Understanding the US Women’s National Soccer Team’s Legal Battle Over Equal Pay
Focusing on who generates more revenue fails to contextualize the women’s unequal pay within a culture that devalues women’s athletic achievements and women’s labor.
The United States women’s national soccer team (WNT), the reigning World Cup champions and the #1 ranked women’s national team in the world, has been engaged in a series of legal battles over the past year with the United States Soccer Federation (USSF) over alleged wage discrimination by the USSF against them.
There have been, in fact, two different cases brought by the WNT and USSF in separate legal arenas, which creates a somewhat confusing story for fans of the WNT to follow. The first objective of this post, then, is to provide a detailed, clear overview of the legal procedures going on in the WNT’s struggle for wage justice.
The second is to contextualize these legal fights over “equal pay for equal play” outside the soccer world. The main argument by both the USSF and commentators opposed to what the WNT is doing is that the WNT doesn’t generate as much revenue as the US men’s national soccer team (MNT), and so doesn’t deserve to be paid as much. What I hope to add to the conversation is that even if this argument about revenues is true, it misses the forest for the trees: focusing on simple revenue generation fails to contextualize the WNT’s unequal pay within a broader culture that devalues women’s athletic achievements and women’s labor.
The WNT’s Legal Battle #1: The Union’s Contract with the USSF
First, though, the fun stuff: outlining the two separate cases between the WNT and the USSF.
The first case arises out of a conflict between the USSF and the union representing the WNT over the USSF and union’s contract. The union, the United States Women’s National Soccer Team Players Association (the Players Association, for short), last negotiated a collective bargaining agreement (CBA) with the USSF back in 2005. The CBA is what governs how much money the players make, how many sponsorship events the players will appear at, and other similar obligations between the players and the federation.
The 2005 CBA contained a “no strike, no lockout” provision. In other words, the WNT agreed not to strike over their working conditions, and the USSF agreed not to lock the players out (prevent them from playing) at any time.
The 2005 CBA expired in 2012. In 2012, while the Players Association and USSF were negotiating a new deal, the National Women’s Soccer League was also being formed, which complicated negotiations. As such, rather than negotiate a new CBA entirely, the Players Association and USSF agreed to a “Memorandum of Understanding” (MOU) between them, which was meant to run through 2016. The MOU kept most of the terms of the 2005 CBA in place, updating them and adding to them in a few areas.
Problems began to arise, however, when the WNT began achieving unprecedented success on the world’s stage, and naturally sought to be paid accordingly. Since the 2005 CBA was signed, the WNT has won one Women’s World Cup, two Olympic Gold Medals, two CONCACAF Women’s Championships, and six Algarve Cups. In late 2015, after the WNT had won the Women’s World Cup and embarked on a highly lucrative national tour, the union began making noise about negotiating a better deal for the players.
In December of 2015, Richard Nichols, the General Counsel of the Players Association, put the USSF on notice that the Players Association intended to take action to terminate or modify the MOU as part of an effort to negotiate a new CBA. As he did so, he also made no promises the players would not strike as part of these efforts before the 2016 Summer Olympics; regarding the no strike, no lockout provision of the 2005 CBA, Nichols states the union’s belief that there was no CBA in place, and the MOU was terminable at will.
In response, the USSF sued the Players Association, seeking two things. First, the USSF sought damages related to anticipatory breach of contract, saying the Players Associations statements they may strike shows they intended to breach the 2005 CBA. Second, the USSF sought a declaratory judgment stating the 2005 CBA was, despite what the union argued, still in place, as the MOU merely added to the CBA and otherwise kept it in effect.
This is the case that was decided yesterday in federal district court. In her opinion, Judge Sharon Johnson Coleman sided with the USSF on their second claim, holding that the 2005 CBA was indeed still in place and thus that the WNT had no right to strike, thanks to the no strike, no lockout provision. The judge mainly relied on several e-mails exchanged between the Players Association’s former General Counsel, John Langel, and the President of the USSF, Sunil Gulati, in which Langel made clear the Players Association’s belief that the 2005 CBA would continue through 2016, except where it was modified by the MOU.
While a victory for the USSF, this case was always secondary to the other legal battle described next. The WNT were unlikely to actually strike before the Olympic Games this summer, and as the judge stated herself in a footnote in the opinion, the holding that the CBA is still in effect has no bearing on the women’s claim for wage discrimination discussed below.
The WNT’s Legal Battle #2: The Discrimination Charge with the Equal Employment Opportunity Commission
The next legal battle is much more explosive, and with the CBA issue settled, it is the battle where the WNT will be focusing their attention for the next several months leading up to the Olympic Games.
In March of 2016, five star players on the WNT — Hope Solo, Carli Lloyd, Megan Rapinoe, Becky Sauerbrunn, and Alex Morgan — filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging the USSF had discriminated against them in their wages in violation of Title VII of the Civil Rights Act and of the Equal Pay Act.
The Charge of Discrimination is not a lawsuit; filing a Charge with the EEOC is a procedural step the WNT players must take before they can sue under Title VII and the Equal Pay Act. Once a Charge is filed with the EEOC, the EEOC will investigate to determine whether it thinks discrimination has occurred, with several possible outcomes:
- If the EEOC decides no discrimination has occurred, it will dismiss the charge. Along with the dismissal, the WNT players would also receive a Notice of Rights, informing them of their right to sue in federal court on their own over their claim. Thus, a dismissal, while a bad sign for someone claiming discrimination, is hardly fatal to the claim; it just means the claimant will proceed in court on their own.
- If the EEOC decided it believes discrimination occurred, it will invite the WNT and the USSF to seek to resolve the complaint through a process known as conciliation. Conciliation is essentially similar to mediating the complaint.
- If conciliation still fails to resolve the issues, there are two further options. First, the EEOC may decide not to litigate, which would again leave the WNT players to sue on their own in federal district court. Second, the EEOC could decide to litigate the complaint itself, in which case the EEOC itself would sue the USSF over the alleged wage discrimination.
During the course of the EEOC’s investigation, the EEOC invites the organization being charged to submit a statement of position. The USSF’s position statement was submitted earlier this week, on May 31, and can be read here.
The USSF put forth three primary arguments in its position statement stating it had not committed wage discrimination. They are:
- The MNT produced greater revenues than the WNT, and thus were compensated greater commensurate to those greater revenues.
- The WNT had negotiated a different pay structure than the MNT, having sacrificed larger bonuses for playing in individual games in exchange for a larger base salary.
- The WNT had negotiated their CBA at a different time than the MNT, leading to differences in pay structure.
As Stephanie Yang writes in Stars and Stripes FC, in addition to these arguments, “a common thread running throughout the entire statement is that the WNT, in their collective bargaining, essentially undervalued themselves.” The USSF agrees that the WNT has performed excellently since the 2005 CBA was signed; it is the federation’s position that this excellent play is properly used as leverage to secure a better CBA the next time around, as opposed to justifying improved wages now.
It is the revenue difference between the MNT and WNT that forms the crux of the argument, however. As the USSF points out, the WNT has actually received a higher proportion of the revenue they generated over the past seven years, even if it is less revenue overall. Per the USSF’s statement, the MNT generated about $144 million in revenue between 2008 and 2015, while receiving $39 million in compensation, or 27% of the revenue. The WNT, during the same period, generated about $53 million in revenue, and received $27 million in compensation, or 51%.
The USSF concludes by arguing that it is “the most supportive national federation of women’s soccer in the world,” and that for the above reasons, the players’ Charge should be dismissed. The next step is to await the EEOC’s decision, though as stated above, the EEOC’s decision as to whether discrimination took place will not resolve the issue. Just as important will be the players’ willingness to take the claim to court, with or without the EEOC’s backing.
Contextualizing the WNT’s Legal Battles: Why the Revenue Argument Misses the Mark
Stepping away from the legal arena, the revenue argument is not just used by the USSF. Most commentators who have sided against the WNT in the court of public opinion have pointed out that the MNT generates more revenue than the WNT does.
Writing for the Federalist last year, D.C. McAllister said that “obviously, there just isn’t much interest among the American public for women’s professional soccer compared to men’s.” She points to perceived differences in ability between the men and women players as fueling this disparity:
“But even if we want to haggle about numbers and unfairness in broadcasting, there’s another harsh reality people need to deal with when we start talking about pay equality: Woman’s sports are not equal to men’s when it comes to quality. This doesn’t mean they’re not good or fun to watch. It doesn’t mean female players don’t work extremely hard or that they’re not amazingly gifted in their own right. They are. But there’s a reason sports are segregated. Women can’t compete with men. They’re not equal — and that’s why they shouldn’t get paid the same.”
Arguments like this don’t hold up to scrutiny. First, the argument that “women’s sports are not equal to men’s when it comes to quality” is a major assumption, as “quality” of play is not determined solely by the peak physical abilities of the players. The WNT players are *tremendously* technically skilled, and as anyone who watched Abby Wambach’s equalizer against Brazil in 2011 knows, the WNT’s matches generate as much excitement as any men’s match. But even assuming this argument were true, Americans support male athletes of lower quality all the time: college football and college basketball are undeniably of a lower quality than the NFL and NBA, and yet are massive revenue generators.
What arguments like McAllister’s fail to do is ask the question *why*: why is it, if the WNT is “good,” “fun to watch,” and “amazingly gifted in their own right,” that there isn’t the same level of public interest in women’s soccer? After all, it isn’t this way in other sports.
The gold standard of gender equality in sports is, of course, tennis. Women’s professional tennis players are as popular as, and draw similar TV ratings to, men’s tennis players. The men’s and women’s Grand Slam tournaments are held at the same time, and receive equal coverage in the media. At the Grand Slams, men and women compete for the same prize money.
This equal interest and pay in women’s tennis comes despite the fact that it would seem to suffer from the same problems as women’s soccer: the players compete separately, and there is a cultural perception that the women are not of the same athletic quality as the men, fueled by the fact that the women play three sets to decide a match while the men play five. Why, then, is there such a similar interest and pay in tennis, but not soccer?
First and foremost, the answer is that the women’s tennis players fought for it. When Billie Jean King founded the Women’s Tennis Association in 1973, one of her first priorities was to fight for equal prize money at major tournaments. The current equal prize money at the Grand Slams stands in stark contrast to the prize money at soccer’s World Cups: $35 million for the men, $2 million for the women.
The equal prize money at the Grand Slams then influences the perception of the two tournaments in the eyes of the public: it makes credible the idea that the men’s and women’s tournaments are of equal importance. Once the two tournaments are seen as equally important, public interest in both becomes equally high, the media covers both tournaments equally, and the revenues generated between the two become similar- thus warranting, under the revenue argument, the equal prize money in the first place.
In short: women’s tennis is as well-supported, and female players as well paid, as men’s tennis because tennis tournaments have invested as much resources in women’s tennis as men’s. When the sport’s governing bodies make major investments in women’s tennis, they get the desired major returns.
As Travis Waldron covered in an excellent piece for the Huffington Post, the powers-that-be in the soccer world have not made nearly the same investment in women’s soccer as in men’s, and so shouldn’t be surprised when that investment yields a lower return:
“The women’s game, meanwhile, has reached its current level largely in spite of the barriers that have been erected in front of it, without the opportunity to build the sort of popularity — or revenue-generating potential — the men enjoy. It’s impossible to know whether women’s soccer could ultimately match the men, because the same market that exists for men’s soccer has, for most of the sport’s history, been inaccessible to women at all.”
That inaccessibility is the context that arguments about revenue generation have failed to consider. In a culture that pays women 72 cents for every dollar a man makes, how can we possibly assume that women’s soccer has been given the same opportunity to flourish as the men’s game?
Give the women the same investment — which is to say, similar media coverage, similar play time slots, and yes, similar pay — and the women’s game will likely soon generate similar revenues as the men. Women’s tennis demonstrates this. At that point, the argument over equal pay will easily be settled.
Regarding the WNT’s current legal battle at the EEOC, I must regrettably conclude that I think the US women face an uphill battle. Title VII and the Equal Pay Act allow for differences in pay where non-discriminatory reasons can account for that pay. The USSF’s arguments that the MNT produces greater revenue are thus strong in a legal sense, and are greatly bolstered by the argument that the WNT negotiated the 2005 CBA that currently dictates their pay; there is a good chance the EEOC, and a court, would conclude that the women can simply negotiate a raise in their next contract.
But I would further conclude that such an application of the law would not be a just result. The revenue argument, while likely satisfactory under the law, fails to contextualize the WNT’s unequal pay within a society that devalues the athleticism and labor of women everywhere, in and out of sports. The USSF has not, despite their assertions to the contrary, made the same investment in the WNT as it has the MNT over the years. This is the primary reason why the women produce less revenue, and the biggest thing holding them back from achieving equal public interest and equal pay.
Thus, the Women’s National Team is right to fight this battle, even if they may temporarily be set back. Women’s tennis players, after all, were not handed their equal status; women have never been handed equal status. Just as pay equality was fought for in tennis and elsewhere, pay equality will need to be fought for in soccer. The WNT’s lawsuit has sparked a national conversation about how women athletes are treated and paid, much of it positive. Even if the WNT loses this legal battle, they’ve only just begun the war.