Last week, the United States Soccer Federation announced that the United States Women’s National Team Players Association and the United States National Soccer Team Players Association have agreed to terms of historic collective bargaining agreements (CBAs) that achieve equal pay between the United States Women’s National Team (USWNT) and United States Men’s National Team (USMNT).
The announcement immediately prompted dozens of media outlets to cheer the long-fought-for agreement, which was a result of the settlement of nearly eight years of vigorous litigation. And we, too, cheer the success of the USWNT and their counsel in finally reaching equal footing with their male counterparts. The agreement itself and the years-long litigation process serve as an important reminder of the power and functionality of the Equal Pay Act of 1963, as well as its shortcomings. The very public nature of the USWNT equal pay litigation process makes it an excellent vehicle to explain the history of and potential claims under the Equal Pay Act to potential litigants.
Equal Pay Act of 1963: History and Recent Attempts to Amend
The Equal Pay Act of 1963 (“EPA”) amended the Fair Labor Standards Act of 1938 to abolish wage disparity based on sex. It provides that an employer may not pay lower wages to employees of one sex than it pays to employees of another sex when those employees are within the same establishment performing equal work at jobs that require equal skill, effort, and responsibility, and that are performed under similar working conditions. There is no employer intent requirement, which means that the employee does not have to demonstrate that the employer had an intention to pay disparate wages based on sex. It is enough to demonstrate that a pay disparity exists between sexes.
Once an employee demonstrates that the EPA protections may apply to her, employers may employ any of four affirmative defenses: the employer may attempt to demonstrate that wages are actually set pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) any other factor other than sex. Parallel claims can be brought under Title VII of the Civil Rights Act of 1964, and the same defenses apply.
Since 1963, the EPA and Title VII have been amended several times with important implications for employees. The Equal Pay Act was amended in 1972 to expand protections to include white-collar executive, professional, and administrative jobs, which were exempted under the original law. In 2009, the Lilly Ledbetter Fair Pay Act was enacted, amending the Civil Rights Act and other discrimination statutes to provide that the statute of limitations for wage discrimination claims restarts every time an unequal paycheck is issued. (That was already the rule under the EPA.)
There have been several unsuccessful attempts to amend the Equal Pay Act further. The Paycheck Fairness Act was first introduced in 1997 and has been reintroduced many times, most recently in 2021. If passed, the Paycheck Fairness Act would revise the remedies, enforcement scheme, and exceptions to the EPA. Most crucially, perhaps, the Paycheck Fairness Act would limit an employer’s defense that a pay differential is based on “any other factor other than sex” to require instead that an employer demonstrate that the pay differential is based on bona fide job-related factors. See H.R.7, 117th Congress (2021-2022). The Act passed the House of Representatives on April 15, 2021, but has not progressed further.
Nearly Sixty Years Later: Sex-Based Wage Gap Remains
Despite nearly sixty years of EPA protections, the sex-based wage gap remains. The United States Census Bureau reported recently that national median earnings for full-time, year-round civilians was $54,544 for men compared to $43,394 for women. This wage gap is present both within and across occupations.
In 2020, women earned approximately 84 cents to every dollar earned by men; it would take an extra 42 days of work for women to earn what men did in 2020. The wage gap is even more pronounced for women of color: in 2020, Latinas were typically paid just 57 cents for every dollar paid to white, non-Hispanic men; Black women were typically paid just 64 cents for every dollar paid to white, non-Hispanic men; and Asian women (which, in this study, did not include Native Hawaiian and Pacific Islander women, who tend to be among the women with lower earnings in the Asian American and Pacific Islander community) were typically paid 98 cents for every dollar paid to white, non-Hispanic men. Data from 2019 indicate that Native American women were typically paid just 60 cents for every dollar paid to white, non-Hispanic men.
Despite decades of litigation brought by the government and employees seeking equal pay under the Equal Pay Act the sex-based wage gap remains.
Equal Pay in Sports
The U.S. Women’s National Team’s recent success in finally achieving pay parity with their male counterparts is a monumental achievement. It is also a culmination of the concerted efforts of hundreds of athletes participating in activism, public pressure, and litigation over a period of decades.
For example: Billie Jean King, one of the most celebrated tennis players in history, dominated the world of tennis for more than 20 years. Her efforts turned women’s tennis into a major professional sport. King was outraged by the disparity between men’s and women’s prizes at major tournaments, and she spent decades campaigning tirelessly for parity for women in sports, including advocating for the passage of Title IX (prohibiting sex discrimination in any education program receiving federal financial assistance). In 1973, she beat Bobby Riggs (self-proclaimed male chauvinist who had boasted that women were inferior) at tennis in the “Battle of the Sexes,” a match witnessed by over 50 million viewers worldwide. Soon after King’s victory, the U.S. Open began awarding equal prizes to men and women.
There are far too many examples like this where women tirelessly advocate for equal pay in sports and only appear to be granted parity once they demonstrate that they far outperform their male counterparts. The USWNT success is only the latest in a long line of these examples.
USWNT Equal Pay Litigation
In the FIFA (Federation Internationale de Football Association) World Cup’s more than 90 years of contests, the U.S. men’s team has never won. Meanwhile, the USWNT has taken the title four times since 1991 (the year of their cup’s inception), including the last two in 2019 and 2015. The USWNT have also won four Olympic championships. Further, the women’s team has frequently played more games and spent more time in camp each year than the men’s team, meaning the women work more and still get paid less. In spite of decades of global exceptionalism in the face of the mediocrity of the men’s team’s results, the USWNT has been consistently paid less than USMNT.
This argument – that the women outperform the men and therefore are even more deserving of equal pay – is a strong one, particularly in the court of public opinion. But, legally, it does not matter whether the women outperform the men: they need only demonstrate that they perform equal work for less pay. They have done so.
The USWNT equal pay dispute stretches back to 2016 when five women players (Alex Morgan, Hope Solo, Carli Lloyd, Megan Rapinoe, and Becky Sauerbrunn) filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) accusing the U.S. Soccer Federation of systematically paying women players less than their male counterparts in violation of Title VII and the Equal Pay Act. This suit was followed by a second in 2019 filed by all 28 players on the U.S. Women’s National Soccer Team seeking nearly $67 million for Title VII and Equal Pay Act claims.
Years of bitter litigation ensued. At one point, counsel for the U.S. Soccer Federation, Seyfarth Shaw, argued that the women’s claims must fail because their work is not equal to the work of the men’s national team, claiming “It is indisputable science.” Following the public outcry over this remark, Seyfarth Shaw withdrew from representation and the Federation’s former president Carlos Cordeiro stepped down. The role of public opinion in this years-long litigation should not be underemphasized: the USWNT players and their fans rallied around the women’s case and media regularly reported on developments.
Unfortunately for the USWNT, District Judge R. Gary Klausner dismissed much of the suit in May 2020 when he found on summary judgment that the women players made more in total compensation than their male counterparts over the relevant period. However, this ruling ignored the reality that the women players were not paid at an equal rate, which is what the law requires, and that they consistently received lower bonuses for winning games than their male counterparts, and had to consistently outperform their male counterparts in order to earn roughly as much as they did.
The USWNT players appealed to the Ninth Circuit. The U.S. men’s team union, the U.S. National Soccer Team Players Association, backed the USWNT as amici in the litigation, and it is important to acknowledge the value of the men’s team’s support.
USWNT Settlement and Collective Bargaining Agreement
Just weeks before argument in the appeal was scheduled, the parties reached a settlement pending approval of a new collective bargaining agreement. $22 million of the $24 million settlement will go to the players behind the suit, and $2 million will go into a fund for USWNT players’ post-career goals and charitable efforts.
Last week, the parties agreed on the new CBA: the landmark deal runs through 2028 and equalizes World Cup prize money across the USWNT and USMNT from FIFA, which had been a big sticking point in negotiations. Beginning in the 2022 and 2023 World Cups, the prize money won by the two U.S. teams will be pooled and (after U.S. Soccer Federation claims its 10 percent) split between them equally.
Beyond the World Cup, which is only played every four years, the USWNT and USMNT will be paid at the same rate for game appearances and tournament victories. The agreement also addresses equalizing game bonuses and new commercial revenue-sharing agreements.
This agreement is monumental given the years of athletes’ and litigants’ advocacy pushing for equal pay for women in sports, but it is also monumental as a demonstration of the power of collective bargaining when backed by strong legal arguments for parity, the weight of public opinion and outcry, the support of affected parties (the USMNT), the backing of the EEOC, and persistent and zealous advocacy in litigation.
Equal Pay Act in 2022
In 2022, the sex pay gap persists. But the Equal Pay Act and Title VII provide important and powerful avenues for employees to seek equal pay, as demonstrated by the USWNT’s recent and very public success.
Employees who suspect that they are being paid less than their counterparts of a different sex should consult an attorney to see if they may have a legal claim.