By Mary Cunningham.
On April 12, the U.S. observed Equal Pay Day—a day created to discuss the pay gap between men and women. Equal Pay Day received special attention this year because of its temporal proximity to the day the U.S. Women’s National Soccer Team (USWNT), represented by five of its best players, filed a complaint with the Equal Employment Opportunity Commission against the U.S. Soccer Federation alleging wage discrimination. The U.S. Soccer Federation is the governing body of soccer in all its forms in the United States. U.S. Soccer also determines compensation for members of both the U.S. men’s national soccer team (USMNT) and the women’s national team.
The women’s team asserts that the players for the men’s team are paid almost four times more than the women’s players. Their complaint notes, for example, that the men are paid no less than $5,000 for an exhibition game, and as much as $22,625 for winning the game. In contrast, the women are paid $3,600 to play an exhibition, and are paid only $4,950 for a similar win. The team bonus the women received after winning the 2015 World Cup was also several million dollars short of the team bonus the men received in 2014 after being eliminated in the second stage of the tournament. This pay disparity seems unjustified particularly in light of USWNT’s claim that they bring in more revenue than USMNT.
U.S. Soccer disagrees with USWNT on revenue, arguing that USWNT is drawing from a particularly successful year to make broad conclusions. The federation also notes that FIFA tournament payout for men’s soccer is dramatically higher than payout for women’s soccer. They argue the difference in payout primarily explains the pay gap for the men’s and women’s World Cups.
For a wage discrimination claim under Title VII, USWNT has the difficult task of showing proof of U.S. Soccer’s discriminatory intent. To establish a prima facie case for wage discrimination under the Equal Pay Act (EPA), they must show that the women’s and men’s players perform equal work, which involves substantially equal skill, effort, and responsibility in similar conditions. If this standard is met, the burden shifts to U.S. Soccer (the employer) to prove that the difference in pay is justified by one of four defenses: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”
The fourth defense—“factor other than sex”—has been broadly interpreted. For example, the Seventh and Eighth Circuits have held that “acceptable business purposes” arising from “factor other than sex” does not need to be a reasonable business purpose to constitute a defense. Essentially, if U.S. Soccer is correct and the men’s team produces significantly more revenue than the women’s, paying the women less may be acceptable to a court unwilling to adjudicate the wisdom of business decisions. U.S. Soccer, however, would likely avoid simply arguing women’s pay is justified because “market forces,” such as the professional soccer job market, have determined that women are paid less than men. This argument seems problematic because, if adopted, it frustrates the EPA’s goal of overcoming historic sex-based wage discrimination created by market forces.
At this point, a likely strategy for USWNT involves tackling wage issues during their collective bargaining negotiations to avoid what would be an interesting, but tricky, legal battle.