Morgan v. USSF: Docket
In the two key findings, the court ruled:
1. "It appears that the WNT did not make more money than the MNT solely because they played more games. Rather, the WNT both played more games and made more money than the MNT per game."
The court cited evidence offered by a federation expert witness that for games in the period 2015-19 the women's national team averaged $220,747 per game (a total of $24.5 million over 111 games) and the men's national team averaged $212,639 per game (for a total of $18.5 million over 87 games).
(Not included in those figures were such things as per-diem payments, payments to the respective players associations or payments to women's national team players for the NWSL salaries.
2. On the women's argument that they would have earned more under the terms of the men's collective bargaining agreement because of the men's higher bonuses, it "discounts the value that the team placed on the guaranteed benefits they receive under their agreement, which they opted for."
The women's collective bargaining agreement reached in 2017 included full-time contracts and severance, something the men don't receive.
“The history of negotiations," the court wrote, "between the parties demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and the WNT was willing to forgo higher bonuses for benefits, such as greater base compensation and the guarantee of a higher number of contracted players.
"Accordingly, plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT’s pay-to-play terms structure when they themselves rejected such a structure."
The court added that not only was the women's players' argument wrong to compare their pay under their agreement and under the terms of the men's CBA but it ignored the economic value of the "insurance" benefit of their agreement.
The ruling as it related the players' case under Title VII of the Civil Rights Act was a mixed bag.
The court found for the federation on the issue of games played on artificial turf but allowed claims of disparities in charter flights, hotel accommodations and support services (medical and training support staff) to go to trial, now scheduled for June 16. (The court noted that U.S. Soccer had not asked for summary judgment on the claims going forward related to hotel accommodations and support services.)
The players, whose damages they estimated at $66.7 million, will appeal the ruling.
Whatever the outcome of any appeal or any verdict in the parts of the case that remain, the federation's victory comes at a great cost.
Forget the legal fees it has paid, the federation lost lots of good will for the inflammatory filings (later dropped) of its attorneys (later replaced), and the case led to the resignation of president Carlos Cordeiro and apologies from his successor, Cindy Parlow Cone.
Here are key parts of the Equal Pay Act and Title VII of the Civil Rights Act:
-- The Equal Pay Act provides that an employer cannot discriminate between employees on the basis of sex by "paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”
-- Title VII prohibits employers from discriminating against any employee with respect to her “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (Unlike under the Equal Pay Act, plaintiffs alleging sex-based compensation discrimination under Title VII need not establish that they are performing equal work for unequal pay. They need only show that sex “was a motivating factor for any employment practice, even though other factors also motivated the practice.”)