UPDATE: On July 7, 2019, the U.S. Women's National team won the World Cup, which is the second consecutive and fourth time overall that the USWNT has won the international tournament. Congratulations to the USWNT!
The 2019 FIFA Women’s World Cup is in full swing. The defending champions—the United States Women’s National Team (more commonly referred to as the USWNT)—opened their tournament play with a record breaking 13-0 win over Thailand last Tuesday, and a solid 3-0 win over Chile on Sunday. Although the USWNT has made recent headlines as a favorite to win the tournament (along with France, Germany, and England), they have also been in the press in recent months for their leadership in the fight for pay equity.
Soccer has long been a battleground for women’s rights. At the USWNT’s inception in 1985, the United States Soccer Federation (U.S. Soccer or USSF) paid female players $10 a day and provided few resources and abysmal playing conditions. The first FIFA Women’s World Cup wasn’t held until 1991, and even then, FIFA elected to call the competition the “First World Championship for Women’s Football for the M&M’s Cup” for fear that including women would negatively affect perceptions of the caliber of soccer played at the World Cup.
Despite winning that first FIFA Women’s World Cup tournament and two more since, along with four Olympic gold medals (wins the Men’s National Team (USMNT) have never come close to achieving in modern soccer), the USWNT has traditionally been treated less favorably than the USMNT team in terms of pay and playing conditions.
For example, in 1995, a group of nine high profile players (including the likes of Mia Hamm and Julie Foudy) refused to sign their contracts until they were given bonuses for medaling in tournaments like their male counterparts. U.S. Soccer initially responded by locking them out (essentially preventing them from playing), until the two sides settled at the negotiation table. Ultimately, the women secured benefits like better pay, bonuses, and injury and pregnancy protections.
The current USWNT is following in the footsteps of their predecessors both on and off the field in their fight for another World Cup title as well as their fight against gender inequities in their sport.
After winning their third World Cup in 2015, the players were compensated much less favorably than their male counterparts (e.g., only making money off of their wins via their bonus structure, and not from U.S. Soccer’s use of their likeness in advertising and merchandise as the men do). Additionally, U.S. Soccer’s own reports in 2016 showed that the USWNT had made more revenue than the USMNT and they predicted that this trend would continue. On March 8, 2019 (International Women’s day), the entire USWNT sued U.S. Soccer in federal court alleging disparate pay despite substantially similar jobs, seeking to certify a class of all women on the squad since 2015.
U.S. Soccer is expected to defend against these claims by citing an existing collective bargaining agreement (CBA) that both sides agreed to and ratified in 2017. USWNT, in turn, is expected to rebut this defense by maintaining that the claims extend beyond the CBA and that inequities that predated the CBA contributed to the inequities written into it. This will be an interesting case that will focus on whether the men’s and women’s teams are similarly situated.
Establishing that the teams are similarly situated in this case will be complicated for a variety of reasons. Most case law in sports up until this point has focused on differential treatment between coaches of different sexes, which resulted in outcomes determining that one cannot pay a women’s team coach less than a men’s team coach unless the demands are different and legitimate. However, these cases are hard to apply in this context.
In an attempt to establish if the teams are similarly situated, the courts will likely have to consider tricky questions, including some of the following:
The answers to these questions are not clear cut. For example, the USMNT has to travel to various places in the Americas and play 16 games over two years to qualify for the FIFA Men’s World Cup. The USWNT has to play 5 games in a single two week tournament. It will be hard to establish which is more difficult, and this is just one example—differences are not limited to qualifying for the World Cup.
DCI will report on any further developments. If you are interested in learning more about the pay equity services that DCI has to offer, click here to contact us!
By Alexander Hsu, M.A., HR Analyst at DCI Consulting Group
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