From the moment they filed their complaint in federal court, Alex Morgan, Carli Lloyd, Megan Rapinoe and 25 of their U.S. women's national team teammates have described their case for pay equity as a matter of justice that far goes beyond them.
On Thursday, the players took an important step to ensure the inclusiveness of their group.
The players’ attorneys filed a motion for class certification in the U.S. District Court for the Central District of California. If successful, the motion would expand the scope of plaintiffs to include other U.S. women soccer players who are not among the 28 named.
Specifically, the motion for certification proposes three discrete classes, or categories, of plaintiffs. U.S. District Judge Gary Klausner will decide on the merits of the motion. He could affirm, modify or deny all or parts of the proposed three classes.
To that point, while lawsuits are sometimes described in media accounts as “class action lawsuits,” a lawsuit is not a class action when it is filed. The presiding judge has to certify the proposed class or classes, and that typically occurs many months after a lawsuit begins. As explained below, the process can be complex.
Breaking down the first proposed class
The players’ first putative (proposed) class is one that seeks injunctive relief. This group would include all players on the USWNT at a currently undeterminable future date: the day when their litigation against U.S. Soccer eventually ends. This group of players would benefit from any court-ordered changes in pay rules.
The players charge that U.S. Soccer has unlawfully paid them low wages on account of their gender and, in doing so, violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964. U.S. Soccer firmly rejects this assertion. It also stresses that the women players are paid pursuant to a collective bargaining agreement that their own union negotiated.
If this litigation plays out to its natural conclusion—meaning the case goes to trial and is then subject to appeals—the litigation might not end until 2021, 2022 or even 2023.
A trial is scheduled to begin on May 5, 2020. The loser of the trial would then have an opportunity to appeal to a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit (the appeals court for federal district courts in California and other West Coast states). Data indicates that appeals to the Ninth Circuit tend to take the longest amount of time relative to other federal appeals courts and frequently extend well beyond one year. To the extent this trend holds true with the soccer case, an appeal would go into 2021 or possibly 2022.
The loser of an appeal to the Ninth Circuit three-judge panel would then have an opportunity to seek an “en banc” review by 11 of the 29 judges who serve on the Ninth Circuit. En banc hearings are rarely granted; one study concludes that less than 1/7th of one percent (.14%) of the Ninth Circuit’s docket consists of en banc appeals. The granting of an en banc review would add months, if not longer, to the litigation timeline.
The next stage of the litigation would be the loser having an opportunity to petition the U.S. Supreme Court. Although the Supreme Court only agrees to hear about 1% of petitions, if the U.S. Supreme Court accepted a petition in this litigation, the case’s timeline would then shift into 2022 or possibly 2023.
But that's getting ahead of everything. Back to the 28 players. Three or four years from now, the roster for U.S. women’s soccer will almost certainly be different. Some of the current players will age past their prime and be replaced by younger ones. Other players will be replaced by more talented and skilled rivals for roster spots. Still others will decide they wish to pursue different ventures in life and thus voluntarily leave the team. A lot can happen between now and a future date when any and all appeals have been exhausted.
By proposing a class for the members of the team whenever the litigation ends, the 28 players want to ensure that all players who are on the team at that time stand to gain from any injunctive—court ordered—changes to how U.S. Soccer pays the players. If no such class were created, then those future players would need to bring their own cases.
To add a complicating factor, those players would still be members of the USWNT Players’ Association that will negotiate a collective bargaining agreement with U.S. Soccer to replace the current CBA. The current CBA is set to expire in 2021. So future players, whether parties in this case or not, would still stand to benefit from collective bargaining impacted by a favorable court decision or settlement, as is discussed here.
Breaking down the second proposed class
The second proposed class is one that seeks back pay and punitive damages under Title VII of the Civil Rights Act. This group, as the 28 players propose, would include all USWNT players who have been members of the team at any time from February 4, 2015, through the date of class certification (the date of class certification is a future date that would be determined by Judge Klausner should he certify the class). This group seeks compensation for money that they would have earned had—as alleged by the players—U.S. Soccer complied with the Equal Pay Act and Title VII.
In addition to back pay, the players in this proposed class would be eligible for any monetary damages imposed on U.S. Soccer as a form of punishment. While backpay and other types of compensatory damages seek to make a plaintiff “whole again,” punitive damages are about sending a message: the defendant’s misconduct was especially egregious and neither the defendant nor similar entities should ever again engage in that kind of misconduct. At this time, it’s unclear if punitive damages would be applicable in a judgment in the players’ favor. However, the 28 players want to ensure that the group of eligible players for such money would include more than just themselves.
To that point, there is only one player who is pursuing her claims separately. Former USWNT goalkeeper Hope Solo filed a very similar lawsuit about seven months before the 28 players filed their case in March of this year. Solo’s case is before a different judge and in a different federal court. Despite some efforts to consolidate the two cases, they remain completely separate and on their own litigation tracks. The fact that only one player has filed her own case is instructive. It suggests, though doesn’t prove, that the vast majority USWNT players prefer to have their claims litigated together.
Breaking down the third proposed class
The third proposed class is one that seeks compensation under the Fair Labor Standards Act (FLSA), a law that contains the Equal Pay Act. Prospective damages under the FLSA would include monetary payments. This proposed class would consist of all USWNT players who have been members of the team at any time from March 8, 2016, to the present. The FLSA is conducive to class actions as it expressly permits one employee to bring a collective action on behalf of similarly situated employees.
As a final point with respect to the proposed classes, Morgan, Rapinoe, Lloyd and Becky Sauerbrunn would be designated the “class representatives” in the event Judge Klausner certifies the classes. Class representatives are expected to lack any disqualifying conflicts of interest. Along those lines, class representatives must ethically represent the interests of other class members, particularly since those other members tend to have limited or passive involvement in the case. Class representatives must also serve as active participants in the litigation—meaning, among other things, regularly consulting with the attorneys and offering feedback on prospective strategies.
Judge's decision to certify the classes is a multi-step process
Under Rule 23 of the Federal Rules of Civil Procedure, a judge will only certify a class if four prongs or findings are made:
The class is so numerous that joinder (joining individual claims) of all members would be impracticable.
There are questions of law or fact common to the class.
The claims or defenses of the representative parties are typical of the claims or defenses of the class
The representatives would fairly and adequately protect the interest of the class.
The players' attorney, Jeffrey Kessler, charges that the 28 players clearly satisfy these prongs. First, there are at least 50 members of the proposed class that seek back pay and punitive damages. Kessler calculates this estimate based on the number of current and former WNT players who are absent from the list of 28 players. He also notes that in the Ninth Circuit, 40 is typically the number needed to show a requisite numerosity for class certification. To that end, it would arguably be impracticable and would tie up the courts if each of the additional women soccer players filed virtually identical lawsuits.
Kessler also highlights that there are a number of legal and factual issues common to all USWNT players. The core issue, of course, is whether U.S. Soccer discriminates how it pays USWNT players based on those players being women. Beyond pay, Kessler stresses differences in working conditions—including quality of stadiums and travel—for the women players. To the extent the 28 players prove that they have been financially and professionally “injured” by U.S. Soccer, their teammates would have been similarly injured.
The 28 players are also depicted as raising claims that are typical of the proposed classes. These players contend that they are paid less because they are women and that other aspects of their employment are inferior for the same reason. Also, Morgan, Rapinoe, Lloyd and Sauerbrunn are portrayed as eminently qualified to serve as class representatives. Kessler highlights how their “vigor in pursuing these claims is well-established.” Along those lines, Kessler stresses how these four players, “have been fighting this battle for equality with U.S. Soccer for a prolonged period, filing complaints with the U.S. Equal Employment Opportunity Commission over three years ago.”
U.S. Soccer can contest the motion for class certification
U.S. Soccer will have an opportunity to file a brief in opposition. U.S. Soccer will have an incentive to do so since the more plaintiffs that are involved in the case, the higher the potential monetary damages U.S. Soccer would have to pay.
For instance, U.S. Soccer might object to the class of around 50 being “so numerous” that it warrants a class action. U.S. Soccer can also stress that if the additional 20 or so players who aren’t part of the group of 28 want to pursue related claims, they could have done so like Solo. Likewise, those players could still file their own lawsuits.
Further, U.S. Soccer could insist that USWNT players’ situations are more varied than the 28 players depict. As Kessler acknowledges in the motion, U.S. Soccer pays certain USWNT players through a base salary specified in a contract rather than through per-game roster payment. USWNT players who earn a contractual base salary agree to be available for training and games on demand. In contrast, USWNT players without a contract amount receive no base salary and are instead paid per game. U.S. Soccer could argue that these two varying pay systems lead to different kinds of employment and thus all of the players should not be in the same class action.
Kessler anticipates this line of reasoning by emphasizing that both contracted and non-contracted USWNT players are paid “far less” than members of the men’s team (prior to team performance bonuses). Also, bonuses paid to both contracted and non-contracted members are uniform and, again, less than bonuses paid to the men’s players.
While the 28 players and U.S. Soccer play out the litigation process, it’s possible that the two sides could reach an out-of-court agreement. Both sides might publicly (and privately) suggest they fully intend to go to trial, but chances are there won’t be a trial. Most civil cases settle before a trial occurs. This case is solvable if they can come to terms on money and pay structure, which they would need to do anyway in a new CBA. Both sides have retained highly accomplished attorneys who have no doubt settled more complicated litigations.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.