US Women's National Team Reaches Historic Settlement

The United States Women’s National Team (“USWNT”) have reached a settlement with the US Soccer Federation (“USSF”) ending a multi-year lawsuit centering on gender discrimination. In May 2019, the USWNT filed a complaint against the USSF on the grounds of unequal treatment and pay under Title 7 of the Civil Rights Act and the Equal Pay Act, along with claims of disparities involving levels of coaching, training, travel and use of facilities. The USWNT argued that, despite outperforming the United States Men’s National Team (“USMNT”) in almost every major tournament in the recent era, the USWNT players were consistently paid less for doing the exact same job. After almost three years of litigation, on February 22, 2022, the USWNT reached a historic $24 million settlement with USSF. Of the settlement funds, $22 million will go directly to the USWNT players. The settlement also includes a commitment from USSF to provide an equal rate of pay going forward for the women’s and men’s national teams in all friendlies and tournaments, including the World Cup.

May 2020 Ruling

In May 2020, a federal judge in California ruled in favor of the USSF on almost all major points of the lawsuit. By granting summary judgment to USSF on most portions of the equal pay lawsuit and denying summary judgment to the USWNT, the judge held that the USWNT had not demonstrated a triable issue establishing that they were paid less than the USMNT. In so ruling, the judge relied heavily on USSF’s accounting which evidenced that women were paid more on a per game basis than their male counterparts during the period in question. Further, the judge relied on the differences in the Collective Bargaining Agreement (“CBA”) respectively negotiated by each team as the main reason behind the differences in pay. The women’s CBA focused on a salary structure for top players, with an annual guaranteed salary and an option for a smaller match bonus. The men’s CBA, however, was modeled on a pay-to-play structure and allowed them the option of larger match bonuses. These negotiated differences, reasoned the judge, were the reason for the disparity in pay, not the players’ gender. 

July 2021 Appeal

In July 2021, the USWNT appealed the judgment, arguing that the lower court judge ignored the fact that their higher per game rate was due to performance. While it was undisputed that the women were in fact earning more per game during the period in question, the USWNT argued that the reason they were earning more was because they were winning more often than the USMNT. Facts and arguments in support of the USWNT’s position included that:

• The USWNT continues to be the most dominant team in women’s soccer, winning a record-breaking four World Cups. The USMNT, on the other hand, has never won a World Cup.
• During the time frame specified in the complaint, the USWNT won an unprecedented number of games and two World Cups, while the USMNT failed to qualify for the World Cup. Based on the current CBA and pay structures, even if the USMNT had in fact qualified for the 2018 World Cup, but lost every game, the per-game average pay for men would have exceeded the per-game average pay for women — who won the tournament. By this reasoning, the women had to be the best in the world if they wanted to receive pay on par with their male counterparts.
• In addition to the per-game average pay differential, assuming both teams won the tournament, the World Cup prize disparity is massive. If the USMNT were to be World Cup champions, the prize money is $440 million. When the USWNT wins the World Cup, however, the prize amount is $30 million. 

Further in their appeal, the USWNT touched on the CBA differences. While they did negotiate different agreements, the USWNT argued that they were never offered the exact same CBA as the men. If the women had been offered the same appearance fees and bonuses, they argued, they would have taken it. 

December 2021 Written Submissions

Coming off a fourth World Cup win in July 2019, in which “Equal Pay” was chanted by fans in the final game, it was evident that the USWNT had the support of the soccer community. When it came time to deliver their final closing written argument in December 2021, however, not only did the USWNT have the support of the female athlete community, they had the support of legal precedent. The USWNT’s brief cited a recent appeal, Tracy Sempowich v. Tactile Systems Technology Inc. (4th Cir. 2020), in which the Fourth Circuit Court of Appeals held that an employer violated the Equal Pay Act by paying a female employee at a rate less than a similarly situated male employee. There, while the male and female employee were paid the same in commission, the base rate of pay for the female employee was lower. The appellate court judge ruled that the female employee was only paid the same as her male counterpart because she had made more sales - she had to work harder to make the same amount of money. Relying on the reasoning from the Sempowich decision, the USWNT argued that the approach taken by the lower court judge was incorrect. Comparing total compensation was legally insufficient to determine whether there was discrimination. Rather, consistent with the recent legal precedent, the USWNT argued that the only way they could earn an equal amount, or more than, the men was by outperforming them. By definition, that is not equal pay for equal work.  

February 2022 Settlement

With oral arguments set to be held this month, the USWNT and USSF instead reached a settlement of historic proportions. A $24 million settlement was announced, with $22 million in backpay to be distributed in a manner selected by USWNT team members, and an additional $2 million to be placed into an account aimed at benefitting USWNT players in their post-career goals and charitable efforts related to women’s and girls’ soccer. The settlement also includes an agreement by USSF that, going forward, men and women players will be paid at an equal rate on all fronts, including World Cup bonuses. While this result has been years in the making, it is still contingent on the ratification of a new CBA. The current CBA’s are set to expire in March and the settlement will be ratified once the new agreement has been approved. 

Nonetheless, the settlement between the USSF and USWNT is historic in achieving a future commitment to equal pay among male and female athletes.