USWNT Partial Settlement Sets Up Appeal Which May Be Years Away

Michael McCann and Eben Novy-Williams
·5 min read

Members of the U.S. women’s soccer team, led by stars Alex Morgan, Megan Rapinoe, Carli Lloyd and Becky Sauerbrunn, have reached a partial settlement in their ongoing legal dispute with U.S. Soccer. The settlement averts a trial scheduled for next month regarding workplace conditions, which includes travel and hotel accommodations, venue selection and staff sizes.

Now the women will turn their attention to what they call the “central fact” in their fight for equality—compensation. They contend that they’ve been paid less than the men’s national team for the same work, and say they’ll appeal an earlier court ruling to continue that legal fight.

Although the path to appeal has been cleared, the hurdles of federal litigation remain. The case may not be resolved until 2022—or possibly much later.

Morgan and her teammates maintain that U.S. Soccer has violated two federal laws—the Equal Pay Act and Title VII of the Civil Rights Act. These laws prohibit employers from paying employees less on account of their gender or other protected demographic criteria. Experts retained by the women players insist they would have been paid much more if their compensation model had matched that of the men. The women note they have been paid less despite consistently performing far better than their male counterparts. While the men’s team has never appeared in a FIFA World Cup Final, USWNT has won four of the eight FIFA Women’s World Cup championships.

U.S. Soccer rejects these pay assertions as factually untrue and legally flawed. It stresses that USWNT and USMNT players knowingly agreed to very different systems of compensation. Women under contract with U.S. Soccer are guaranteed pay for playing on the national team, training and playing in the National Women’s Soccer League. USMNT players, in contrast, are subject to a system that generally eschews guarantees and relies more on pay-for-play and bonuses. U.S. Soccer also insists that the women’s claims are invalid under federal labor law since their union collectively bargained the pay conditions that they claim are unlawful.

In May, U.S. District Judge Gary Klausner sided with U.S. Soccer, granting summary judgment on pay-related claims. He essentially blamed the women players’ union for “rejecting an offer to be paid under the same pay-to-play structure as [the men’s team]” and being “willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players.” Yet the judge permitted the players to continue with secondary claims, including with respect to notable differences in travel accommodations. To illustrate, the men’s team typically flies charter whereas the women’s often flies commercial.

At the time, Morgan and teammates couldn’t immediately appeal Judge Klausner’s ruling on pay issues to the U.S. Court of Appeals for the Ninth Circuit, as the timing for an appeal was not yet “ripe.” Under the Federal Rules of Civil Procedure, an appeal normally requires final judgment by a district court judge. With the non-pay claims continuing, no such judgment was rendered.

Now the players can begin the process of appealing to the Ninth Circuit, generally regarded as one of the most progressive federal circuit courts in the United States. That said, luck of the draw with the assignment of judges is a key factor. Three judges will be assigned to an appeal panel. Also, the progressive bent of the Ninth Circuit is no longer assured. There are currently 47 judges and senior judges on the Ninth Circuit, 24 of whom were nominated by Republican presidents.

It’s also uncertain that progressive or liberal judges would necessarily support the players’ legal argument. The players’ union collectively bargained the terms that the players now seek to be deemed illegal. A judge who is inclined to protect the power of a union to negotiate certain working conditions with management might pause at ruling in a way that arguably undermines that power. A ruling on the USWNT-U.S. Soccer dispute would become case precedent and could be relied upon in other union-management disputes.

The settlement should also not be confused as offering a speedy path to an appellate resolution. The Ninth Circuit’s own data indicates that, from the filing of a civil appeal to a decision, normally between 15 months to 32 months pass.

While the appeal process could go well into 2022—and perhaps beyond if there are subsequent appeals, including to the U.S. Supreme Court—the collective bargaining agreement between U.S. Soccer and UWSNT is set to expire on Dec. 31, 2021. It’s possible the two sides could reach a settlement on pay terms as part of a new CBA.

The fight over equal pay has embroiled the national governing body for years, and was inspired by five USWNT players filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission back in 2016. U.S. Soccer President Carlos Cordeiro resigned in March shortly after the organization’s lawyers submitted a legal filing widely viewed as misogynistic. He was replaced by former USWNT player Cindy Parlow Cone, who has made resolving the dispute a top priority under her leadership.

Parlow Cone said Tuesday in a statement that she hoped the settlement would “serve as a springboard for continued progress.”

“As a former USWNT player, I can promise you that I am committed to equality” between the men’s and women’s teams, she said. “My goal is, and has always been, to come to a resolution on all equal pay matters and inspire a new era of collaboration, partnership and trust between the USWNT and the Federation.”

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