The WNT, like the Men’s National Team (MNT), has entered several collective bargaining agreements (CBAs) with USSF over the last decade. A current contract extends through 2021. The WNT’s CBA is styled as a “fixed pay” contract and provides guaranteed salaries and severance for covered players. The MNT, by comparison, is primarily a “performance” contract, and compensates players largely according to number of games they play with outcome-based enhancements. The CBAs overlap in various ways—the WNT’s contract also provides performance-based bonuses and compensation based on ticket revenues—but otherwise follow distinct compensation structures.

USSF’s pay practices came to a head in 2019 when the WNT, in the wake of its 2019 World Cup victory, alleged that players were paid less than their male counterparts. The WNT is among the most storied soccer franchises, with a record that includes four World Cup titles and four Olympic gold medals. The MNT is less competitive internationally and did not qualify for the 2018 World Cup. Nevertheless, in a March 8, 2019 complaint, the WNT asserted that “in 2014, the USSF provided the MNT with performance bonuses totaling $5,375,000 for losing in the Round of 16, while, in 2015, the USSF provided the WNT with only $1,725,000 for winning the entire tournament.” In addition, “if each team played 20 [friendly matches] in a year and each team won all twenty [], 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 complaint alleged that under the current CBA, “[e]ach Plaintiff has and continues to earn less compensation on a per game basis than comparable male players on the MNT.” Other allegations relate to differences in working conditions, including how the teams travel (the WNT on commercial flights and the MNT on chartered flights) and the quality of the turf of which the teams play. The court certified the WNT’s class on November 8, 2019.

In granting USSF’s motion for summary judgment as to the pay discrimination claims, the court held that the teams’ respective contracts provide for materially distinct compensation packages. Under the WNT’s contract, players receive greater upfront guarantees in exchange for relatively less performance-based pay. The inverse is true for MNT players. Analyzing the teams’ total compensation, the court noted that during the class period, the WNT played 111 games, and earned an average of $220,747 per game; the MNT, by contrast, played 87 games with an average of $212,639 per game. Although the WNT argued that players would have earned more under the MNT’s contract, the court noted that USSF alleged that the same would be true of MNT players under the WNT’s contract. Accordingly, without further evidence of a pay disparity, the court dismissed the WNT’s equal pay claims under both the EPA and Title VII.

The court also dismissed the WNT’s Title VII claims related to differences in turf based on USSF’s legitimate, non-discriminatory explanation. The WNT’s claims regarding other differences in “personnel resources and support services” (including medical and training support) and “travel conditions” (including differences in flights and hotel accommodations) survived summary judgment. With respect to the “gross disparity” in travel expenditures between the teams, the court noted that USSF’s proffered non-discriminatory reason—allegedly the desire to provide the “struggling” MNT with “competitive edge”— was “‘so weak’ and ‘implausible’ that a ‘reasonable fact finder could conclude that it was not an honestly held belief but rather was subterfuge for discrimination.’”

The decision is notable for highlighting the difficulty of establishing compensation discrimination when parties negotiate under a CBA. Additionally, the decision underscores the limitations on EPA and Title VII claims relative to claims under newer state law equal pay statutes. In states like California and New York, for example, equal pay claims may be easier for plaintiffs to articulate and more difficult for employers to defend.

The WNT is currently seeking an appeal of the decision on its equal pay claims. However, the district court on May 15 denied a motion to stay the trial on the WNT’s remaining working conditions claims, which is currently scheduled for September 15. Orrick will continue to track developments in the case.