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October 04, 2021
U.S. Women’s Soccer Team Challenges Dismissal of Equal Pay Claims

By John Clifford

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The U.S. Women’s National Soccer Team (USWNT) recently appealed a California federal district court judge’s decision to throw out their equal pay lawsuit against the U.S. Soccer Federation (USSF).

How we got here. The USWNT suffered a surprising blow in their fight for equal pay in 2020 when the judge ruled:

  • The women were barred from asserting pay discrimination claims because they had negotiated their own collective bargaining agreement (CBA), which has a different compensation structure than the men’s team; and
  • The USWNT members made slightly more than the male players on a per-game basis.

Arguments on appeal. In appealing the decision to the U.S. 9th Circuit Court of Appeals (which covers Alaska, Arizona, California, Guam, and Hawaii) on July 23, 2021, the USWMT members argued the district court improperly treat the women’s CBA “as somehow waiving their equal pay rights.” The players claimed the judge ignored critical information about their pay structure, resulting in an incorrect analysis of their earnings.

Specifically, when the judge calculated the players’ per-game earnings, they claim he didn’t account for the fact that players on both the men’s and the women’s teams are paid more for participating in, and winning, higher-stakes games such as World Cup matches. As a result, the judge’s analysis overlooked the USWNT’s extremely high level of success, which significantly increased their average per-game earnings. Had the men’s team enjoyed similar success, their earnings would have far outpaced the women’s.

Legal steps. Numerous outside parties have filed briefs in support of the USWNT’s appeal. Notably, the Equal Employment Opportunity Commission (EEOC) recently filed a 47-page amicus brief arguing, among other things, the “undisputed record of evidence shows” the performance bonuses available to the women’s team under its agreement were unequal in nearly all categories.

The USSF has until September 22, 2021, to file a response to the USWNT’s appeal, after which the 9th Circuit will determine whether the high-profile case will be allowed to continue.

John Clifford is an attorney with FortneyScott in Washington, D.C. Clifford’s practice focuses on counseling federal contractors regarding their affirmative action and nondiscrimination obligations and advising in matters involving the DOL’s Office of Federal Contract Compliance Programs. He also has extensive experience working with employers on wage and hour matters, including advising federal contractors on compliance with prevailing wage laws enforced by the DOL Wage & Hour Division, and providing support for government investigations and audits. You can reach him at jclifford@fortneyscott.com.

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