Shooting for Equality: USWNT Stars File Wage Discrimination Complaint

USWNT

The Players’ Cause of Action

It is not often that members of one of the most successful teams in a country make significantly less than their unsuccessful counterparts. However, this is exactly the case with the two United States national soccer teams. In their Equal Employment Opportunity Commission (EEOC) complaint[1] against the United States Soccer Federation (USSF), five stars from the women’s team Alex Morgan, Carli Lloyd, Megan Rapinoe, Becky Sauerbrunn and Hope Solo stated that despite producing higher revenues than the men’s national team, the women’s team received four times less than the men’s squad.[2] The complaint was officially filed on March 29st by prominent sports law attorney, Jeffrey Kessler.

Solo, the team’s starting goaltender, describes the frustration:

“We are the best in the world, have three World Cup Championships, four Olympic Championships, and the [U.S. Men’s National Team] USMNT get paid more just to show up than we get paid to win major championships.”

One example of this is that the U.S. Women’s National Team (USWNT) made only $2 million for their dominant World Cup title run, while the USMNT made $9 million the year before they even appeared in the World Cup. Another example of the compensation disparity is shown by merit pay. USWNT players receive $1,350 per match only if they win their game. On the other side, USMNT receive $5,000 for a loss in a similar match and can make up to $17,625 for a win.[3] The EEOC complaint calls for these discrepancies to be changed and has the potential to be a turning point for equal pay in women’s sports.

Merits of the EEOC Complaint

The EEOC complaint came as a result of the expiration of Collective Bargaining Agreement (CBA) between the USSF and the USWNT in 2012. In 2013, the two parties signed a Memorandum of Understanding (MOU), while details of the new CBA were being finalized. The women’s players union terminated the MOU because they believed its provisions, including compensation, were unfair.[4] The USSF, who believes that the MOU contained a no strike clause, filed a lawsuit against the union to determine whether or not the move was legal.[5] A Chicago court is expected to rule on whether this matter in June.[6]

The lawsuit over the MOU heightened tensions between the USSF and USWNT and spurred the USWNT to fight back and file this EEOC complaint. While arguments over the CBA led to the EEOC complaint, the lawsuits have no effect on each other’s outcomes. The EEOC examines claims of discrimination off of merit and federal law states under Title VII of the Civil Rights Act of 1964 which states that it is illegal to discriminate against an employee because of race, color, religion, sex, national origin, age, disability or genetic information.[7] The EEOC will look towards the Equal Pay Act passed in 1963[8], which was created out of “concern for the weaker bargaining position of women” and meant to protect employees from discrimination. The Act states that employers cannot use a CBA to protect itself for a violation of unequal pay and therefore the Chicago court’s ruling will have no effect on the EEOC complaint.[9]

The complaint addresses all of the fctors that the USWNT believes they have in their favor. After citing specific instances of their recent success, the USWNT’s complaint broke down the compensation discrepancies into four categories: (1) Friendlies, (2) World Cup, (3) Olympics, and (4) Sponsor Appearances and Ticket Revenue.[10] The complaint then goes into detail of the wage discrepancies between the USWNT and the USMNT in each of these categories.[11] The complaint concludes by stating that there are “no legitimate, non-discriminatory reasons for the gross disparity of wages” that they have shown and the team has been discriminated against solely because of their gender.[12]

The EEOC will need to determine if this is indeed true. There is no current schedule for this complaint, but the EEOC states that its average investigation took 10 months in 2015.[13] If the USWNT does prevail, they should have a lucrative outcome. When discrimination is found, the EEOC tries to put the victim in the same position they would have been in had the discrimination not occurred.[14] The employer is also required to stop any discriminatory practices and take steps to prevent discrimination in the future.[15] Finally, if the discrimination is found to be intentional, the USWNT may also receive compensatory and punitive damages of up to $50,000 per person.[16]

A Boycott of the Olympics?

While there is no current timetable for the EEOC complaint, it could cause immediate problems for the USSF. While the case awaits investigation, CBS’ Jim Axelrod has speculated that the USWNT may boycott the Olympics in August to give them leverage in their current negotiations.[17] This is problematic because the USSF’s annual report stated that they projected the USWNT to bring in $5 million in profits, while the USMNT is expected to have a net loss of $1 million.[18] The USSF may opt to work towards a settlement in order to avoid this boycott.

The reigning World Cup champion USWNT have a strong case after producing more revenue last year than the USMNT. The team will likely use its continued success and the upcoming Olympics as leverage to push the USSF to give the players equal pay as their male counterparts. While the USSF can try to make the case that the men’s soccer is a more popular sport that draws larger crowds and has the potential to generate more revenue, it seems that the numbers are on the side of the USWNT. Only time will tell how this case will evolve and whether the USWNT will receive the equal pay that it deserves. One thing is for certain though: this case will be monumental for the future of compensation in women’s sports.

Author Biography:

Andrew Washburn is a first-year student at Fordham University School of Law. Prior to attending Fordham Law, Andrew attended Fordham’s Gabelli School of Business and graduated with a degree in Business Administration with a Concentration in Management.

[1] http://big.assets.huffingtonpost.com/EEOCCharge.pdf

[2] Mary Pilon, US women’s soccer players sue over pay gap, Poltico (Mar. 31, 2016, 8:01 PM),

http://www.politico.eu/article/us-womens-soccer-players-sue-over-pay-gap/

[3] USSF Refutes Women’s Players’ Wage Complaint, Says Players Accepted CBA Terms, SBD (Apr. 1, 2016), http://www.sportsbusinessdaily.com/Daily/Issues/2016/04/01/Leagues-and-Governing-Bodies/US-Soccer.aspx?hl=uswnt&sc=0

[4] U.S. Soccer Federation sues women’s national team union over CBA, The Inquirer (Feb. 4, 2016, 3:50 PM), http://www.philly.com/philly/blogs/thegoalkeeper/US-Soccer-Federation-sues-womens-national-team-over-CBA.html#xdu8IqD3r1qAAx0v.99

[5] Lester Munson and Adrrienne Lawrence, Unwrapping the USWNT’s equal-pay filing and what it means, ESPN W. (Apr. 6, 2016), http://espn.go.com/espnw/voices/article/15138438/unwrapping-uswnt-equal-pay-lawsuit-means

[6] USSF Refutes Women’s Players’ Wage Complaint, Says Players Accepted CBA Terms, SBD (Apr. 1, 2016), http://www.sportsbusinessdaily.com/Daily/Issues/2016/04/01/Leagues-and-Governing-Bodies/US-Soccer.aspx?hl=uswnt&sc=0

[7] Civil Rights Act of 1964 § 703(a), 42 U.S.C. § 2000e-2(a) (2012).

[8] The Equal Pay Act of 1963, 29 U.S.C. § 206-(d).

[9] Id.

[10] http://big.assets.huffingtonpost.com/EEOCCharge.pdf

[11] Id.

[12] Id.

[13] U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employees/process.cfm

[14] U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employees/remedies.cfm

[15] Id.

[16] Id.

[17] USSF Refutes Women’s Players’ Wage Complaint, Says Players Accepted CBA Terms, SBD (Apr. 1, 2016), http://www.sportsbusinessdaily.com/Daily/Issues/2016/04/01/Leagues-and-Governing-Bodies/US-Soccer.aspx?hl=uswnt&sc=0

[18] Mary Pilon, US women’s soccer players sue over pay gap, Poltico (Mar. 31, 2016, 8:01 PM),

http://www.politico.eu/article/us-womens-soccer-players-sue-over-pay-gap/

Turf Wars: The Players’ Fight for Equality in the 2015 Women’s World Cup

I remember watching the championship game of the 1999 Women’s World Cup (WWC) with my parents, sitting in awe and feeling inspired. For non-soccer fans, it was the game in which United States’ defender Brandi Chastain scored the fifth penalty kick in a shootout to lead the U.S. to victory over China. Perhaps what people remember most, however, is how Chastain celebrated: she ripped off her jersey, fell to her knees in her sports bra, and flexed her arms. Critics labeled her celebration as somewhat controversial and inappropriate, notwithstanding the fact that removing a jersey was (and continues to be) a common goal scoring celebration among men. Ten-year-old me – and probably thousands of other aspiring soccer players – did not care; we saw our hero lift our team on the grandest stage. Fifteen years later, as a soccer player turned aspiring lawyer, I can’t help but continue to be inspired by the women in the 2015 World Cup. And not because of their in-game heroics – rather, because they have launched an uphill legal battle against FIFA, the international governing body of soccer.

In October 2014, a group of about sixty women soccer players filed a complaint against the Canadian Soccer Association (CSA) and FIFA, alleging that FIFA’s decision to host the 2015 Women’s World Cup on turf fields violates the Ontario Human Rights Code (the “Code”). In their claim, the players state that playing on turf rather than grass attacks their dignity, as men have never played a World Cup game on turf. Additionally, they claimed, playing on turf fundamentally alters the way that soccer is played, and increases the risk of player injury. The players have asked the CSA and FIFA to replace the artificial turf with real grass, but both parties have declined to act.

To make matters worse, some players have dropped out of the lawsuit due to fear of reprisal, such as being cut from their teams or compromising a national bid to host future World Cups. U.S. Soccer President Sunil Gulati, also a member of the FIFA Executive Committee, allegedly warned that he believed players risked suspension for taking legal action. However, the contingent supporting the soccer players is strong – with thirteen U.S. Senators, Tim Howard, Kevin Durant, Kobe Bryant, and Mia Hamm Garciaparra in support of the mission to “protect our athletes.”

Canadian laws seem to be more progressive than American laws on gender discrimination in sport. The Code, which broadly states that all people have the right to be free of discrimination when “receiving services” or “using facilities,” bars discrimination on the basis of gender (among other classifications) and has been applied to professional sports in the past.. (To put it into perspective, Title IX, which is probably the closest corollary under U.S. law and commands gender equality in college sports, does not apply to professional sports and Title VII of the Civil Rights Act has not been applied in this context before.)

After filing the claim under the Code, players must await a decision from the Human Rights Tribunal of Ontario, an administrative court, which determines whether the players established a prima facie case for discrimination. If so, the CSA and FIFA are given the chance to respond to allegations in writing. If unsettled, the matter will be sent to mediation. If mediation is unsuccessful, the matter is sent to the Tribunal for an administrative hearing, where the Tribunal will offer a remedy. As of November 7, 2014, the Tribunal sent the matter to mediation. With the WWC eight months away, the players have asked the Tribunal to accelerate the process.

The women want to play the WWC on grass fields, and FIFA won’t budge. FIFA Secretary General Jerome Valcke maintains that the decision to host the tournament on turf was not motivated by gender: “It would be very difficult to ensure natural grass pitches at all venues,” he stated, adding that “this is not a question of money, or differences between men’s and women’s events, but it is a matter of the natural conditions in Canada.” Even so, natural conditions have been overcome before in the interest of sport. In the 2013 UEFA European Women’s Championship, a turf field was converted to grass in just two weeks to comply with UEFA’s requirement that the final game be played on grass. Considering the timing and that the conversion costs about $300,000 USD per field, FIFA could easily convert these fields for $3 – $4 million USD a month before the event.

FIFA’s decision to use turf is not without merit, however. Four Major League Soccer stadiums and more than twenty European soccer clubs play on turf. The U.S. Women’s National Team Players Association also approves of the use of turf for regular season games, provided that it is of a certain quality. Turf is more cost efficient and easier to maintain than grass. However, the surface has been linked to increased injuries and overheating while playing. A recent study showed that players who played on turf were seven times more likely to get “turf burns” in a game than players who played on natural grass. It is not unreasonable to think that players might alter their style of play to avoid injury, which detracts from the integrity of the game.

With just eight months left before the WWC, action is needed. Canadian legal experts have opined that the players are fighting an uphill battle. While the players have valid safety concerns, they have not alleged an overwhelmingly strong case for gender discrimination, primarily because they have not alleged a discriminatory animus. Moreover, the Tribunal cannot offer injunctive relief over the parties involved, but only damages. Timing is also an issue, as the players waited until nine months before the tournament to file with the Tribunal, who normally takes over a year to offer a remedy. Alternatively, FIFA’s governing statutes provide for a dispute resolution process adjudicated by the Court of Arbitration for Sport – an impartial tribunal in Switzerland – which the players bypassed.

Despite these strong points in their favor, FIFA and CSA should do the right thing. They should protect our players. They should not force the players to boycott the WWC if they are forced to play on turf. If not for the players, FIFA should act to protect its public image: if the public believes that women players are being treated differently than their male counterparts, FIFA’s business and reputation could take (more of) a hit. Put simply, it should not allow the beautiful game to turn ugly.