May 5, 2020 / 12:44 AM / a month ago

A sliver of good news for women in pro soccer players’ equal pay loss

(Reuters) - The women who play on the U.S. national soccer team took a tough loss on Friday in their gender discrimination suit against the U.S. Soccer Federation. U.S. District Judge Gary Klausner of Los Angeles granted summary judgment to the federation on the women’s equal pay claims, holding that Alex Morgan, Carli Lloyd, Megan Rapinoe and their teammates failed to prove that they’re paid at a lower rate than the men on the national men’s team.

Judge Klausner found, in a nutshell, that plain old math doomed the women’s claims. During the time period covered by the women’s class action, he said, female players played 111 games and earned $24.5 million in total compensation, averaging $220,747 per game. Players on the men’s team played 87 games and earned $18.5 million, an average of $212,639 per game. The judge had previously held (2019 WL 7166978), as I’ve written, that it would be “absurd” to deny women soccer players the right to proceed as a class if they had to work harder than their male counterparts to earn the same pay, citing precedent rejecting employers’ arguments that women earned equal pay by working longer hours. But that’s not what the evidence showed in this case, Judge Klausner said. Players on the women’s team didn’t out-earn the men just because they played dozens more games. The women earned more per game, he said, so the soccer federation could not be liable for wage discrimination under the Equal Pay Act.

The women told Reuters on Friday that they intend to appeal. Their lawyers at Winston & Strawn had argued that the judge should consider the disparity for bonus pay awarded to male and female players who participate in the World Cup and other tournaments. They also argued that the women players would have earned more money had they played under the terms of the men’s collective bargaining agreement. Judge Klausner held, however, that the women negotiated fiercely for collective bargaining protections that were not in the men’s pay-for-play contract, such as a guaranteed minimum annual salary and severance pay.

But I think working women can still find a reason to be a little heartened by Judge Klausner’s ruling. The soccer federation, as you probably recall, was lambasted in March for arguing in summary judgment briefing that women players didn’t deserve the same pay as men because they weren’t playing the same game. Men were stronger and faster, the federation asserted, and faced much tougher competition than women players – and the men’s soccer team bore more responsibility for promoting the sport in the U.S. than the women’s team. However legally sound those assertions might have been, they were a public relations disaster. The federation replaced the Seyfarth Shaw lawyers who had written the summary judgment briefs with a team from Latham & Watkins. And after apologizing for the language in the briefs and calling for better treatment of the women’s team, the federation’s president, Carlos Cordeiro, resigned.

Judge Klausner did not even deign to consider the federation’s assertion that female pro soccer players don’t deserve the same pay as men. The judge outlined what the women were required to prove under the Equal Pay Act – that they performed the same work as men, under the same conditions, but were paid less – but analyzed only the third element of the test. I don’t think that’s an accident. Obviously, there’s no precedential value to the judge ignoring the federation’s disastrous equal work gambit. But I doubt you’re going to see many more employment defense lawyers make an argument that women don’t deserve the same pay as men who can run faster or lift heavier weights, considering that the federation’s assertion accomplished nothing in court and cost the soccer leagues president – and lawyers – their jobs.

It’s also notable that Judge Klausner’s decision recounted in considerable detail the negotiations that led to the women soccer players’ collective bargaining agreement. The women’s representatives began with the proposition that female players were entitled, under law, to “the same pay per game compensation” as the men received in their collective bargaining agreement. The women also, however, wanted to allocate risk differently than the men’s team. As Judge Klausner described it, the men’s contract was strictly pay-for-play: If men were cut from the team or the team failed to qualify for the World Cup, players suffered the consequences. The women, on the other hand, bargained over the course of more than a year of intense negotiations for a guaranteed minimum salary and severance.

In retrospect, according to the women, team members would have been better off if they had played under the terms of the men’s agreement. (The federation argued that the men’s team, which was much less successful than the women’s team over the time at issue in the litigation, would have made more money had its members worked under the women’s contract.) But their representatives didn’t know that during negotiations.

Ultimately, the judge found that all compensation should be considered in evaluating the pay rate for men and women, not just the money each contract provided for playing in particular games and tournaments. I understand the women’s argument that focusing on all compensation, rather than bonus pay per game, is akin to considering other factors, such as overtime wages or sales commissions, in evaluating pay rates – the same methodology that Judge Klausner rejected in his class certification decision. But I think Judge Klausner made a reasonable decision to use the metric of total pay per game as the appropriate pay rate for evaluating the women’s claims of unequal pay.

This judge previously made clear his belief that women should not have to work harder and be more successful than men doing the same job to earn the same money. In this decision, he disregarded arguments that women must be as strong and fast as men to hear the same pay, and recognized that women workers may not have the same priorities as their male counterparts. That’s not all bad news.

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