Shots on Goal: Will the U.S. Women’s Soccer Team’s Gender Discrimination Lawsuit Succeed?

The U.S. Women’s national soccer team is among the top women’s soccer teams in the world–potentially the outright best. They’re currently ranked first in the world and generally rank no lower than second. They’re also winners of three Women’s World Cups, four Olympic gold medals, and over 17 other high-tier international cups.

The Men’s U.S. team, while filled with extraordinary talents, has never been able to compete with the ladies in terms of success. Currently ranked 29^th in the world, they have never placed higher than third in a World Cup and have never approached the women in terms of success in other tournaments.

Given the consistent distinguished performance of the Women’s team, you’d think their pay would be greater than their male counterparts–or at a minimum similar to each other. You’d be wrong by a matter of degrees.  The men’s team makes over three times more for a loss than the women’s team makes for a win. Where the men win this discrepancy increases to as high as 13 times as much as the women.  This is before taking into account other contract incentives which widen the gap even further.

The women’s team has had enough of this discrepancy in pay. They recently filed a complaint with the Equal Employment Opportunity Commission accusing the U.S. Soccer Federation of gender-based discrimination in their pay.  The numbers above are from their complaint.  The difference in pay between men and women’s sports is far from a new story.  However, the U.S. Women’s soccer team face an uphill battle in their lawsuit.  In order to understand why, let’s look at the law behind cases alleging gender-based wage discrimination.

Gender-Based Wage Discrimination: The U.S. Women’s Soccer Team’s Lawsuit

Hope Solo, famous goalkeeper for the U.S. team and co-plaintiff in the team’s complaint, has been quoted saying “we are the best in the world, have three World Cup championships, four Olympic championships…[and the players on the men’s team] get paid more to just show up than we get paid to win major championships.” So if this is true, how could the women’s team lose a case alleging discrimination in how they get paid?

The Equal Pay Act makes disparate pay based on gender illegal.  In other words, an employer can’t pay you less because you’re a woman or because you’re a man.  In order to successfully sue under the Equal Pay Act a plaintiff must show several things: you’ve been wrongly discriminated against based on a protected characteristic, you’re being paid unequally for doing the same work, and you work under similar conditions in the same company as those being paid more than you. 

Discrimination can be shown through patterns in the behavior of your employer, such as consistently paying women less across the board. Work is considered equal where it takes place in similar working conditions and requires the same level of skill, effort, and responsibility.  Based on the women’s team’s complaint, proving both of these should both be easy as dribbling the ball for the ladies.  They have demonstrated that the women’s team is paid less across the board for the same work as the men’s team.

While U.S. Soccer disputes the accuracy of the women’s teams’ figures, even were the difference in pay substantially smaller it could still establish disparate pay. However, even though the case looks strong on its face, there are two huge hurdles the women’s team will need to overcome in order to be successful in their suit: the difference in earnings between men and women’s soccer and the fact that the women’s team collectively bargained for their current pay agreement.

How the Shot Could be Blocked–Difference in Revenue

Under the Equal Pay Act, there are several ways an employer can counter a claim of wage discrimination.  These ways include, among other things, a proven ability to generate higher revenue to support a differential in pay.  Where an employer can show such an alternate basis for the difference in pay, it is a defense to an allegation of wage discrimination.

U.S. Soccer will certainly argue that the ladies make less money than the men and that this is the basis for the difference in pay. In their complaint, the women’s team alleges that last year they made $20M more in revenue than the men’s team while attracting similarly sized crowds.  However, this being said, last year’s Women’s World Cup garnered $17M in sponsorship revenue.  This is a record amount, nearly tripling the income from 2011.  The men’s World Cup raised $529M last year.  The prize pool for the last years Women’s World Cup, a substantial source of potential revenue, was $15M.  The prize pool for the men’s World Cup was $576M.

It is extremely dubious that the men’s event is so much more exciting that it merits 38 times the prize pool of the women’s event.  However, be it social stigma or other cause, this is the reality of the situation.  U.S. Soccer will argue that this substantial difference in prize pool and sponsorship money justifies the difference in pay between the men and the women.  Hope Solo has told news sources that she and her teammates believe they would make similar money to the men if they were provided a similar marketing budget.  Unfortunately for the team, without evidence to back Ms. Solo’s argument up, U.S. Soccer is likely to prevail in their defense.

Disagreeing Over the Rules–Is the U.S. Women’s Soccer Team Bound by Their Contract?

Even if the team can overcome this argument with proof of equivalent or greater revenues to the men, they face another serious legal problem in their case–the fact that the team’s union negotiated the terms of their contract. An agreement which, according to U.S. Soccer, they negotiated for not once, but twice.

It is unclear whether the team is still bound by this contract. The agreement ostensibly expired in 2012.  However, U.S. Soccer claims that an agreement was later signed extending the agreement.  U.S. Soccer has argued, in response to the complaint, that the contract includes benefits not included in the men’s contract, such as maternity leave.  They also state that pay structure, negotiated for by the team’s union, trades a more conservative pay structure for guaranteed compensation.  This argument of pay structure may undercut the team’s discrimination claim by explaining the difference in compensation between and men and women in a way that does not imply gender-based discrimination.

A secondary, and somewhat less established, concern is the fact that the contract is a product of union negotiations. The right to be represented by unions is ensured by the National Labor Relations Act (NLRA).  There are examples of things normally illegal under federal law being acceptable where they are the product of union negotiations.  For example, the salary caps common in sports would generally be considered illegal are usually ruled permissible where agreed to by a union.

However, there is very little case law as to how to treat any particular conflict between the right to union negotiations under the NLRA and other federally guaranteed rights.  It seems unlikely that something as fundamental to civil rights as the Equal Pay Act could be waived by union negotiations.  However, U.S. Soccer could credibly claim that, even if the contract is wage discrimination, the fact that the union negotiated for the contract prevents them from being liable.

The 2015 Women’s World Cup Final, with the U.S. women’s team taking it all, was the most watched soccer match in U.S. history. The women on the team are extraordinary athletes, worthy of every accolade they have received.  Disparity in pay between male and female athletes is nearly universal to sports; the goal the ladies of the U.S. Women’s team have set themselves is a noble one.  However, their case is not shooting on an empty net.  They’ll have a lot to overcome if they hope to succeed in their lawsuit.