The Problematic Impact of an Equal Pay Act Decision
On February 22, 2022, the United States Women’s Soccer Team (USWNT) reached a settlement with the United States Soccer Federation (USSF) for equal pay. Some players and fans have deemed it a tremendous win for female athletes. The USWNT began its fight for equal pay in 2016. Since its founding, the team has excelled with achievements including four Olympic Gold medals, four World Cup championships, and eight CONCACAF Gold Cups. More importantly, the women’s team has surpassed the men’s team in terms of its winning record and international recognition in recent years. However, despite their success and dominance, the USSF failed to grant the women pay equal to their less successful male counterparts. Each team has a collective bargaining agreement (CBA) with the USSF that establishes the players’ compensation. The contract outlines that the players are to be paid appearance fees and performance bonuses for winning or drawing in a game.1 As a result of the discrepancy in pay rates between the fees and bonuses of the men’s and women’s teams, the USWNT sought roughly $67 million in back pay, compensation, and damages in their original complaint. Instead, they received $22 million in back pay, a $2 million fund to support the post-career goals of the players, and negotiations for a new CBA that would apply to both the men’s and women’s teams. Therefore, while the settlement made in February was a win as it marked the first successful equal pay lawsuit brought forth by female athletes, it was still $43 million short of what they demanded. This result is primarily due to the original decision by Judge Gary Klausner in the District Court for the Central District of California. Judge Klausner wrongly decided to grant summary judgment to the defendants of the USSF on the USWNT Players Association’s Equal Pay Act claim because his decision failed to comply with stare decisis regarding the Equal Pay Act of 1963 (EPA). Thus, he was incorrect to dismiss the claim of gender discrimination under Title VII hastily, to the detriment of the future of the USWNT and female athletes at large.
The first issue with Judge Klausner’s decision was his reliance on total compensation and neglect of precedent involving the EPA. Klausner claimed that the USWNT, as plaintiffs, did not satisfy the burden of proving that “the USWNT was paid more than the USMNT due solely, or in material part, to the USWNT working more than the USMNT.”2 As a result, he determined that because the USWNT made a total of $24.5 million and an average of $220,747.00 per game and the USMNT made a total of $18.5 million and $212,747.00 per game, the difference in total compensation was “insufficient to create a genuine issue of material fact for trial.”3 The reliance on total compensation directly violates the EPA as it requires equal pay about the rate of pay.4 As demonstrated by the USWNT, they were paid $1.725 million for winning the World Cup in 2015, whereas the USMNT would have received $2.5 million for qualifying for the 2018 World Cup if they had done so.5 In addition, in 2019, if each team had played a friendly (a game played outside of a recognized soccer competition) against the third-ranked team in the world, each player on the men’s team would have been granted an appearance fee of $5,000 with a performance bonus of $3,125 if their team had drawn (tied), and $12,675 if their team had won. By contrast, a women’s team player would have received an appearance fee of $3,500 to $4,250 and a performance bonus of $1,750 for a draw and $8,500 for a win.6 Thus, had Klausner considered the rates of pay as required by the EPA, he would have recognized that the difference in total compensation between the two teams resulted from the USWNT’s higher relative level of success and that this disparity in rates violates the EPA. Instead, he chose to erroneously use past salary as a justified means to preserve a perpetually unequal system.
Furthermore, Title 29 Section 1620.23 of the Code of Federal Regulations states that “the establishment by collective bargaining or inclusion in a collective bargaining agreement of unequal rates of pay does not constitute a defense available to either an employer or to a labor organization.”7 This regulation implemented in conjunction with the EPA has been supported in several precedent cases. In particular, in Corning Glass Works v Brennan (1974),8 the Supreme Court held that an EPA violation could not be circumvented by altering the collective bargaining agreements at issue. Furthermore, Rizo v Yovino (2017)9 cites Corning as precedent in holding that “‘market forces theory’ — that women will be willing to accept lower salaries because they will not find higher salaries elsewhere — did not constitute a factor other than sex,” which violates the EPA.10 Additionally, Rizo held that prior salary could not be used as a defense for an EPA claim and that it does not qualify as a “factor other than sex,” which the EPA requires. Thus, Klausner’s decision disregarded the regulation set in place by the EPA and contravened precedent that upheld and further clarified this law.
Despite the decision made by Judge Klausner regarding the EPA, the claim of discrimination based on sex warrants its analysis and should not have been dismissed in the manner that it was. The EPA and Title VII are intertwined, but there are subtle differences between them that impact how the Title VII claim should be interpreted. Klausner decided to preemptively dismiss the Title VII claim of discriminatory compensation with his decision that the USWNT did “not demonstrate a triable issue that the WNT players are paid less than MNT players.”11 This is unsatisfactory because other factors involved in the CBA for the USWNT must be considered from the perspective of discrimination of the basis of sex aside from compensation. The USSF has discriminated against its female athletes in the international realm and domestically in the National Women’s Soccer League (NWSL). “The Federation’s management role ensured that [they] controlled not only the women’s ability to represent the United States in international competition but also [their] ability to play domestically in a professional league.”12 In other words, it could shut down the NWSL, risking the careers of not only the USWNT but hundreds of other professional players in the league.13 Therefore, their power made it impossible for the USWNT to deny the offer of unfair and unequal wages without risking both salaries. Thus, although the women rejected an agreement with a similar structure to that of the men’s, they did so because of this friction with their NWSL contracts and because the men’s CBA lacked important features specific to women, such as maternity leave.14 Thus, because Title VII protects against discrimination on the basis of sex more generally in comparison to the EPA (which is concerned exclusively with compensation), Klausner should have evaluated the discriminatory compensation claim separately from his decision on the EPA claim.
While Klausner’s decision is mainly centered around the idea that the USWNT was offered a CBA similar to that of the men, he does not address the important disparities caused by a history of discrimination and inequality against female athletes. The current system demands that female athletes perform at their absolute best to receive what can hardly be called adequate or equitable compensation. The members of the USWNT have achieved ample success and serve as role models for millions, drawing an impressive following and making their mark. This was the first successful lawsuit by female athletes, but it is a mere steppingstone on a long and arduous path towards equality in athletics. Unfortunately, the settlement reached does not provide the USWNT with what it deserves and sets a dangerous precedent for other female athletes.
References
1 Alex Morgan et al., “United States Court of Appeals,” n.d., 50.
2 Gary Klausner, Alex Morgan et al. v. United States Soccer Federation, No. 2:19-cv-01717-RGK-AGR (United States District Court Central District of California May 1, 2020).
3 Ibid.
4 Alex Morgan et al., “United States Court of Appeals,” n.d., 50.
5 Ibid.
6 Levinstien, et. al., Morgan, et. al. v. United States Soccer Federation, No. 21-55356, accessed March 12, 2022.
7 “29 CFR 1620.23 -- Collective Bargaining Agreements Not a Defense.,” accessed March 12, 2022, https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XIV/part-1620/section-1620.23.
8 Corning Glass Works v. Brennan, 417 US 188 (Supreme Court 1974).
9 Aileen Rizo, “UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT,” n.d., 52.
10 Ibid.
11 Gary Klausner, Alex Morgan et al. v. United States Soccer Federation, No. 2:19-cv-01717-RGK-AGR (United States District Court Central District of California May 1, 2020).
12 Alex Morgan et al., “United States Court of Appeals,” n.d., 50.
13 Ibid.
14 Levinstien, et. al., Morgan, et. al. v. United States Soccer Federation, No. 21-55356, accessed March 12, 2022.