The U.S. women's national team made its closing written argument on Friday in a bid to overturn the dismissal of its equal pay lawsuit against the U.S. Soccer Federation, calling the lower court's original decision "flatly wrong."
The USWNT's primary argument stayed the same: that the women were paid at a lower rate than their male counterparts. But in this latest go-round, the USWNT's lawyers have emphasized recent events, including a ruling in a similar court case, to back up their appeal. Friday's deadline for written responses was the final stage before the appeal can move on to oral arguments.
The USWNT's equal pay lawsuit was dismissed in May 2020 as the judge accepted U.S. Soccer's argument that that the women had actually been paid more in total compensation than their male counterparts. In their appeal filed in July, the USWNT's lawyers argued that was only true because the women outperformed the men, all while the women's performance bonuses were still smaller.
Now, in their final brief filed Friday in the 9th Circuit Court of Appeals, the USWNT says an appeal granted earlier this month in another case demonstrates why the judge was wrong to dismiss their case in the first place.
In that case, a woman named Tracy Sempowich sued for wage discrimination because, although she had been paid the same commission rate as her male colleagues, her base pay was lower. A judge dismissed her case, citing her higher total compensation than her colleagues, but the appeals court overturned it. She had been paid more because she made more sales, the court said, but the rate of pay was lower and "an employer violates the Equal Pay Act if it pays female employees at a rate less than that of similarly situated male employees."
According to the USWNT's legal team, this proves that comparing total compensation between the USWNT and USMNT is legally insufficient to determine whether discrimination happened. "Every court of appeals that has considered a total-compensation approach to the Equal Pay Act has rejected it," the USWNT brief says.
The USWNT brief adds: "Here, because the district court used a total-compensation standard, it completely ignored the fact that the players' pay depends on performance. The only way the women could achieve the same overall pay as the men was by performing much better than them. That is not equal pay for equal work."
U.S. Soccer, anticipating the USWNT side would raise the Sempowich case, issued a letter to the court last week arguing that it doesn't apply to this lawsuit because the 4th Circuit was not asked to evaluate differing compensation structures akin to the U.S. national teams. Bonuses aside, the men are paid on a per-camp basis, whereas the women are paid on a hybrid structure where some players are paid based on call-ups but others are paid salaries.
"The Fourth Circuit did not [and had no reason to] consider highly complex, negotiated pay packages of the sort at issue here, i.e., where no single wage component differs between men and women while all else remains the same," U.S. Soccer said in Thursday's letter.
The USWNT pushed back against the notion that the different structures are relevant in its brief on Friday, however. The USWNT's brief says U.S. Soccer wants the court to decide that "if women's and men's pay structures have some differences, a court should assume the differences offset each other and compare total compensation rather than rates of pay."
"That made-up rule is wrong," the brief adds. "A court does not just throw up its hands and refuse to compare rates when there are some differences in pay structures."
Again, the USWNT's lawyers argue that although the women negotiated for a different pay structure than the men, that does not mean they even wanted the pay structure they received. The women asked for equal pay, the brief says, but U.S. Soccer refused.
The USWNT brief also cites recent events to argue that U.S. Soccer cannot "claim it is impossible to provide equal World Cup bonuses." That's because U.S. Soccer has announced it wants to equalize prize money going forward, and as recently as last week touted a joint meeting between the federation and both national teams to discuss it. In September, U.S. Soccer president Cindy Parlow Cone issued a letter in which she called on the teams to negotiate a joint proposal "that equalizes World Cup prize money between the USMNT and USWNT."
The USWNT's brief says U.S. Soccer is trying "to make this case seem as complicated as possible" in lieu of providing legal justification for why the judge's original dismissal was right. "The federation wants to talk about anything other than the district court's decision," the USWNT brief says.
The judge hearing the initial lawsuit, R. Gary Klausner, dismissed the USWNT's case based in part on U.S. Soccer's analysis, which showed the USMNT was paid $212,639 per game and the USWNT was paid $220,747 in the period covered by the lawsuit. But the USWNT challenged that logic Friday, calling it "happenstance that the women ended up earning slightly more per game than the men."
"That only happened because the women won an unprecedented number of games, including back-to-back World Cups," the USWNT brief states. "In fact, when they filed the complaint in this lawsuit, the women had earned less total compensation per game than the men over the class period. Then, while the lawsuit was pending, the women won the World Cup, pushing their average per-game pay above the men's."
Analysis has shown the per-game average of pay for each team is highly dependent on World Cup bonuses, and if the men had qualified for the 2018 World Cup but lost every game, their per-game average pay would've exceeded the women. The USWNT raises similar analysis: if they hadn't won the World Cup in 2019, their per-game average pay would be lower than the USMNT.
Up next, the case is expected to proceed with oral arguments, and the court has indicated those could start as soon as March.