The latest skirmish in the equal pay lawsuit between players on the U.S. women's national team and the U.S. Soccer Federation took place late Thursday, with both sides filing motions in U.S. District Court.
Lawyers for the women's national team players filed a motion for partial summary judgement in which it is seeking back pay of $66.7 million plus punitive damages, while the USSF filed a motion to have the suit dismissed entirely.
The players' filing reads: "The undisputed facts demonstrate that the post hoc justifications offered by USSF for paying WNT players less than MNT players for the same work are based not on actual facts that USSF relied upon when making compensation decisions, but on gender stereotyping -- such as the assertion by former USSF President Sunil Gulati that male soccer players have more "speed" and "strength" -- that the Equal Pay Act and Title VII were designed to eliminate as a basis for wage discrimination."
The lawsuit was first filed last March, with 28 players from the U.S. women's national team alleging that the USSF engaged in "institutionalized gender discrimination" toward the team. The lawsuit was filed under the Equal Pay Act and Title VII of the Civil Rights Act.
"U.S. Soccer is aware of the public narrative surrounding this lawsuit, but the undisputed facts tell a much different story, and the Court sits to render judgment based on the actual facts in the record and the governing law," the USSF's filing read. "On those grounds, the Court should grant summary judgment for U.S. Soccer and dismiss this lawsuit in its entirety."
The USSF's filing centers on the fact that the men's and women's teams are represented by separate unions and thus have negotiated separate Collective Bargaining Agreements (CBA) containing different terms, some of which were asked for by the Women's National Team Players Association (WNTPA).
The women's CBA includes six-figure salaries paid to USWNT players independent of whether they actually play, including guaranteed salary continuation during periods of injury; free medical insurance; paid child care assistance; paid pregnancy and parental leave; severance benefits and more.
"At the moment, the Women's National Team players are paid differently because they specifically asked for, and negotiated, a completely different contract than the Men's National Team, despite being offered, and rejecting, a similar pay-to-play agreement during the past negotiations," the USSF said in its statement. "Their preference was a contract that provides significant additional benefits that the Men's National Team does not have."
Additionally, the USSF stated that it considers the duties performed by players on the men's team and the women's team as being different and that "the law does not guarantee identical pay to men and women who perform different work in different jobs."
That said, the USSF filing points out that between the beginning of 2015 (the year encompassing the start of the Title VII class period) and the end of 2019, U.S. Soccer paid the WNT players and their union more than $37 million. The corresponding figure for the MNT is just north of $21 million.
The filing for the USWNT players counters that under the Equal Pay Act (EPA), the players cannot give up their right for equal pay through CBA negotiations.
"The text of the EPA itself, as well as Supreme Court case law, firmly establish that collective bargaining agreements do not provide a defense to EPA (or Title VII) claims," the players' filing says.
As to the assertion that the women's players rejected a pay-to-play agreement, Molly Levinson, a spokesperson for the players added, "In the most recent CBA negotiation, USSF repeatedly said that equal pay was not an option regardless of pay structure. USSF proposed a 'pay to play structure' with less pay across the board. In every instance for a friendly or competitive match, the women players were offered less pay than their male counterparts. This is the very definition of gender discrimination, and of course the players rejected it."
The players' filing also states that it is not the total renumeration that is at issue, but the rate of pay for friendlies and bonuses. Nor should the salaries the women receive for playing in the National Women's Soccer League, which is subsidized by the USSF, be considered in determining if the women are being paid fairly.
"The Equal Pay Act does not require a woman to work two jobs to receive what a man can earn for working one," the filing said.
The players' filing also attacked the assertion that the men's program has generated more revenue than the women's program. Since revenue streams like media rights and sponsorship are inclusive of both the men's and women's programs, separate breakdowns of revenue become more complicated.
The players' filing said that the USSF hasn't "come forward with any evidence sufficient to meet its burden of proving a justification based on revenue or profit generation, or any other non-gender-based justification, for its wage discrimination. To the contrary, USSF's records show that during the class period (June 11, 2015, forward) the WNT has generated more revenue and has earned a larger profit for USSF than the MNT."