A Legally Dubious Summary Judgment Grant Against the U.S. Women's Soccer Team on Its Equal Pay Case

An appeal by the team stands a very good chance of success, as many disputed facts need to be assesed by a jury--including admissions of unequal pay made by U.S. Soccer.

|The Volokh Conspiracy |

Alex Morgan of the U.S. Women's National Soccer team in action during last summer's Women's World Cup.

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.

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  1. Thanks for the thorough analysis, it will be interesting to see how this case goes.

    1. This analysis ignores the fact that US Soccer doesn’t control the hugely differing amounts of money available from the Men’s and Women’s World Cups.

      So sure, if a separate outside organization was able to sell TV rights and tickets for the same amount for the Women’s team to play (and their success ignores the much smaller competitive pool – the Men’s tournament includes twice as many teams who qualify), then it would make sense for the women to make the same from that outside organization, but that’s simply not true. And it’s not true not based on anything US Soccer decided, but based on fan choices in relation to an entirely different organization.

      This whole lawsuit is wishful thinking about how some folks “want” things to be vs. reality of how they are and deserves to be dismissed.

      If the Women’s team players want the exact same deal as the Men’s team has, then they should just go try out for the Men’s team. Nothing is stopping them, unlike the reverse, which is where the only actual discrimination/limiting of opportunities based on sex is occurring by US Soccer. (And that’s okay discrimination, for the record.)

  2. “market realities are such that the women do not deserve equal pay.”

    What I don’t see here is percentage of sport income. In other words, what what was the total income of the men’s teams and of the women’s teams — and what percentage of that went to the players of the respective teams?

    They are not equal jobs because while any male player could compete on the female team, few (if any) of the female players could compete on the male team. (It’s the same issue we are seeing with biological males who became females competing on high school girl’s teams and winning championships.)

    After all, why do we need Title IX and separate teams in the first place? If the jobs were equal, then we’d only have ONE team that both men and women played on.

    So we go to comparative worth and I think the relative question is how much does each team bring in for their employers?

    1. That argument was pursued ad nauseam in Prof. Cassell’s March post. Let’s by all means go all through it again. Tiresome even by quarantine standards.

      1. Nowhere did he mention revenues — the source of pay.
        And reality is that if the women had the ability to be on the men’s team, they would be.

        Taxi drivers and bus drivers both operate vehicles, so should they be paid the same?

        1. Since these comments go to the revenues generated, I have updated the post. As you can see at the bottom of the post, according to the WNT they generated a profit of $10,235,153, while the MNT generated a loss of -$6,093,897.

          1. That is chump change. These women have their eyes on the BIG PRIZE—FIFA World Cup $$$$$$.

            1. Good point — If the women have a chance at that and the men don’t, then you have to calculate that into opportunity costs and hence salary.

              In other words, a good male player could theoretically play for another nation’s team, particularly players with dual citizenships, and hence the US would have to pay more to keep him here. Not unlike how a restaurant has to either pay non-tipped employees more or redistribute tips in order to be equitable.

          2. Now look at total revenues for the international leagues themselves. The only reason that our women’s team does so well is because of the complete lack of interest in pushing women’s soccer that the rest of the world has.

            1. Exactly, the WNT will always compete for the championship while MNT may never compete for a championship. The current men on the MNT don’t care about women getting money from the WC pot because they know they will never win the championship while the WNT will most likely win more championships. This is classic “ugly Americanism” at the global level and American liberal elite sense of entitlement on the national level.

          3. Always read the footnotes:
            1: Excludes revenue and expenses from the teams’ respective World Cups and World Cup qualifying matches and WNT Olympic qualifying matches.
            2: Excludes salaries paid to WNT players for playing for their NWSL teams through October 31, 2019.

            I assume there is no revenue from the Olympics, that’s just expenses. As the men aren’t eligible, this is an expense only for the female team. And excluding women’s salaries artificially increases the women’s revenue. Not sure what taking the World Cup stuff off the books does.

            Standard accounting rules are to use either whole dollar or to the penny — one OR the other, but not both. It’s poor form to use whole dollar for the men’s team while using to the penny for the women’s on the same form!

            And, with the exceptions I noted above, if M+F is the *total* profit, how are they still in business? If they lost $8.9M last year and $4.6M the year before that, they’ve either got really deep pockets or revenue sources that aren’t listed here, because $13.6M is real money…

            What, if anything, did the team present for numbers because the women’s numbers don’t add up. And we’re still not seeing gross revenues…

            1. We are discussing the Men’s National Team and the Women’s National team for Soccer. These aren’t normal professional sports teams. It’s paid for and operated by the government, not a private enterprise. That’s why they can lose millions of $ year after year.

              1. As near as I can tell from their financials, US Soccer is non-profit and private and doesn’t get any financial support from the feds. They’ve got assets to lose a few mill a year for a while but not perpetually.

              2. It’s paid for and operated by the government, not a private enterprise.

                Where did you get that delusion?

                The United States Soccer Federation (often called US Soccer) is a 501(c)(3) nonprofit organization. It is not a government agency, the government does not appoint its leaders, and if it gets any government funding, it’s not apparent from the financial statements.

    2. The flip side of this in higher education is Title IX Compliance and women’s sports not bringing in the revenue (Tickets & TV) that the high-interest (and expensive) men’s sports do. As you can achieve equity by adding female sports or by eliminating male sports, many colleges have simply eliminated male sports. Wrestling was often the first to go.

      The interesting one was male skiing because the male and female teams shared many of the expenses, i.e coaches, transportation and mountain access. Hence eliminating the male team nearly doubled the expenses of the female team, often making it nonviable….

    3. They are not equal jobs because while any male player could compete on the female team, few (if any) of the female players could compete on the male team.

      No, he can’t. He might have the technical abilities to do so, but he is not eligible to do so.

      1. If both his birth certificate and drivers license say’s he’s female?
        (You can get both of those changed in Massachusetts…)

    4. In the end, if they are worth as much as they think they are. They can simply threaten to walk. If as Prof Cassell’s side claims, their bosses are making bank off the girls and holding back gobs of money they deserve then they certainly wouldn’t mind releasing a bit more to avoid losing this entire racket.

      1. Exactly! It’s the same thing as the myth of women only being paid 78 cents of what women are paid — if that were true, every employer would fire all his male employees and hire the cheaper women….

  3. 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.

    There’s nothing “perverse” about saying the 2019 Triple-A National Champion Sacramento River Cats are not as good a team as the missed-their-playoffs Cleveland Indians. Rather, what would be “perverse” is trying to make the opposite argument.

    1. To approach it from a purely economic perspective (and there are surely other ways of looking at it), at the time that the lawyers for the U.S. Soccer Federation made this argument, they possessed two substantial revenue-generating assets: the back-to-back Women’s World Cup winning team and a men’s team that had failed to qualify for the Men’s World Cup in the last qualifying cycle. Denigrating the value of your Women’s World Cup championship team made no sense — which is probably part of the reason why President Carlos Cordeiro promptly apologized and resigned.

      1. When discussing how good a sports team is, there is absolutely no reason to approach it from a “purely economic perspective”. The profitability of a team has nothing to do with the performance of the players when playing their sport.

        It seems disingenuous, at best, to mix the concepts. Did the lawyers claim the Women’s team was less profitable? In that case, your argument works. Or did they compare the abilities of the players? In that case, your comment is completely off base.

        1. As noted in the post above, outside legal counsel for U.S. Soccer (Russell Sauer) is alleged to have stated during collective bargaining negotiations that “market realities are such that the women do not deserve equal pay.” The citation and other statements related to this alleged statement are collected in the WNT Statement of Undisputed Facts, linked above — particularly at page 12 and thereabout. That is why revenues are significant in the legal case.

          1. Of course the economics of the team is relevant to the case as a whole.

            However, YOU made the statement “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.”. THAT statement is what I am criticizing, and your attempt to deflect from your position rather than defend it is disappointing.

            The entry you quote has nothing to do with the quality of the players, which is the metric for ‘good’ you apply in your statement. Please, stop with your attempts to distract. Either correct your statement in the post, or defend it.

        2. If the women make more money for U.S. soccer, but your justification for paying them less is “women are worse at sports”, isn’t that just actual sexism? The women’s team is more valuable. It’s wrong for the lawyers to bring who would win were they in the same match into whether they were paid fairly.

          And U.S. soccer is inherently a government granted monopoly, so normal attacks against anti-discrimination don’t really apply.

          1. If the women make more money for U.S. soccer, but your justification for paying them less is “women are worse at sports”, isn’t that just actual sexism?

            First, the women aren’t getting paid less than the men. They’re getting paid more, both overall and per-game. So even if we took it as a given that the players for the team that makes more money should themselves make more money, they already do.

            Second, there are all sorts of cases where a minor league team (or a team in another sport) makes money when a top league team (or a team in another sport) loses money. That doesn’t change the fact that the top league (other sport) team is more valuable because the team has more potential revenue, and thus the players for the team are able to demand contracts that pay more (or, in this case, merely potentially more) because of this potential higher revenue.

            Third, the claim in this context wasn’t “women are worse at sports”, but rather “Team A and its players are worse than Team B and its players at the sport both teams play.” The Sacramento River Cats are not as good at baseball as the San Francisco Giants. If I justify paying the players of the River Cats less than the players for the Giants on the grounds that they’re worse ballplayers, that clearly isn’t sexist. Nor does it transmute into sexism if the team of worse ballplayers is composed of women.

      2. This is a poor analogy to use however.

        For example, in 2019, the Sacramento River Cats won the AAA Baseball Championship game. Meanwhile their major league counterpart (the San Francisco Giants) failed to even make the playoffs.

        This does not mean the River Cats are equally valuable to the Giants. The Giants have far higher revenue generation and generation possibilities, even if they didn’t make the playoffs.

      3. “why President Carlos Cordeiro promptly apologized and resigned.

        Larry Sommers did the same at Harvard — it doesn’t mean he was factually wrong…

  4. Sigh,

    This is a tired argument that the woman’s soccer team really shouldn’t win, on multiple fronts. Leaving alone the Union bargaining agreements the women signed, or the fact the actually did get higher salary per game than the men, or any of several other issue, the real issue is this.

    The women and men are not playing in the same league. They are playing in different leagues. The different leagues have very different revenues (and very different bonuses). It’s more akin to similar, but slightly different industries. Imagine instead of soccer, it’s a company that does sales for both ATVs and automobiles, with the sales force getting a bonus for the % of sales. Even if the ATV saleswomen do great, the ATV market just isn’t that big, so the bonus won’t be that big. By contrast, the automobile market is huge, so even a mediocre performance there will bring in a nice bonus. It’s essentially the same work (sales), but because the market is different, the bonuses are different.

    Because of this, in regards to the bonus structure, it really isn’t the “same work.” If you want to be especially crude about this, consider women’s soccer to be akin to AAA baseball, and men’s soccer to be like MLB. A mediocre MLB team (and its players) will make more money than even a championship AAA team.

    1. Part of my confusion is this ambiguous language:

      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.

      “Made” is not clear; is it pay or is it gate?
      Above all else, professionals sports is entertainment, and the only figure which matters is how much audiences pay to watch. From other ambiguous statements in this article, I believe those figures are pay, which tells us nothing about gate revenue, sponsors, advertisements, merchandise, etc.

      And the WNT negotiated their contract — they made their choice and thought it was the best they could get. Now they suffer from buyer’s remorse and want a redo. If things had worked out otherwise and they had gotten such a good deal that the USSF had buyer’s remorse, would the WNT have thought it proper to renegotiate retroactively?

      This is just another typical example of what happens when government interferes in markets. Now everybody is going to waste millions of dollars arguing over who gets to sic government against their opponents, instead of spending it enhancing their common sport in its quest for better media coverage and more audience revenue. Their squabbles will make that harder, because what network will want to deal with such petulant crybabies who are happy to use government to renegotiate contracts retroactively?

      1. who had alleged they were paid less than players on the men’s team (MNT) for equal work.

        The work isn’t “playing soccer”. It’s “bringing in millions through gate and TV advertising”.

    2. The goal of these women is to get money from the men’s World Cup pot. So they argue because tennis grand slams pay men and women the same the World Cup should pay women the same. With respect to just America there is a huge incentive to pay women the same as men because of how popular women’s soccer is in America. So it is in the American soccer industry’s interests to pay women the same as men. But the notion because Wimbledon does it one way is extremely dubious.

      So basically FIFA created a global phenomenon the World Cup and then decades later created the women’s tournament that allows American women to get huge endorsement deals playing soccer and now these women want even more. If I were FIFA I would just shut women’s World Cup down and let Nike and Gatorade and MLS pick up the tab.

      1. Basically, yes.

        Or, if they wanted to be absolutely fair, they could allow women to compete for spots in the men’s league. That would be fair. And perhaps men could compete for the spots in the women’s league.

    3. Prof. Cassell’s point in this article isn’t even that you’re wrong necessarily, it’s that it’s debatable and therefore a jury should have determined this.

      1. He’s cheerleading way more than he would if he thought it was just a technical point.

      2. This issue is, the point the judge made was, that the critical discrimination isn’t debatable.

        The Equal pay act basically says “No employer shall discriminate between employees on the basis of sex by paying wages to employes at a rate than which he pays wages to employees of the opposite sex.”

        In order for the women to succeed, they need to prove that they were actually paid less than the men. And they weren’t. They were actually paid MORE then the men.

        1. This is addressed in the post. If the women were paid the same as the men for the exact same games (i.e., paid at the same rate as the men) they would have been paid much more.

          The fact that they got paid more is a result of them having better results despite an unfair difference in the rate of pay. To make an pretty clear analogy: if a law firm had a bonus structure that explicitly gave men bigger bonuses for exceeding their billable hours targets than women, the fact that women on average worked more hours and therefore got paid more wouldn’t be a very good defense against a wage discrimination claim.

          1. The defence to this is that the women received salary and other benefits that must be added to the monetary amount to determine the rate of pay. Clearly business allows individuals to sign salary vs commission contracts without violating labour laws.

  5. Women’s sports as less popular and frankly a lot more boring to watch. The level of athleticism is very apparent and that translates out to less competition between players/teams and not an extremely exciting product to watch.

    Doesn’t surprise me women’s sports don’t generate nearly as much income and thus can’t pay women higher salaries. But, the limits of a financial ledger have never cared to diversity bean counters and liberals.

    1. Women’s sports as less popular and frankly a lot more boring to watch.

      Sometimes that’s true. Sometimes not. At the international level, women’s soccer is a lot more fun to watch than men’s soccer, precisely because the level of athleticism is lower. Men’s soccer is boring because the players collectively are too good, such that flukes determine the outcome of games.

      The level of athleticism is very apparent and that translates out to less competition between players/teams and not an extremely exciting product to watch.

      (Pure athleticism does not determine how popular a sport is; nobody thinks college basketball or football players are as a class NBA/NFL caliber, but the former are nevertheless extremely popular to watch.)

      1. I also just find soccer to be a boring sport. Not sure why it is so popular. The only upside to it is that when a match is over you know when it is going to be over. Too many American sports (football and baseball) seem to drag on forever. A match could be anywhere from 2 to 5 hours. In soccer you might get an extra 2-3 minutes at the end of each period and that is it. But, to me, that is the only good thing about it.

      2. Just to add some perspective, there are 256 regular season NFL TV broadcasts in a season, and in 2019 they totaled 4.3 billion viewers.
        In 2019, there were 366 regular season NCAA football broadcasts, that totaled 660 million viewers.
        There are 32 NFL teams, and 669 NCAA football teams.

        While NCAA football may be massively popular, it is still a small fraction of the NFL’s popularity.

      3. If that were true then women’s soccer internationally wouldn’t lag behind men’s soccer in revenues by over an order of magnitude, but whatever delusion makes your argument I guess.

        1. If what were true? I would hope it would be obvious that describing something as “more fun” is a subjective statement and therefore not falsifiable.

    2. Did you happen to see the 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.

      Does that change your position?

      1. The WNT is a private company and can generate a profit if that is their goal. Probably paying the players less enabled it to run a profit. And having revenue greater than expenses does not necessarily mean anything. I would need to see their balance sheet and know their long term financial picture to judge better.

        My main point was that mens and womens sports are not equally situated. To try to say they are is just plan dishonest. Womens sports are just not as popular as those played by men.

        If they had an executive on tape saying, “I’m going to pay these players less because they are women…” then perhaps there is something there. But trying to just do a straight line comparison isn’t going to work. It is really apples and oranges.

        1. The WNT is not a private company. Nor is the USSF.
          Many of the arguments against the USWNT revolve around whether the women’s team is as popular as the men’s team and whether it brings in as much revenue. Since the TV rights tend to be sold in bundles these issues are hard to tease apart. However one notes that the US women’s WC final had higher ratings than the prior years men’s WC final. Of course the USMNT wasn’t in that final (or indeed in the WC at all). But the point is that the USWNT is a sizable TV ratings draw.

      2. do you realize profits aren’t revenue? But let us ignore that, and instead give the women they contract they demand now subtract the $40 million + from that profit level and where are you? Jesus Christ you lefties are ignoramuses when it comes to maintaining ongoing concerns

  6. I support these women because they want to steal brown foreign men’s hard earned money. I will always support white Americans over brown foreigners.

    #MAGA

    1. Thanks for giving us the typically racist and xenophobic views of American progressives, Sebastian.

  7. 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.

    My high school team won the state championship. They must be as good as the USMNT.

    Did the women’s team even try to qualify for the men’s World Cup? Or to make the men’s team? I assume women are allowed to play on the men’s team if they are good enough.

    1. Your assumption is completely wrong.

      1. I don’t know about soccer, but it’s true of most sports. Men’s leagues at the top levels are actually just leagues for the best players.

  8. 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

    You don’t “forego” compensation if no one would ever offer to pay that amount to you, because you are not worth that much. Even if the men’s team didn’t exist, there is not a scenario imaginable under which the women would have the bargaining power to demand money like that. The only reason the women’s team has the bargaining power it does is because women’s soccer free rides off the popularity of the men’s World Cup, and because it threatens extortionate public relations litigation like this. If women’s soccer had to exist on its own, they would be making peanuts, if anything.

    1. You know, most of the famous current pop music singers are female. So should the RIAA be required to pay male singers, who produce less revenue, the same amount of money?

      1. I guarantee you the top female soccer players make more in endorsements than the top American male soccer players. This is nothing more than a heist going after the men’s World Cup $$$$$. There should be heist music playing around these women.

        1. You know, if they want true pay equity, all of their endorsement money should go to the league and then be equally distributed to the men’s and women’s teams.

          I don’t know how the equal pay act deals with it, but if a good chunk of your personal income comes through endorsements, you kinda gotta consider that in terms of equity. It’s like a salesman paid on commission, on paper he’s making less than the bookkeeper, but in reality he’s doing much better.

          1. But then they would have to go after Alex Morgan and Mia Hamm instead of the men that run US Soccer. But the reality is the American female soccer stars wouldn’t get endorsements without their teammates and tournaments to play in.

            1. That’s the argument for revenue sharing among big league teams. The NY and avocado-land teams earn most by far, and some is shared with small-town teams who provide the league opponents for them to trod on.

      2. Your analogy would make more sense if pop singers were employees of the RIAA. (Or anyone.)

  9. So taking the last two paragraphs, US Soccer should have paid the USWNT $66 mil more, and LOST $56 mil as a result. Sounds reasonable. /s

    1. Unfortunately, U.S. Soccer is now looking at very sizable damage claims because of the differential treatment. This could have easily been avoided in a variety of ways. Most notably, U.S. Soccer has a long history of treating the women’s team unfairly. See link to Grant Wahl’s podcast in my earlier post. Had U.S. Soccer been a proactive partner with the WNT over the last two decades, the current dispute likely could have been avoided. With regard to the last bargaining cycle, the WNT players made it very clear that they were seeking “equal pay” — although precisely what that looks like could be debated and negotiated. But U.S. Soccer choose not to make a realistic nod in that direction – and now, quite predictably, its unfortunate decision is being challenged in court.

      1. Must the WNT work with US Soccer? Would a softball league be forced to work with MLB? It seems the original sin was Nike and Gatorade and Mia Hamm contracting with US Soccer to begin with. Next time if you think you have a billion dollar idea be a little more careful with who you partner up with.

        1. Must the WNT work with US Soccer?
          Can there even *be* a WNT without a corresponding Men’s team?
          Remember that much of the world has a very different attitude toward women’s sports, and that’s particularly true in Hispanic cultures.

          1. So WNT needs to work with US Soccer because the other national teams are propped up by the men’s team or national government? There must be some major cognitive dissonance for American progressives to have to face the fact that America is far ahead of every other country with respect to at least gender equality in athletics.

          2. It’s evidently also true of so-called internet “doctors.”

        2. US Soccer is a government monopoly.

      2. They were going for equality — sounds like they got it. Earned nearly the exact amount per game as the men. No wonder the judge said no reasonable juror would find otherwise.

      3. U.S. Soccer is now looking at very sizable damage claims because of the differential treatment.

        According to the women’s figures, US Soccer has lost money over the past four years, throw in significant damage awards and they’ll just say “bleep it” and shut down. And then where will the women be??? And they won’t be getting their endorsements, either…

        As an aside, I wouldn’t be surprised to see a lot of sports take a major hit because of the Wuhan Virus. Baseball’s already lost a month of revenue…

        1. It is unrealistic to suggest that there is a strong probability (or any probability) of the USSF just shutting down

      4. Unfortunately, U.S. Soccer is now looking at very sizable damage claims because of the differential treatment.

        Really? Because I thought U.S. Soccer just won the suit, for the most part.

  10. Love a libertarian blog where authors beg for the government to prevent people from making and following their own contracts.

    1. This legal analysis disagrees with my ideology, therefore it’s wrong and should not have been published.

  11. This can only be resolved by true equality.
    Eliminate all artificial distinction such as “men’s” or “women’s” and just have soccer. Or basketball, or tennis, or swimming, or whatever.
    Besides. we have legal precedence that there is no actual difference between what used to be male and what used to be female.

    1. Women’s soccer and men’s soccer are entirely different. People go to women’s soccer to see women’s chests under wet T-shirts. They go to men’s soccer to fantasize about being in better shape than they are.

      One is porn, the other is fantasy. It’s hardly surprising that they are paid differently.

      1. With that perspective, you likely also think that people read your posts for informed opinions.

        You’d be wrong there too.

      2. Pro beach vollyball tries to profit by wearing bikinis or something close. I guess revenue would have to flow to the parallel men’s teams.

      3. “One is porn,”

        If women’s soccer were porn, the women would be getting paid more than the men.

        Porn is another industry where market realities dictate that different genders get paid differently. And, like soccer, even though the workers are doing fundamentally the same thing, the work is not substantially similar.

        Sometimes the market to watch women do certain things is fundamentally different than the market to watch men do the same thing.

    2. Sorry, no can do. I’m going to need some excuse for watching Alex Morgan running around in shorts.

    3. Maybe if the women just told the league they now self identify as men, the league would just say “oh ok well that entitles you to more pay…” Problem solved!

  12. This is the “libertarian” hill you want to die on? That judges need to come on and tell soccer clubs how much to pay men and women? And that the tax payer has to pay for this crap?

    1. He didn’t say that. He said that a summary judgement was wrong, legally speaking. Is an analyst not libertarian if they say “income taxation is legal” or “the government can use eminent domain to take your property”?

      Also Volokh even says the blog is “mostly libertarian”.

      1. He’s gone well beyond pointing out a legal case to cheerleading the side asking for government to overrule a voluntarily entered contract. And he definitely helps to lower the libertarian quotient of the blog.
        As for Cassell’s case, the judge was well aware of the factual differences but ruled that even accepting the plaintiff’s facts, no reasonable juror would find in their favor.

  13. Soccer sucks.

  14. If women pro soccer players and men pro soccer players ‘do the same job’ let’s put them on the field against each other and prove it.

    The reason good women’s teams make less (or in this case only slightly more) than sucky men’s teams is the same reason that a good profitable little league team that consistently fills the tip jar at the local chucky cheese makes less than the worst money losing MLB team.There is just simply far far less overall interest and cash floating around (internationally, nationally its one niche sport vs another) and it filters down. No evil sexist conspiracy needed

    Now Rapinoe might make a few headlines at CNN bashing the President but that isn’t necessarily enough publicity to turn things around and Women’s soccer has been obscure both before and after the championship. If they don’t like it, better to argue entirely by the financial angle rather than some BS equality angle. Or better yet get rid of gendered teams all together, except those that can fully support themselves independently, and just have one team based entirely on merit. No more men’s teams carrying womens teams. No more women’s teams carrying mens team. I’m sure they’d like that.

    1. The Men’s World Cup in 2018 (generally spoken of as the World Cup) generated over $6 billion in revenue. The Women’s World Cup in 2019 generated a little over $130 million. The World Cup essentially brings in all the revenue that FIFA uses to put on all of the other competitions, including the Women’s World Cup.

      It’s like college sports. The football team brings in all the revenue for the athletics department, including all of the less popular sports men and women play.

  15. “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.”

    What’s the evidence for this? You would need to know the state of mind of the bargaining representatives at the time of negotiations. You’re engaging in an ex post analysis of a party’s ex ante subjective mindset. Horseshit.

    1. Labor theory of value, that seems to be the only evidence he has or wants.

  16. If equal pay claims have such bizarre and arcane fact patterns, it seems the law itself needs to be amended.

  17. A) The womens players have a much higher % of salaries in relation to gross revenue and net income before salaries .

    B) the top womens players would rank at best somewhere between the 100th and 150th in the mens ranks. the majority of the womens players woulnt crack the top 200 in the mens ranks. Salries in mens professional sports would enjoy the league minimums.

    In summary, the womens team is being paid significantly higher that comparable players on the mens team.

    1. B) the top womens players would rank at best somewhere between the 100th and 150th in the mens ranks. the majority of the womens players woulnt crack the top 200 in the mens ranks. Salries in mens professional sports would enjoy the league minimums.
      >>>>>>>>>>>>>>>>>>>>>

      Actually, I suspect it would be much much lower than that. As in a female National Team caliber player might be more around the league of a reasonably physically fit teenage male off the street with familiarity with the game.

      Here is an amusing related story.
      https://www.cbssports.com/soccer/news/a-dallas-fc-under-15-boys-squad-beat-the-u-s-womens-national-team-in-a-scrimmage/

      1. Although the Women’s Team losing to some 14 year old high school boys is an amusing story, it isn’t actually a fair comparison – it happens occasionally to Women’s teams around the world. Japan, Australia, and the US at the least.

        The more interesting part is why the US Women’s National Team was scrimmaging the under-15 Boys team in the first place: The boys have about the same (or slightly better) physical capabilities as the women. The women are significantly more experienced and skilled, which is why they almost always win. But the point is to have the women play against opponents that are physically at least as good – something it is difficult for a national team to do in a sport where there are so few players (around 200-250 in US right now).

    2. I don’t think that is the proper way to view it when sports like boxing and UFC have weight classes. There is clearly a market for women’s sports in America…I just don’t think women should piggyback on the closest men’s league unless the men’s league believes subsidizing the women’s counterpart is good for the bottom line.

      Women’s soccer needs to come up with their own business model to make professional women’s soccer work. And right now I just saw none other than Rapinoe in a commercial for seltzer. So clearly there is a way to make women’s soccer work but Rapinoe and Morgan might have to to take a pay cut to pay their teammates so they can have a team to play on.

    3. The second point is completely irrelevant to whether the compensation is “equal” or “fair”.

  18. The so-called offense argument is the winning one. The Equal Pay Act requires equal pay where the work performed “requires equal skill, effort, and responsibility . . . .” But, like it or not, the skills required to play on the women’s national team are not the same as those required to play on the men’s. The level of play is significantly higher in the men’s league, and that is without doubt, and any argument to the contrary is untenable. Further, success is relative. Thus, any claim that the women are more successful and should therefore be paid more (or the same) clearly fails because the quality of the competition is not the same. Such a claim would only be viable if a women who was playing on the men’s team was paid less than the men, otherwise the comparison is apples and oranges.

  19. If it turns out that the equal pay act requires that U.S. Soccer pay players on women’s soccer leagues and men’s soccer leagues equally, does that mean that they make more money by splitting into U.S. Men’s soccer and U.S. Women’s soccer?

  20. “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.”

    It doesn’t matter, for purposes of “market realities,” if the women earn more revenue than the men.

    What matters is whether or not U.S. Soccer still gets whatever revenue the men earn if they pay the men less.

    If the equal pay act prohibits acting on these market realities, that means that the equal pay act makes it expensive for the same entity to run both men’s and women’s teams.

  21. they never withdrew their offensive argument.

    I don’t know why Paul thinks it’s a good idea to lard up his argument with that bullshit emotional appeal to the lay audience. Does he want to credibly talk about the propriety of the summary judgment decision or not? He knows the law talks about skill and ability. And he knows it’s perfectly unremarkable — and perfectly appropriate as a legal matter — for a defendant to question whether those factors are the same between the groups. So for those of you who may not be lawyers, know this: Paul isn’t exactly playing things straight with you.

    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).

    This is largely laughable. Paul has identified some areas where the decision could be weak. He does have a good faith argument for why granting the men’s motion was improper. But the notion that there’s any non-frivolous path for granting summary judgment in favor of the women is just crazy. The “offensive” skill/ability argument alone is sufficient to defeat summary judgment in favor of the women — a reasonable jury could find that there was a skill/ability differential. A jury might not find that. A jury wouldn’t be compelled to find that. But a reasonable jury could find that, which means summary judgment in favor of the women would be improper.

  22. “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.”

    A scrimmage between the two teams would settle the question of who’s better…

  23. My initial lay-person reaction after reading the opinion was that it was correct and this blog post leads me to question my initial reaction. Yes, there are a lot of disputed “facts” here. However, isn’t the actual question a legal one?

    I’m trying to envision what the jury instructions would say in a case like this as that would determine which facts are relevant. What is the legal standard that the jury will likely be told to apply?

  24. I don’t know the organizational structure of U.S. Soccer.

    However, if the men’s and women’s teams were to “split” so there’s no shared organizational structure doesn’t this whole issue just go away? They could of course collaborate when it was mutually beneficial – just as the United Way can collaborate with the Red Cross to coordinate fund raising or relief efforts.

    Surely one organization that happens to only hire female players can’t be required to pay their players the same (not less, not more) than a completely independent organization that happens to only hire male players.

    Another obvious solution to this is to remove the “men’s” appellation from the men’s sport, call it “Unlimited Soccer”, and allow any gender to try out and compete. Perhaps some women would pursue a career in “Unlimited Soccer” and take slots away from some men, perhaps not. This would eliminate the issue of “same work” as everyone in unlimited would be on equal footing regardless of gender. Perhaps other “limited” leagues would spring up – some might only accept women, some might only accept players over 80 years old, some might only accept one legged players, some might only accept players with a BMI of over 40, some might only accept blind players.

  25. Hi Judge Cassell,

    Thank you for writing this post. I read the opinion yesterday and had searched around the internet for an analysis with more depth than the news stories.

    I do have a question for you. For the Equal Pay Act, how should we choose the proper unit for rate of pay?

    Judge Klausner found that the WNT were paid more than the men because they made more money overall and more money per game played. Your argument is that the WNT’s rate of pay is lower than the MNT’s because the WNT had to win more games to get paid a similar amount — they were paid less per win. It seems that the disagreement boils down to choosing the proper unit for rate of pay: is it $ per game played or $ per game won?

    More generally, if an employer compensates its employees using multiple measures for rate of pay, does it violate the EPA if it discriminates on any one measure? Or does it only violate the EPA if it discriminates on the most comprehensive measure?

    The term “wage” in the EPA “generally includes all payments made to [or on behalf of] an employee as remuneration for employment.” 29 CFR § 1620.10. The term “wage rate” in the EPA “refers to the standard or measure by which an employee’s wage is determined and is considered to encompass all rates of wages whether calculated on a time, commission, piece, job incentive, profit sharing, bonus, or other basis.” 29 CFR §1620.12(a).

    This situation is complicated because the WNT gets many different kinds of benefits which are measured with many different rates. For example, they get win bonuses ($/win), game bonuses ($/game), “salaries” for a certain number of guaranteed players ($/year), and so on. All of those qualify as “wage rates” in the EPA. The MNT has its own corresponding scheme which is different and also multi-faceted.

    When employees are paid according to multiple different wage rates, what constitutes an EPA violation? Does the employer have to pay men and women the same for every single different rate of pay? Or only the one most comprehensive one?

    My intuition is that it would not make sense for the employer to have to pay men and women the same for every single different rate of pay. The WNT and MNT have very different situations and they bargained for different deals. The WNT get paid more on some rates and less on others, as do the men. If every rate of pay had to be equalized, then USSF would often be violating the EPA with respect to both teams, unless it managed to negotiate the exact same CBA with both. By looking only at overall pay and pay per game, I think Judge Klausner’s opinion implicitly adopts this view.

    I’d welcome your thoughts and please tell me if/how this is wrong! Thank you!

    1. Very well asked question.

  26. Reading more about men’s World Cup bonuses makes me more certain than ever this lawsuit was step 1 in a two step process. Step 1 get access to MNT chump change WC qualifying bonus and step 2 go after the men’s World Cup championship purse knowing full well America’s WNT will be favored to win every WC going forward and America’s MNT has no chance to ever win a WC…in fact failing to even qualify for the WC in 2018 undermined the WNT’s lawsuit.

  27. “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. ”

    Which team do you think would win in a head-to-head match?

    1. The sucky MNT failing to qualify for the World Cup is what undermined the WNT’s case because the men didn’t get a WC bonus. But even if they got a WC bonus they wouldn’t have made it very far in the WC so the WNT’s WC bonus most likely would still have been bigger than the MNT’s bonus.

    2. Head to head? The USMT could score at will. It could be 20 to 30 – 0 depending on how hard the men tried. If Spain, Germany, Brazil, Argentina etc were the opponents – I doubt the USWT would have more than 5 minutes of possession. The only reason to discuss this is to demonstrate that they are in different leagues and thus perform different jobs.

  28. Evidence against pay discrimination based on Gender:
    1. USWT were paid more in total
    2. USWT were paid more per game
    3. USWT rejected to negotiate a higher bonus structure without giving up guaranteed salary and benefit structure
    4. USWT CBA contains many more guaranteed salary and benefits than the men and in this regard the men are discriminated against
    5. USWT was paid more per game per revenue dollar generated
    5. The USWT received 100% of FIFA WC bonus but the men’s CBA only provided a fraction of FIFA bonus to the USMT

    Clearly the evidence showed that the USSF negotiated in good faith and offered the USWT different ways of being remunerated. As the USSF pointed out the USWT wanted all of the benefit but none of the risk. Further the USSF has offered the USWT 9 million to settle the suit out of court. Not surprisingly this is similar to the amount the USMT would be paid if they won the Men’s WC.

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