Defining the pay gaps, what’s at stake for both sides

The United States women’s national soccer team’s challenge for equal pay is ongoing off the field as the team prepares for the 2020 Tokyo Olympics on the pitch in less than five months.

Since filing a gender-discrimination lawsuit against the U.S. Soccer Federation on March 8, 2019, the USWNT has gone on to win a second straight World Cup and garner support from celebrities, politicians and athletes.

Could the team’s efforts be a blueprint for other women’s sports leagues? We break down everything you need to know about the lawsuit ahead of May 5, the pending date for when the case could go to trial in Los Angeles.

What is the USWNT challenging in its pay discrepancy suit?

The 28 players who are part of the suit allege that the USSF engages in “institutionalized gender discrimination” toward the team. The discrimination “has caused, contributed to, and perpetuated gender-based pay disparities” against the players in “nearly every aspect of their employment,” the lawsuit reads. The lawsuit was filed in U.S. District Court for the Central District of California under the Equal Pay Act and Title VII of the Civil Rights Act.

Since then, it has been a verbal back-and-forth between the federation and legal representatives for the team.

In July 2019, USSF president Carlos Cordeiro released an open letter, citing what he described as extensive analysis of 10 years of financial data. He said the data showed that from 2010 to 2018, the women’s players were paid $34.1 million in salary and game bonuses by U.S. Soccer, a comparative to $26.4 million given to the men during the same time period. The men’s and women’s teams operate with separate collective bargaining agreements and pay structures.

Representatives for the USWNT said the claim by USSF was “utterly false.”

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In November 2019, federal judge R. Gary Klausner of U.S. District Court for the Central District of California granted the USWNT’s motion to give its lawsuit class certification. The early win for the women meant the lawsuit could include players who appeared for the national team dating back to Feb. 4, 2015. U.S. Soccer had opposed the motion for certification.

The rhetoric from both sides has ramped up in recent weeks, as the trial is slated to start on May 5, less than three months before the 2020 Olympics in Tokyo. In February, the two sides filed very different motions in district court. Lawyers for the USWNT filed for partial summary judgment, seeking back pay of at least $66.7 million, in addition to punitive damages. USSF asked the court to dismiss the lawsuit “based on the actual facts in the record and the governing law.”

— Kelly Cohen

Where does the U.S. men’s team stand on this?

Last month, the U.S. men’s team issued a statement of support, saying that the USSF “has been working very hard to sell a false narrative to the public, and even to members of Congress.”

Last week, USWNT star winger Megan Rapinoe thanked the men’s team for its support and said she is “very confident of a positive outcome,” even if it won’t be soon. — Cohen

There are commonly asked questions around pay structures for the men’s and women’s teams. Here is what we know:

Do all USWNT and USMNT players get paid upon call-up?

• In a word, no, but like most things with the equal pay dispute, it’s complicated. Players on the U.S. men’s and women’s national teams are represented by separate unions, and thus, the structure of their respective CBAs is different. The men have been operating under the terms of an expired CBA since Jan. 1, 2019. The current deal for the women expires at the end of 2021.

• The women operate under what could best be described as a hybrid system. Seventeen players (dropping to 16 in 2021) are signed to full-time contracts with the USSF. Those signed players get paid whether or not they get called up for a game or training camp, even if they’re injured. These players also receive benefits such as parental leave. The remaining women’s players are called “Non-Contract Players,” and they get paid only when they are called up to the team.

• The players on the men’s team operate on a pay-for-play basis. They get paid only when they are called on to the team. If they get injured with their club teams and miss a national team game, they do not get paid.

How much is the USWNT paid? And how are players paid: per game, monthly, annually?

• For the women, there are various revenue streams. Contracted players have a base pay of $100,000 per year. There are also at least 22 players who are allocated to National Women’s Soccer League teams. Tier 1 players — of which there must be at least 11 – make an additional $67,500 per year, while the Tier 2 players make $62,500 per year. These players receive annual salary bumps of $2,500. The USSF, namely the USWNT manager, decides which players will receive Tier 1 or Tier 2 status. The women also have a variety of incentive-based bonuses written into their CBA to cover items such as win bonuses in friendlies, qualifying for the World Cup, winning the World Cup, and so on.

• Pay for Non-Contract USWNT Players is governed by seniority. A player making her eighth or more WNT camp appearance receives $4,000 per call-up. A player called in making less than her eighth appearance receives $3,500 per call-up. These players also participate in the various win bonuses.

• The men are paid in similar fashion to Non-Contract USWNT players, though their appearance fees and bonuses in most cases are considerably higher. For example, making a World Cup team will net a men’s player $68,750. A women’s player will make $37,500 for making the World Cup squad. A win by the USMNT against a team outside the top 25 in the FIFA rankings will result in each player getting a bonus of $9,375, and a loss will result in a payment of $5,000. For the women, a win against a team ranked outside the top eight gives each player $5,250, and they get nothing for a loss.

• How does this shake out in terms of total pay? It varies from year to year, based on each team’s respective World Cup cycle. The most recent filing for 2018 saw only USWNT players among the federation’s top-paid employees. But keep in mind that 2018 was a year in which the men were expected to play in the World Cup but didn’t because they failed to qualify for the first time since 1986. Had the team made the tournament, the pay of several men’s players would likely have far exceeded that of their female counterparts.

How is money from television deals and attendance factored in?

• Again, the respective CBAs handle these situations differently. For men’s games organized by the USSF, the union gets a cut ($1.50) of every ticket sold. The total is put in a pool and distributed among the players. There is no mention in the men’s CBA about television viewership.

• The women’s CBA states that the union receives $1.50 per paid ticket plus 7.5% of every ticket sold above 17,000. The union will also receive a bonus if a game is sold out. The women’s union receives a “viewership bonus” if the average viewership on a particular channel for USWNT games grows by at least 10% from the previous year. There is language in the CBA that says if the new men’s deal exceeds these numbers, the women will automatically have the same terms applied.

— Jeff Carlisle

How did the USWNT and USSF get to this point?

Suffice it to say, the current dispute has deep roots — in both a legal aspect, and a philosophical one.

Tension between members of the women’s national team and the federation is nothing new. Theirs has been both a wildly successful partnership and an uneasy relationship almost from the outset. What might soon be on display in a courtroom is merely the latest incarnation.

That partnership saw U.S. Soccer take on financial risk in staging the 1999 World Cup on a grand scale across the United States, correctly believing the women’s game and the U.S. team were up to the challenge, contrary to FIFA ambivalence. Yet this is also an uneasy relationship. Three years before that seminal tournament, a number of players protested when the federation initially offered unequal bonus structures for men and women participating in the 1996 Olympics.

As the first collective bargaining agreement negotiated by the then-new players union neared its end in 2004, USWNTPA counsel John Langel sent a letter to the U.S. Olympic Committee seeking compensation for what was described in great detail as U.S. Soccer’s continued lack of commitment to the women’s team. Among the litany of complaints: U.S. Soccer’s decision to effectively put the national team on mothballs in 2005, scheduling only a handful of friendlies and little dedicated training time.

Langel’s 2004 letter was among the documents recently submitted by attorneys for the players in the current suit in support of a motion for summary judgment in their favor.

While Megan Rapinoe praised the federation’s backing on the eve of last year’s Women’s World Cup final, saying, “compared to every other federation in the world, I don’t think it’s close,” she remains a plaintiff in the suit against U.S. Soccer. Her praise was included in a recent filing by the federation, albeit without any emphasis on the part where she said she would continue to nudge the federation toward the progress that still needs to be made.

How we got to the current moment is legally straightforward. After the USWNT won the 2015 World Cup — with their reach as great as it had ever been, after packing stadiums in Canada and breaking television viewership records at home — players and their union contended that there was no CBA in place. That would have allowed players the bargaining chip of striking in advance of the 2016 Rio Olympics, empowering them in negotiations for a new CBA. U.S. Soccer contended at the time that a four-year Memorandum of Understanding signed in 2013 in lieu of a new CBA bound players to the “no strike, no lockout” clause already in effect.

The federation sued the USWNTPA in February 2016, seeking a ruling on whether the existing agreement constituted a CBA. A federal court ruled in the federation’s favor in June of that year. But by that time, Carli Lloyd, Alex Morgan, Rapinoe, Becky Sauerbrunn and Hope Solo had already filed a complaint with the Equal Employment Opportunity Commission alleging wage discrimination.

The two sides appeared to find temporary peace with the new CBA signed in 2017. But when the five players received a right-to-sue letter from the EEOC early in 2019, with their original complaint neither resolved nor affected by the new CBA, 28 members of the national team player pool filed suit.

— Graham Hays

And that philosophical divide?

It’s been on display for decades. One side states women’s soccer is fundamentally distinct from men’s soccer.

This was set out in typically stark legal terms in part of U.S. Soccer’s recent motion for summary judgment. “Plaintiffs and the MNT players do not perform equal work requiring equal skill, effort and responsibility under similar working conditions,” the motion stated, using the criteria and language set out in the Equal Pay Act under which (in part) the players brought their suit.

Players have gradually earned increasing support from a federation that, as Rapinoe said, is more invested in the women’s game than any other federation in the world. Few dispute that. The present reality is a far cry from the likes of the $10 per diems of early years.

The divide is that U.S. Soccer contends the past is the appropriate comparison point: Things are better for members of the women’s team now than they were in the past, and they will continue to work with players to make them better still in the future. Full stop.

“Plaintiffs are not entitled to summary judgment on their [Equal Pay Act] claims because a reasonable juror could conclude that the job of MNT player requires materially different skill and more responsibility than Plaintiffs’ job does, while also taking place under materially different working conditions,” attorneys for U.S. Soccer said in a Monday filing. “Simply put, they are materially different jobs that cannot be compared under the EPA.”

The other side believes that is the root of the damage still being done.

“Hopefully, this is going to create a domino effect with not only other federations around the world in soccer but potentially other sports leagues,” Rapinoe told ESPN last year. “I think women can take it into any realm where there are men and women being paid. Maybe this can be a case people cite in their own cases against employers or whatever it may be to strengthen their case. So hopefully this has a lasting effect.”

— Hays

What is the precedent in a case such as this?

The U.S. women’s national soccer team isn’t the only one to fight with its federation for equality. In September, just two months after becoming the first Caribbean nation to qualify for the World Cup, Jamaica’s women’s soccer team — the Reggae Girlz — launched a “No Pay, No Play” campaign on social media and said it would not train or compete until its federation paid the players money they were owed. The team was also frustrated about its treatment, including less-than-ideal travel itineraries.

The Reggae Girlz have been fighting for equality since 2010, when the Jamaican Football Federation cut their funding. Bob Marley’s daughter, Cedella, led fundraising efforts when the team disbanded in 2014.

By the end of September 2019, the JFF said it finally paid the players, and the boycott did not happen. However, coach Hue Menzies stepped down in December due in part to his own pay dispute and said he was spending money out of pocket to support the team in the lead-up to the Women’s World Cup.

In November 2019, Australia’s women’s soccer team reached a landmark, four-year deal with Football Federation Australia that ensured the Matildas would be paid as much as their male counterparts. Previously, the men earned a greater share of revenues generated by the team and were paid more. The new deal also guaranteed equitable conditions for the Matildas, including business-class travel for international tournaments (something the men already had) and the same coaching and operational support.

In the United States, the women’s soccer team is often compared to its counterparts in hockey, who fought with their federation ahead of the 2017 IIHF World Championships. The American women threatened to boycott the tournament, citing stalled negotiations with USA Hockey over “fair wages and equitable support.”

The players and USA Hockey ended up agreeing to a landmark, four-year agreement just before the tournament, which ended the holdout and the chance that USA Hockey would put out a replacement squad for the tournament. The team’s annual compensation improved to roughly $70,000 per player, plus performance bonuses that could push incomes over six figures if the team wins the Olympics or world championships. Benefits such as maternity leave — something never previously offered to the women — were included in the new deal. USA Hockey also agreed to other player asks, such as establishing a committee to look into how the federation could improve its marketing, scheduling, public relations efforts and promotion of the women’s game, plus fundraising and other efforts for girls’ developmental teams.

As far as legal precedent, one case cited by the USSF’s lawyers in their motion for summary judgment to dismiss the suit is “Stanley v. University of Southern California.” In 1993, Marianne Stanley was the school’s head women’s basketball coach, and she sued the university under the Equal Protection Act and Title VII because she was paid less than her counterpart on the men’s team, George Raveling. She lost in both the District Court and the Ninth Circuit for the Court of Appeals. The arguments that the USSF is making echo the appellate court’s decision, namely that Raveling was under “greater pressure” from USC to promote his team and win because the men’s team generated greater attendance and “substantially more revenue” than the women’s team.

Without question, the argument is, as UCLA law professor Steven A. Bank said recently, “an unqualified loser in the court of public opinion.” Societal attitudes toward women’s sports have evolved since that decision. Yet the case history is there, and the USSF has long been arguing that the men’s team generates more revenue and better television ratings than the women’s team.

According to data provided by the USSF, the men have outdrawn the women every year in attendance from 2006 to 2018. Research by ESPN indicated that changed in 2019, both for overall average (28,002 for the women versus 21,776 for the men) and for games in the U.S. (25,122 versus 23,305). In terms of television ratings, although the women outdrew the men during World Cup years of 2011 and 2015, the men had better ratings in every other year between 2008 and 2018.

The USSF didn’t provide data for 2019, a year in which the American women won their fourth World Cup, but according to FIFA, the 2019 tournament was the most-watched tournament in its history, with more than one billion people tuning in across the globe. The final between the USWNT and the Netherlands was the most watched Women’s World Cup match ever, with[ an average live audience of 82.18 million — up by 56% on the 2015 final audience of 52.56 million. The men’s national team did not qualify for the 2018 World Cup held in Russia.

Since items such as media rights and sponsorship are bundled to include both teams, placing exact revenue numbers on each team isn’t as easy as it seems, yet the USSF is determined t[o make that argument, even if the optics are poor.[

— Kaplan and Carlisle[

What are U[SWNT players earning in the NWSL?

The NWSL made big im[provements to its salary and compensation packages ahead of the 2020 season. The minimum sa[lary is now $20,000 (up from $16,538 in 2019), and the maximum salary is $50,000 (up from $46,200). The overall salary cap is $650,000, a 19.33% increase from $421,500 in 2019.

The NWSL removed limits on a number of guaranteed contracts and introduced salary allocation, which allows each team to purchase up to $300,000 in allocation money from the league to pay players more than the maximum salary and exceed the salary cap.

This still leaves more to be desired. Sydney Leroux made headlines last month when she told Forbes that she paid more in childcare in 2019 than she made in salary from the Orlando Pride. “If you’re not on the national team, you’re sitting in the back seat,” Leroux said. “I think we need to make it important that it touches everybody. What we’re doing is only affecting certain people, and I think that that’s not good enough because we’re losing out on really good athletes because you can’t survive on an NWSL salary. People have different jobs. People’s parents are helping them, and that’s not OK. This isn’t a hobby[[. This is our livelihood.”

Consider that Leroux’s hus[band, Dom Dwyer, earned $1.32 million in base salary from Orlando City SC last year. In 2019, base s[[alaries in MLS ranged from $56,244.60 to $7.2 million for the highest-paid player (Zlatan Ibrahimo[vic).

— Kaplan[

Will t[[his actually make it to the courtroom?

The question [is always a good — though unanswerable — one in complicated cases. All indications are that it is he[aded to trial, and lawyers on both sides, even if they are in settlement talks, will be planning on a p[[arallel path to go to trial. But a settlement is always possible, especially in cases in which personal g[rievances and business operations, practices have the potential to be aired publicly.[

In the ab[[sence of what the women consider to be a fair offer — and both sides appear far apart on what that [consists of — this seems to be headed to trial. There is a little less than two months to go until a trial[ would start, however. If players believe the USSF will eventually come to them with improved terms, it could increase the chances of a potential settlement. The USSF has moved in the players’ dir[ection with its offer of equal appearance bonuses as the men for games the USSF controls, but that is more an issue for collective bargaining, and the union isn’t a party to the suit. Regardless, the two sides first have to agree to sit at the bargaining table, and that doesn’t appear to be happening any time soon.

— Carlisle