concept of a revenue-sharing model to address the US Soccer Federation’s ‘market realities’ and find a way towards fair compensation. An equal division of revenue attributable to the MNT and WNT programs is our primary pursuit as we engage with the US Soccer Federation in collective bargaining. Our collective bargaining agreement expired at the end of 2018 and we have already raised an equal division of attributable revenue. We wait on US Soccer to respond to both players associations with a way to move forward with fair and equal compensation for all US soccer players.”

Tennis star Serena Williams, who has fought for pay equality in her own sport, was asked what her message would be to the USWNT.

“I know that the pay discrepancy [in soccer] is ludicrous,” Williams said after her second-round win against Victoria Azarenka on Friday at the BNP Paribas Open. “It’s a battle. It’s a fight. You know, we have had some incredible pioneers in our sport that stood up in the ’70s and said, ‘We’re going to get paid what the men get paid.’ They stood up way back then. I think, at some point, in every sport, you have to have those pioneers, and maybe it’s the time for soccer. I’m playing because someone else stood up, and so what they are doing right now is hopefully for the future of women’s soccer.”

Questions Using Close Reading and Critical Thinking:

1. The first section of an article should answer the questions “Who?”, “What?”, “When?”, and “Where?” Identify the four Ws of this article. (Note: The rest of the news article provides details on the why and/or how.)
2. Does this article have any bias? Why or why not?
3. Explain two specific complaints the players offered in their most recent lawsuit against the U.S. Soccer Federation.
4. What previous steps have been taken by these athletes to fight for gender equality in their sport?
5. Summarize what the athletes are saying about the lawsuit and what their thoughts are on the discrimination they are facing.
6. What is U.S. Soccer’s position on why women’s soccer players are paid less than their male counterparts? Is it justified?
7. Using the statements provided by the U.S. National Soccer Team Players Association and tennis star Serena Williams, describe how the actions of the women’s soccer players could have lasting effects on not just the future of their sport but on other athletes around the world.
8. As a student, have you ever experienced discrimination or know someone who has experienced discrimination in an extracurricular activity? How was it handled? Is there anything you would do differently?

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