The United States Soccer Federation filed its latest response to the appeal of the equal pay lawsuit from players on the U.S. women’s national team on Wednesday.
In the filing, the USSF stressed that in a decision made in May of 2020, U.S. District Court Judge R. Gary Klausner was correct in dismissing the players’ equal pay claims, primarily because the players’ total compensation spelled out in its Collective Bargaining Agreement (CBA) — including guaranteed salaries and benefits — was actually higher than men’s compensation during the class period in question. The USSF argued this was true regardless of whether these figures were computed on an aggregate, per game, or revenue basis.
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The filing noted that the percentage of money the women’s players received based on revenue generated came out to 27 percent compared to the men’s 24 percent. The filing added that this was true even if payments from Soccer United Marketing for the USSF’s media rights were distributed evenly between the two teams.
“The WNT deliberately negotiated for a CBA that prioritized guaranteed salaries and substantial benefits over higher contingent bonuses,” the filing read. “Plaintiffs cannot now, with the benefit of hindsight, pursue ‘equal pay’ claims based on a different pay structure they explicitly rejected. The district court agreed. This is not a factual dispute. It is not a battle of the experts. It is a fundamental disagreement about what equal pay means under the law.”
Molly Levinson, speaking on behalf of the women players, said in a statement: “USSF’s argument is a tired and frustrating anachronism that women should settle for less than they are worth. In arguing that the women were ‘paid more’ than the men, USSF completely ignores that the women’s team had to be much more successful than the men’s team to make about the same as the men.
“USSF’s false lip service regarding support for equal pay has been publicly dismantled by the Men’s team, the EEOC, and a host of former EEOC officials, along with many others, including USSF’s own employees, who have complained of the sexist culture that persists at the organization. It is a fact that if the women players were paid at the same rates as the men that they would have made three times as much as the men because they outperformed the men.
“It is also a fact that USSF — not FIFA — decides what to pay the men’s and women’s teams for the World Cup, and USSF made that decision before FIFA even announced its bonus structure. The reality is that USSF determines its own budget and its own rate of pay and cannot blame FIFA for its own ongoing and past discrimination.”
The suit was originally filed in March of 2019 and focused on two areas; equal pay and working conditions. While the working conditions claims were settled out of court, Judge Klausner granted the USSF’s request for summary judgement on the equal pay claims, effectively dismissing that aspect of the case.
The women filed an appeal last July to the U.S. Court of Appeals Ninth Circuit., stressing that the Judge Klausner erred by not looking at rates of pay and the fact that the women had to win more often than the men to receive their bonuses.
“The court did not account for performance — specifically, that the women had to be the best in the world to make about the same amount per game as the much less successful men,” the women’s appeal stated.
Complicating the case is the fact that the CBAs for the respective players’ unions have differing structures. The men operate under a pure pay-for-play structure in which players are only compensated for national team camps and games in which they appear. If a player can’t play because of injury or illness, he doesn’t get paid. The women operate under a hybrid model. At present, 16 players earn guaranteed salaries of $100,000 per year, as well as benefits including pregnancy leave, maternity leave, injury protection and a 401(k). They also receive money for playing in the NWSL. The remaining USWNT players are paid bonuses for camps and games in which they appear.
Currently the USSF is negotiating separate CBAs with both unions. The men’s deal expired at the end of 2018. The women’s CBA expires at the end of this year. Recently, the USSF announced last week that it was offering “identical” contracts to both unions, though a USSF spokesperson said the two deals would likely have some differences, such as pregnancy leave for the women. The USSF added that it wouldn’t agree to a CBA with either union unless the FIFA prize money issue was resolved.
The women’s lawyers have included the bonuses from FIFA tournaments in their calculations, resulting in a demand for $63 million in backpay. But it is FIFA, and not the USSF, that controls the amount of those bonuses. The USSF simply passes on a percentage of those bonuses to the players when they are earned; 85 percent for the men and over 100 percent for the women.
“The MNT has the potential to receive higher bonuses because they have the potential to bring in more revenue from their competitions,” the latest USSF filing read. “For example, the 2018 Men’s World Cup, which is organized and controlled by FIFA, paid the winning federation $38 million, but paid the 2019 Women’s World Cup winner only $4 million. That massive gap in FIFA prize money accounts for more than 90% of the bonus differential at the heart of Plaintiffs’ case. USSF is a powerful advocate for the growth of women’s soccer worldwide and continues to lobby FIFA to narrow that gap. But the law does not require USSF to pay the WNT players tens of millions of dollars in phantom revenue it never received.”
The USSF also countered the players’ argument that they have to win more often, by noting that some players need not even be called up in order to get paid. This was true during the pandemic-impacted year of 2020, when the contracted players continued to be paid despite games being canceled.
“WNT players are not just paid ‘to win’,” the filing stated. “They are not even just paid to play.”
The filing added: “Bonuses are not tied to wins in the abstract; they are tied to the revenue that comes with those wins, draws, and even losses. When performance is viewed holistically in this way, the WNT came out ahead: they were paid more than the MNT per dollar of revenue generated.”
The women’s appeal also compared bonuses and what it called appearance fees, which is playing in games regardless of outcome. The appeal stated that for both non-World Cup games and World Cup games, the men’s appearance fees were greater than those of both contracted and non-contracted women players. As an example, the appeal states that a male player received between $5,000 and $6,875 per game while a contracted woman received between $3,600 and $4,250 per game regardless of whether it was a World Cup game or not.
The USSF responded that the term “appearance fee” isn’t in the original filing, and thus can’t be introduced on appeal. That said, the USSF added that the numbers were based on factors that were unknowable at the time that the respective CBAs were ratified, like number of games and benefits paid out. The USSF also questioned how the numbers were arrived at.
“Even if this Court were to consider Plaintiffs’ new math in the first instance, it is severely flawed,” the filing read. “Plaintiffs’ average ‘appearance fee’ for the contracted WNT players assumes that each player ‘appeared’ in every game during the five-year period. That was not true for even a single player. And when those numbers are properly adjusted by the number of times a player actually appeared on the roster during those five years, several WNT players earned a higher per-game ‘appearance fee’ than MNT players.”
The appeal also argues that statements by USSF executives that the women were being discriminated against are further proof of the case’s merits. Carlos Cordeiro, the former president of U.S. Soccer, had said that “female players have not been treated equally” and the federation needed “to work toward equal pay for the national teams.”
“A reasonable jury could take the Federation at its word,” the appeal states. The USSF referred to the lower court ruling in which any purported statement that the WNT players were paid less could not “make it true.”