In a pair of dueling motions filed late Thursday, the U.S. women’s national team and the U.S. Soccer Federation both sought to finally put an end to the ongoing wage discrimination dispute that has lingered since 2016. The USWNT has asked the judge to forgo a trial and rule in their favor, while U.S. Soccer has asked for the case to be dismissed.
The USWNT is seeking back pay of nearly $67 million, arguing that U.S. Soccer made compensation decisions based purely on “gender stereotyping,” citing depositions from former U.S. Soccer president Sunil Gulati and current president Carlos Cordeiro.
U.S. Soccer, meanwhile, argues that the USWNT players have been paid under the exact structure they sought in collective bargaining negotiations and the players “asked for a very different contract” that offered them benefits the men didn’t get in their contracts.
The motions, which were filed as part of a procedural deadline, set the stage for a possible trial just as the USWNT will be preparing to go to Japan for the 2020 Olympics.
While there is no specific timeline for the judge to decide what to do with each side’s argument, the judge in this case, R. Gary Klausner, has tended to keep things moving at a steady pace. After all, both sides of the case had asked for a trial to be set well after the Olympics, but the judge set it for May 5, three months before the Olympics begin.
If the judge does not agree with either of these motions, the next step is to proceed with a trial, unless the two sides can give mediation another chance.
The USWNT’s side
The USWNT’s lawyers filed a motion for summary judgment, which means the judge would find the players had been discriminated against without the need to go to trial. As part of that, they filed a lengthy analysis determining the women were due up to $67 million in retroactive pay.
That $67 million figure is, in some ways, at the heart of this dispute. U.S. Soccer would probably be willing to settle this lawsuit for some sort of payout, but that figure is eye-popping considering U.S. Soccer plans to spend around $143 million total this year and lose about $20 million in the process. A $67 million hit would be significant.
The way the USWNT’s legal team arrived at that number is by taking the U.S. men’s national team CBA and applying it to the performance of players on the USWNT.
There’s no question that the men’s team earns larger game bonuses. The men can earn as much as much as $17,625 per game if they win, whereas contracted USWNT players can’t earn more than $8,500. That could account for some differences in pay because the women play a lot of games – and win a lot of games – whereas the men do not.
But one flaw in applying the men’s CBA to the women, which U.S. Soccer will surely push back on, is that a significant chunk of that money will have come from bonuses determined by FIFA.
The USMNT, as a team, can earn up to around $25 million if it wins the World Cup, in large part because FIFA would give U.S. Soccer $34 million as a prize. But U.S. Soccer has only agreed to give the women $2.5 million because FIFA offers such a smaller prize for the Women’s World Cup. It appears the USWNT is, in this specific example, holding U.S. Soccer responsible for FIFA’s discrimination against women.
Proof of discrimination
First, the USWNT seeks to establish that even representatives of the U.S. Soccer Federation believed the women had been discriminated against.
They cite a deposition where current president Carlos Cordeiro confirms that his campaign platform called for, in part: “Equal resources for our women’s program from the coaching staff to the training facilities to the travel accommodations. We don’t need to wait for CBA negotiations to make these changes. We can start now. It’s the right thing to do.”
Then, the USWNT’s lawyers argue that evidence suggests U.S. Soccer’s discrimination was “based not on actual facts that USSF relied upon when making compensation decisions, but on gender stereotyping – such as the assertion by former USSF President Sunil Gulati that male soccer players have more ‘speed’ and ‘strength.’”
Gulati’s testimony, which the USWNT’s argument references, is an exchange where he was pressed on whether he felt the women’s competition offered the same level of quality as the men.
“…Do I think that it's less attractive or less entertaining? I'm not saying that,” he responded. “Or relative quality, I'm not saying that. But I'm also not saying, in terms of absolute level of – whether it's speed or strength, they're the same. I think most people would accept that too.”
A key phrase that pops up throughout the USWNT’s case is “market realities.” They allege an attorney for U.S. Soccer told them during CBA negotiations that “market realities” meant the women can’t be paid equally to the men. When the representatives for the USWNT pushed back, another federation official allegedly doubled down on the “market reality” preventing the women from earning the same bonuses.
In a statement from spokesman Neil Buethe, U.S. Soccer pushed back against the idea that the CBA negotiations resulted in a contract the women didn’t want.
“At the moment, the women’s national team players are paid differently because they specifically asked for, and negotiated, a completely different contract than the men’s national team, despite being offered, and rejecting, a similar pay-to-play agreement during the past negotiations,” he said.
“Their preference was a contract that provides significant additional benefits that the men’s national team does not have, including guaranteed annual salaries, medical and dental insurance, paid child-care assistance, paid pregnancy and parental leave, severance benefits, salary continuation during periods of injury, access to a retirement plan, multiple bonuses and more.”
U.S. Soccer’s side
The federation, meanwhile, has asked the judge to dismiss the case on multiple grounds, offering up every possible argument that the USWNT’s claims are without merit.
Unequal pay in favor of the women
First, U.S. Soccer has again repeated its claims the USWNT has actually been paid more than the USMNT.
The federation argues the women had been paid $37 million during the period covered by the lawsuit while the men only earned $21 million. That figure, notably, includes NWSL salaries for the women, which the USWNT has argued is a separate job, but U.S. Soccer argues that even excluding NWSL compensation, there is a still a $6 million gap in favor of the women.
Assuming those numbers are true – despite the fact that the USWNT disputes them – the problem with that argument, which the women have argued all along, is that the USWNT had to win constantly to earn the money they did, while the USMNT was compensated handsomely for mediocrity.
There is perhaps some truth there. A USMNT player can earn as much as $5,000 just for showing up, even if his team loses. Most USWNT players won’t get such a bonus because they are on a $100,000 contract, but the non-contracted players can only earn up to $4,250 per game appearance.
But the most galling differences in bonuses come during the World Cup.
While U.S. Soccer will argue that the men get higher bonuses because FIFA offers more prize money, U.S. Soccer has also chosen to offer bonuses that don’t have any direct correlation to FIFA prize money. For example, the federation gives the USMNT $218,750 for every point earned during the World Cup group stage, which has no analog to how FIFA prize money is dispersed.
Two teams, two contracts
The federation also points out the two national teams negotiate as separate bargaining units, and the teams compete in separate competitions.
The women “never asked U.S. Soccer for terms identical to those found in the MNT’s contract,” the U.S. Soccer motion says. “Instead, the union asked for a very different contract containing valuable terms not found in the MNT’s agreement.”
Regardless of how negotiations went, the USWNT did end up with a collective bargaining agreement that is very different from the USMNT’s contract. Whereas USMNT players are paid primarily through bonuses and call-ups, the USWNT CBA features a mixture of guaranteed contracts for some players, which includes an annual salary of $100,000, and call-up bonuses for other players.
A spokeswoman for the USWNT, Molly Levinson, reiterated what the players argue in the lawsuit: They never rejected an identical compensation plan to the men because, although they were offered the same basic structure, the bonuses offered to the women were smaller.
“In the most recent CBA negotiation, USSF repeatedly said that equal pay was not an option regardless of pay structure,” she said in a statement. “USSF proposed a ‘pay to play structure’ with less pay across the board. In every instance for a friendly or competitive match, the women players were offered less pay than their male counterparts.
“This is the very definition of gender discrimination, and of course the players rejected it. As the players included in their summary judgment brief, the USSF official who took notes of the bargaining sessions admitted under oath at his deposition that the USSF never offered the WNT equal pay in bonuses for friendlies, in compensation for the World Cup or in compensation for other tournaments.”
U.S. Soccer, on the other hand, argues that guaranteed contracts are what the USWNT players really wanted all along. The federation’s case includes a reference to a presentation the USWNT players gave during CBA negotiations with a slide titled, “Benefits of being a contracted player with the USWNT.”
U.S. Soccer also argues that the jobs performed by the USWNT and the USMNT are different because the two teams “play in different venues in different cities (and often different countries), competing in separate competitions against completely different pools of opponents.”
That argument is a bit ironic considering U.S. Soccer’s motto in recent years has been “One Nation, One Team,” but the federation argues that the two national teams have different people in charge and the two teams never interact, so it would be unfair to compare their job to, say, an office job where women were paid less than men.
The women, of course, argue that they play the same exact game, with the same rules and the same expectation to win.
Caitlin Murray is a contributor to Yahoo Sports and her book about the U.S. women’s national team, The National Team: The Inside Story of the Women Who Changed Soccer, is out now. Follow her on Twitter @caitlinmurr.
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