Court grants summary judgment for U.S. Soccer on key aspect of WNT lawsuit, handing federation big win

A U.S. district court judge handed U.S. Soccer a big victory in the class action lawsuit filed by 28 members of the U.S. women's national team.

Judge R. Gary Klausner  on Friday granted U.S. Soccer's motion for summary judgment in part, ruling that the case the players presented was insufficient to create a genuine issue of material fact on which to go to trial under the Equal Pay Act, namely the issue of whether the women were paid less than men's national team players.

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.”)

14 comments about "Court grants summary judgment for U.S. Soccer on key aspect of WNT lawsuit, handing federation big win".
  1. Wallace Wade, May 2, 2020 at 9:45 a.m.

    The USWNT has made mistakes on this along the way. They chose to continue to play, and continue to take $ during the "Victory Tour". Bad decision. Someone should have made a call to Eric Wynalda and discussed what the USMNT approach was to dealing with the Federation during the Copa America 1995. 

  2. Beau Dure replied, May 2, 2020 at 1:07 p.m.

    That would've violated the no-strike, no-lockout clause in the CBA.

  3. Santiago 1314, May 2, 2020 at 3:07 p.m.

    Unfortunate for the Women; They Should be PAID MORE than the Men.!!!... NOT EQUAL to a Bunch of Pansi Peddle Pushers we have seen the last 4 years.!!!... Having said that: You CAN NOT compare Apples-to-Oranges; TURN DOWN The Oranges, Then Go to Court to Try and Get BOTH the Apples and Oranges.!!!... Withdraw the Suit; and Renegotiate for THE WATERMELON.!!! We are With You.!!!

  4. Donald Lee replied, May 2, 2020 at 10:17 p.m.

    With due respect, the mindless, baseless, classless insults of the MNT players is absurd.  The greatest problem with US Soccer is now our fan base that hurls these insults with no quality thought behind it just like this so often, so loudly.  

  5. Santiago 1314 replied, May 3, 2020 at 12:05 a.m.

    @Donald,  it may have been Mindless, and Classless... But it was Not Baseless... Did you miss that our Men's National Team DID NOT Qualify for the Last World Cup.???... And as a Former member of the National Team and Holder of an "A" License... I get to make that charge... Current Mens Team Lacks "Character"... They need to Fight for the Red, White and Blue; When they put on that Shirt... Not worry about their "Style" and Looking like a "Real" Player for some Overseas Contract. 

  6. R2 Dad, May 2, 2020 at 3:11 p.m.

    Whadda ya got, Bob Esquire?

  7. Bob Ashpole replied, May 3, 2020 at 2:26 p.m.

    R2 Dad, I was unable to download the statements of uncontested material facts for both motions (and more importantly the responses to those statements). These are the most important documents in summary judgment proceedings. Without them I can't evaluate the decision.

  8. Bob Ashpole, May 2, 2020 at 6:25 p.m.

    It seems questionable to me that the judge evaluated pay by "games" played and by "teams". I wonder what authority he cites. I also wonder if the equivilent of payroll records were actually in evidence. USSF has relied on records of its revenues in the press.

    I am disappointed that the establishment issue was not decided. That was a largely a question of law rather than fact. 

    But then I should read the decision before commenting.

  9. Bob Ashpole replied, May 2, 2020 at 6:47 p.m.

    I downloaded the decision, but it is going to be a while before I read it.

    Regarding the evaluation by "team", there are actually three categories of players: Starters, Substitutes, and, last, those attending but not participating. In my view, the EPA grants individual causes of action against an employer. Average pay is not a defense to an individual claim. Under the EPA, proof of the intent to discriminate is not required. So it isn't a defense to prove a lack of discrimination. Title VII works differently. 

  10. James Madison, May 2, 2020 at 6:37 p.m.

    If I were advsing the women, my primary objective in the nbext CBA  negotiations would be to have simultaneous expiration dates for both the MNT and the WNT CBAs.  Then let US Soccer try to wiggle out of compensating the women as well as the men.

  11. Paul Berry replied, May 3, 2020 at 1:03 p.m.

    USSF offered the men and women the same deal, including World Cup bonuses.  The women turned out down in favor of a deal that included fixed salaries. Cordeiro confirmed that and the judge's ruling supports that. 

    Now the women have calculated that they took an inferior deal they want the difference. They want $66 million in back pay for making a bad decision. 

    The USSF deal did not include World Cup prize money, which is provided by FIFA. That's where there's a huge financial discrepancy. 

  12. Bob Ashpole replied, May 3, 2020 at 1:51 p.m.

    Paul Berry, that is a misrepresentation. USSF recently offered to give the women the terms of the men's old expired 2011 CBA. Not the "same deal" at all, given it is now 2020.

  13. Bob Ashpole replied, May 3, 2020 at 1:54 p.m.

    By the way, the offer to pay the women at the 2011 men's agreement rates implicitly admits that it had given the men better terms years ago.

  14. Bob Ashpole, May 3, 2020 at 2:05 p.m.

    I find it difficult to believe there was no genuine material issue of fact regarding pay. While I understand USSF's press releases, here is a contrary statement by the player's association.

    https://ussoccerplayers.com/2020/02/statement-about-the-uswnt-2017-2021-cba.html

    But then issues of fact are determined by what appears in the record, not what appears outside of court.

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