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USWNT Lawsuit

A deeper look at the USWNT lawsuit against US Soccer

As everyone knows, the USWNT has filed a lawsuit against US Soccer in a fight for equal pay. ASN's John Halloran is a veteran of covering the women's national team and he broke down the legal arguments at hand.
BY John Halloran Posted
March 14, 2019
8:05 AM
FOR THE second major tournament in a row, players on the United States women's national team look set to head into competition in the midst of a fight over equal pay.

Last Friday, on International Women’s Day, 28 American players filed suit in federal court alleging that the United States Soccer Federation paid them less money for equal work and denied them equal playing, training, and travel conditions compared to players on the United States men’s national team.

The suit continues a fight started ahead of the 2016 Summer Olympics, which began with five players filing a charge of discrimination with the Equal Employment Opportunity Commission. Last month, the commission granted the players a “right to sue.”

The pay issue is, at best, complicated. For years, the U.S. women have operated under a separate system than the men, working under yearly contracts that guarantee a certain base pay for national team duties and club play within the National Women’s Soccer League. The men are paid only for services rendered, based on call-ups and match bonuses.

In an appearance on the Today Show on Monday, Megan Rapinoe was asked if she would be willing to give up the guaranteed contract for equal pay. Rapinoe responded, “I think it’s okay that the compensation structures are a little bit different” and argued that the differences in season length between the NWSL and Major League Soccer make that a necessity.

According to attorney Neil Blackmon, who also writes about American soccer for The Yanks Are Coming, Rapinoe’s attorneys may not agree, at least looking at the complaint.

“The complaint specifically alleges gender discrimination on the basis of play, regardless of contract structure,” said Blackmon. “It advances the argument that while the magnitude of pay disparity depends based on method of calculation and context of data, USWNT players have been paid less than male counterparts on the U.S. men's national team. In certain situations, the complaint contends, USWNT players earn just 38% of what USMNT players earn.”

The women’s contracts—believed to be worth around $165,000/year—provide the players with some level of financial stability and protection against injury in ways that the men’s contracts do not, while also benefitting the NWSL by subsidizing the salaries of the top players in the league.

Beyond the different structure of the men’s and women’s contracts—which make it nearly impossible for a straight comparison—many believe the difference in pay comes down to revenue, something the complaint addresses.

Specifically citing fiscal year 2016 (which ran from April 2015 - March 2016), the suit argues that the women’s team pulled in more revenue than the men during this time period. That number, however, conveniently includes revenue the women earned during their title-winning World Cup run in 2015 while excluding revenue from the year before or after in which the men competed in the 2014 World Cup and 2016 Copa America.

The simple fact that the men’s and women’s World Cup cycles are offset, as well as the fact that the full women’s team competes in the Olympics while the men send a U-23 team, further complicates the revenue question. Likewise, a look at attendance at home matches also doesn’t provide any clear answers.

Last year, the women significantly outpaced the men in attendance at home friendlies, bringing in 221,678 fans compared to 169,211 for the men. However, this aggregate figure is attributable to the fact that the women played six more home friendlies last year when compared to the men. When attendance averages are compared, the women drew only about 70% of the fans attending each men’s game.

In total, the women did more work for the federation last year, playing a total of 20 games and spending extended periods in several training camps, a fact that may ultimately bolster their argument for more pay. The men—in part because of their failure to qualify for the 2018 World Cup—played only 11 matches last in 2018.

This disparity, even in non-World Cup years is not uncommon. With the NWSL season running shorter than most men’s leagues, and the fact that the women’s contracts are with the federation—not their club sides—the women typically spend more time in national team camps and play more international matches. The complaint specifically cites the time period between 2015 and 2018 in which the women played in 19 more matches than the men’s side.

The suit also points out the different nature of the win bonuses paid to the men and women. Through the end of last year, the men were paid bonuses of $17,625 for wins against teams in the top 10, while the women’s most recent collective bargaining agreement offers bonuses of $8,500 against top teams.

Attendance at men’s home matches tend to be heavily dependent on the opponent. Last year, the team drew an average of 10,979 fans for games against Bosnia, Paraguay, and Bolivia, but an average of 37,105 fans for games against Brazil, Mexico, and Colombia. Attendance for home matches on the women’s side remain much more consistent, regardless of the opponent.

The women are, of course, also much more likely to beat a top opponent than the significantly weaker men’s side, but arguing that they should be paid less for being a better team may prove a difficult and unseemly argument for the federation in court.

Some have pointed out that U.S. Soccer is a non-profit organization and, therefore, should not discriminate in pay even if there is a revenue disparity. However, American Soccer Now consulted with several experts in labor law (including ASN contributor and UCLA law professor Steven Bank) who said this is more of a public relations argument rather than one that would withstand legal scrutiny.

The issue of World Cup bonuses is also addressed in the suit, as it points out the large difference between the men’s 2014 bonus of $5.4 million for making it to the Round of 16 and the women’s bonus of $1.7 million for winning the entire tournament. However, part of this disparity is surely due to the massive differences in the bonuses FIFA provides to the federations. In 2018, FIFA paid $400 million in men’s World Cup bonuses. This summer, they will pay $30 million in bonuses for the women’s World Cup. That distinction is important, because the US Women would need to win the argument that US Soccer—not market forces—are a substantial cause of that discrepancy to win.

In regards to the issues with playing and travel conditions, there are several points of disagreement. The suit renews a long-standing complaint against matches on artificial turf, something the women have dealt with far more often than the men. Cited in the filing, the women played 21% of their home matches on turf between 2014 and 2017, compared to 2% for the men. However, the newest collective bargaining agreement for the women—which came into effect in 2017—gave the players more input into this heading forward, and the women’s team didn’t play a single match on turf in 2018.

The new women’s CBA also equalized per diems, but the complaint alleges that travel conditions have remained unequal with the men’s side taking 17 chartered flights in 2017 and zero for the women over that same time period. (Following the original publication of this article, a source within U.S. Soccer told ASN that the majority of the men's flights during this period were either for World Cup qualifying abroad, or paid by CONCACAF during the 2017 Gold Cup. Furthermore, the source said that the women took seven chartered flights in 2018, compared to six for the men's team.)

The final piece of the suit involves a claim of unequal marketing and investment between the two teams. In an interview on Good Morning America on Monday, Alex Morgan, echoing the complaint, dismissed the pay-revenue argument by arguing that the federation’s lack of investment through all levels of the women’s game has depressed the women’s ability to earn revenue.

Similarly, the claim alleges that the federation has allocated less resources to promoting the women’s games which has diminished the women’s compensation in the form of shared ticket revenues. The suit also argues that the former president of Soccer United Marketing—the organization which USSF uses for promoting games—has acknowledged this disparity.

The suit further alleges that the federation sets ticket prices lower for the women’s games. Ironically, fans of the men’s side have frequently complained about high ticket prices for men’s matches and some have even blamed these prices for depressed attendance at those games.

Some of the federation’s marketing strategies has also likely spilled into merchandise revenue. After Monday’s World Cup kit promotion, U.S. Soccer told fans that the women’s jersey—with three stars above the crest to commemorate the team’s World Cup wins in 1991, 1999, and 2015—would not be available at this time in men’s sizes. As a result, how much this affects the federation’s ability to accurately assess how much merchandise is sold to fans of the men’s or women’s team will forever remain unknown.

Barring an unforeseen break in the long-standing fight between U.S. Soccer and the women’s players, it seems probable that the team will head into the 2019 World Cup with this suit ongoing. In 2016, the women’s send-off matches in Chicago and Kansas City were dominated by discussions of equal pay.

How much that contributed—or didn’t—to the team’s quarterfinal failure in Brazil is unknown, but the players will certainly be asked about the suit over and over again through the next few months leading up to this summer’s tournament, and no doubt, in France itself.

John D. Halloran is an American Soccer Now columnist. Follow him on Twitter.

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