The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday a federal district court judge granted summary judgment on the most significant parts of the Equal Pay Act and Title VII claims of players on the U.S. Women's National Soccer Team (WNT), who had alleged they were paid less than players on the men's team (MNT) for equal work. The judge concluded that the undisputed facts established that the WNT had been paid more on both a cumulative and an average per-game basis than the MNT over the last several years–and thus had no chance of prevailing at a trial. In my view, the ruling is dubious and will likely be overturned on appeal.
I blogged about this case back in March, when lawyers for the employer in this case–the U.S. Soccer Federation–argued that men and women's soccer players do not perform substantially equal work. Fallout quickly followed from the lawyers' perverse position that America's reigning world champion women's team was not as good as the men's team, which failed to even qualify for the World Cup. The President of U.S. Soccer, Carlos Cordeiro, apologized for the filing and promptly resigned. But while U.S. Soccer brought in new lawyers on the case, they never withdrew their offensive argument.
And yesterday, the U.S. Soccer Federation succeeded in dismissing the most significant claims of the WNT. The district judge handling the case agreed with U.S. Soccer that the undisputed facts demonstrated that no reasonable juror could conclude that the women were paid less than the men. While news articles have briefly described the outcome, no analysis that I have seen has drilled down into the legal merits of the ruling. Nor are the legal filing associated with the ruling readily available on the web. As someone who has experience with summary judgment issues, I thought a more detailed analysis (with links to some of the actual court documents) might be of interest. My reading of the case is that the judge's ruling will quite likely be overturned on the inevitable appeal.
Here's the linchpin of the district judge's ruling against the women:
It is undisputed that, during the class period, the WNT played 111 total games and made $24.5 million overall, averaging $220,747 per game. By contrast, the MNT played 87 total games and made $18.5 million overall, averaging $212,639 per game. Based on this evidence, it appears that the WNT did not make more money than the MNT solely because they played more games. Rather, the WNT both played more games and made more money than the MNT per game. (S.J. Order at p. 18).
But while the judge's math is accurate, the numbers miss the forest for the trees. While the WNT ended up earning about the same amount of money as the MNT over the relevant time period, the women were far more successful than the men's team. The pay structures for both the women's and men's teams provided bonuses for winning games. Because the WNT won more games (and particularly more high-profile games), the women players ended up receiving about the same total compensation as the men. But the women's rate of pay–the decisive factor in an Equal Pay Act case–was lower than that for the men. (WNT Mot. for S.J. at pp. 5-6.) If anything, the judge should have granted summary judgment for the women (although that might have been stretch, as some disputed facts would have remained for the jury to consider).
To work around this rate-of-pay issue, the district judge concluded that the WNT had bargained for a different pay structure than the men. As the judge saw things, the history of the negotiations for two Collective Bargaining Agreements (CBAs) demonstrates that
the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, [the WNT players] cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to play stmcture when they themselves rejected such a structure. This method of comparison not only fails to account for the choices made during collective bargaining, it also ignores the economic value of the "insurance" that WNT players receive under their CBA. (S.J. Order at p. 19)
But here again, to reach this conclusion, the district judge had to assume many factual questions would be resolved against the women and in favor of U.S. Soccer. In particular, as the women carefully detailed in their own summary judgment papers, U.S. soccer's own witnesses
testified that despite the WNTPA's equal pay demand, USSF never offered to pay the WNT at the same bonus rate as the MNT for friendlies, tournaments and the World Cup. It is thus impossible for the USSF to obtain summary judgment in its favor on the ground that the [women] never asked for equal pay to the MNT during collective bargaining. USSF's own witnesses admit just the opposite: USSF would not have agreed to equal pay "no matter what the [women's players' association] had offered as a compromise." Indeed, at his deposition, USSF former president, Sunil Gulati, admitted that he told the WNT players during negotiations that USSF's terms were the most he would give financially, and while he was willing to move money around to different forms of compensation, the WNT had to accept the overall value of the deal or there would be no deal at all. (WNT Opp. to S.J. at pp. 17-18)
Moreover, a step back to look at the big picture reveals the absurdity of concluding that the women somehow were "willing" to forego the kinds of bonuses the men had. Accordingly to a seemingly straightforward calculation, the the women would have made $66 million more if paid on the same structure as the men! The women had no reason to be "willing" to forego that staggering amount of additional compensation–even if they did receive some modest "insurance" at far lower levels of compensation. The WNT was the defending world champion during the negotiations–and were expected to be very strong contenders to win the 2019 Women's World Cup. They would have loved to have contracted for the same kinds of bonuses that the men were promised if they had achieved at that high international level.
Of course, to grant summary judgment, the district judge had to conclude that no reasonable jury could find that the women had gathered facts showing unequal pay. But the women clearly did have at least some facts showing unequal pay–specifically statements admitting unequal pay from U.S. Soccer itself! For example, the President of U.S. Soccer, Carlos Cordeiro, had admitted that the women were not paid equally and that changes needed to made to eliminate the discrimination:
Our women's teams should be respected and valued as much as our men's teams, but our female players have not been treated equally.… I'm a strong supporter of greater equality, diversity and inclusion throughout U.S. Soccer, and we clearly need to work toward equal pay for the national teams. I believe that where existing agreements are unfair, adjustments should be made immediately. To ensure equal pay going forward, we need to be open to new paradigms while recognizing the specific needs and desires of the WNT and MNT…. [W]e don't need to wait for [collective bargaining agreement] negotiations to make these changes; we can start now. It's the right thing to do. (WNT Statement of Undisputed Facts at p. 5).
The district judge recognized this damning admission, but refused to accept it at face value. Instead, the judge concluded that the fact that U.S. Soccer's President said "WNT players are paid less does not make it true …." But surely an admission from the employer that it paying unequal pay is some evidence of … well … unequal pay. A jury could quite reasonably rely on such a statement in finding for the women. Perhaps recognizing the difficulty with this position, the judge also pointed out that Cordeiro had later stated that, when he referenced working toward "equal pay," he meant "creating more opportunity for our women so they can play more competitive events that would drive more revenue and compensation" because "there was a lack of opportunity for the women where the men play four/five times as many competitive [i.e., non-friendly] matches as our women do … and [that] is at the heart of the issue." (S.J. Order at p. 20). But this spin on Cordeiro's admission is precisely the sort of thing that juries have to work through in an Equal Pay Act case. Deciding precisely what Cordeiro may or may not have meant is not what a district judge is entitled to do in ruling on a summary judgment motion.
The women had not only an admission from U.S. Soccer's President but also a statement from U.S. Soccer's outside counsel, who (according to the women) stated during the collective bargaining negotiations that "market realities are such that the women do not deserve equal pay." (WNT Statement of Undisputed Facts at p. 12.) This statement, too, would seem to preclude summary judgment on an equal pay case. But the district judge quickly pointed out that it was "disputed" whether U.S. Soccer's counsel had actually made this comment. Precisely what the women were arguing! It is disputed fact–and disputed facts are the very reason why a jury trial was necessary in this case.
At a jury trial on the "market realities" and other issues swirling around the case, the WNT would have fully presented its case. By its calculation, the WNT–the world champions–generated more revenue and earned a larger profit for U.S. Soccer than the MTN. (WNT Mot. for S.J. at 3). Perhaps these calculations are skewed. Perhaps they are unfair to the MNT, which suffered an unexpected downturn in revenues when it unexpectedly failed to qualify for the World Cup. But perhaps not. Questions such as these are precisely why juries decide these kinds of cases. The factual complexities have to be evaluated by twelve neutral observers, who hear all the witnesses and see all the evidence.
When I was a federal district court judge, I saw some equal pay and similar gender discrimination claims come before me. These cases inevitably presented complicated fact patterns that rarely lent themselves to resolution on a summary judgment motion. So too in this case. The facts are complex and disputed–and must be decided by a jury.
The district judge here did allow several of the WNT's claims to proceed to a jury trial, specifically some narrow claims about charter flights and hotel accommodations and medical and training support. But the main claims—i.e., the big dollar claims–are now out.
The WNT has already vowed to appeal, and they should. This ruling has a very high likelihood of being overturned on appeal. If one thing is clear about this case, it is that the WNT players have made reasonable claims of being paid unequally that a jury must decide.
Update: Because there has been some speculation about the net revenues generated by the WNT versus the MNT, it is important recognize that the women have produced a very detailed analysis concluding that during the relevant time period (Fiscal Year 2016 to Fiscal Year 2020), the WNT generated a net profit of $10,235,153 while the MNT generated a net loss of -$6,093,897. While these numbers may be disputed, that only underscores the need for a jury trial in this case.
Similarly, with regard to the $66 million loss figure mentioned in the post, it is more precisely $66,722,148—as reflected in a detailed economic analysis submitted by the women. Again, these figures can be disputed. But that is why a jury should make the final decision on such issues.