Female Athletes Are Looking to Score Big with New Equal Pay Lawsuit

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Orrick - Equal Pay Pulse

The world of professional sports has long grappled with criticism of the stark pay differences between male and female athletes – think Billie Jean King’s “equal pay for equal play” push. A recent case brought by twenty-eight players on the United States Women’s National Soccer team (WNT) against the U.S. Soccer Federation (USSF) launched the issue back to the forefront of the pay equity arena earlier this month.

The suit – filed on March 8, 2019, which is International Women’s Day – follows on the heels of a March 2016 gender discrimination complaint filed by several WNT players with the Equal Employment Opportunity Commission (EEOC) and a subsequent action by well-known goalkeeper Hope Solo. This most recent suit is a proposed class and collective action in California federal court: it aims to certify a class under Title VII and a collective action under the federal Equal Pay Act. In either event, the proposed class would include all members of the WNT since Feb. 4, 2015.

At its core, the suit alleges that elite female soccer players are paid less than their male counterparts for each of a multitude of accomplishments, including making the national team and winning games. The plaintiffs claim that the work performed by members of the men’s and women’s teams is comparable because it requires both sets of athletes to “maintain competitive soccer skills, physical conditioning, and overall health by undergoing rigorous training routines (endurance running, weight training, etc.) and by adhering to certain nutrition, physical therapy and other regimens,” as well as “attend[ing] training camps and practices, participat[ing] in skills drills and play scrimmages and other practice events.” The lawsuit also claims that the women’s team has been more profitable for USSF, citing larger viewing audiences, more competitive matches, and accolades unmatched by the men’s team, including three World Cup titles and four Olympic gold medals. Importantly, this suit alleges a pattern of “institutionalized gender discrimination” manifested through where WNT games are held, their frequency, discrepancies in training and other resources such as medical treatment and coaching, different methods of transportation to matches, and other factors. Ultimately, the lawsuit seeks injunctive relief to compel the USSF to pay male and female players equally moving forward, along with compensatory and punitive damages.

A week after this suit was filed, USSF President Carlos Cordeiro released a public letter broadly stating that USSF “agreed to a fair and equitable collective bargaining agreement with the [WNT], which included a contract structure that the players specifically requested to provide them with a guaranteed salary and benefits.” It further stated that “[a]t no point since that time have players raised concerns about the [Collective Bargaining Agreement] itself, and we continue to work with them in good faith.” The letter did not reference any specific claims, but its message aligned with previous statements by USSF, namely in response to the March 2016 EEOC charge, when it expressed “substantial support for women’s soccer and WNT players over the last quarter century.”  USSF has also previously explained that direct comparisons between male and female teams may be misleading on their face, because male players are compensated with higher bonuses only when they satisfy certain goals, such as qualifying for the team, whereas female players negotiated for a higher base pay and better benefits.

California may well have been seen as a hospitable venue for the suit in part because of the state’s unprecedented stance on compensating female athletes. Last year, California’s State Lands Commission – a state agency that issues permits for the famous Maverick’s surfing competition in Half Moon Bay, California – required equal pay in terms of prize money for men and women as a condition of granting the necessary permit for the event. Subsequently, members of the California legislature introduced a bill that, if signed into law, could require equal prize money for male and female athletes at any sporting event on state-owned property.

Some professional sports have reached full pay equity for male and female athletes. For example, in Alpine World Cup Skiing, the International Ski Federation (FIS) which operates the World Cup tour has offered equal prize money to men and women skiers for the last 15 years. This year, phenom Mikaela Shiffrin set a record for 17 victories and won 1.6 times as much prize money as the best male skier on the World Cup tour. She was quoted in the Wall Street Journal as saying, “I’m very proud to be part of a sport where there is no gender pay gap.”

The results of this new suit remain to be seen, but the fact that WNT is favored to win this year’s World Cup in June may propel the case forward, at least in the news. For instance, Adidas has already announced that it will award the same performance bonus payout to female players if they win the 2019 FIFA Women’s World Cup as it would award to their male peers. And the lawsuit may generate rulings about the scope of Equal Pay Act and compensation discrimination claims and defenses that could have application far beyond the parameters of competitive athletics. Stay tuned for updates on this blog as this case progresses.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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