By: Sam Escher
On March 31, 2016, Carli Loyd, Becky Sauerbrunn, Alex Morgan, Megan Rapinoe, and Hope Solo from the United States Women’s National Soccer Team (USWNT) filed a federal complaint against the United States Soccer Federation (USSF) to the Equal Employment Opportunity Commission (EEOC).[1] The players alleged waged discrimination compared to their male counterparts.[2]
The EEOC will now investigate the complaint in the same way that a prosecutor investigates a crime.[3] The EEOC enforces federal laws that prohibit discrimination in the workplace based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.[4] If the EEOC finds that wage discrimination occurred, it could do multiple things. For example, the EEOC could try and settle the claim.[5] If unsuccessful in trying to settle, the EEOC can file a lawsuit on behalf of the players, protecting both the players themselves and the public at large from such wage discrimination.[6] The EEOC does not, however, file lawsuits in all cases where it finds discrimination.[7]
If the EEOC ultimately decides to file a lawsuit, it will most likely file it based on the Equal Pay Act. Section 206(d)(1) of the Equal Pay Act provides:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . .[8]
Under the Equal Pay Act, the standard that a plaintiff must meet in proving that he or she received less pay for performing substantially similar work is strict.[9] If the plaintiff meets the strict standard, the burden then falls to the defendant to establish one of the four affirmative defenses provided in the statute.[10] The employees of opposite sexes do not have to have held identical jobs, but the jobs must have been substantially equal.[11] The plaintiff, furthermore, does not have to prove that the defendant had a discriminatory intent.[12]
In light of the Equal Pay Act, could the USWNT players succeed in their claim? It would be easy for the players to show that they performed substantially similar work: both the men and women play soccer. However, whether they can show wage discrepancy is another issue.
Despite winning the FIFA Women’s World Cup three times and the Olympic gold medal four times, feats that the men’s team have never accomplished, the USWNT is seemingly underpaid.[13] According to the New York Daily News, a player for the women’s team was paid $15,000 for making the World Cup squad in 2015, while a player for the men’s team will receive $76,000 for making the World Cup squad in 2018.[14] Furthermore, the women’s team received approximately $345,000 for qualifying for the 2015 World Cup, while the men’s team will potentially receive $2.5 million for qualifying for the 2018 World Cup.[15] For winning the 2015 FIFA Women’s World Cup, the USWNT got approximately $1.8 million, while the men’s team would potentially get $9.3 million for winning the 2018 FIFA Men’s World Cup.[16]
The pay differences also seem to exist even though the two teams seem to bring in the same amount of revenue. In the last four years, the men’s team brought in $60.2 million while the women’s team brought in $51.2 million.[17] When the women’s team played in the 2015 World Cup final, it was the second most watched soccer game in U.S. television history.[18]
In response to the complaint and publicity, the USSF recently released financial data seemingly showing that the players’ allegations are inaccurate.[19] According to the USSF, of the top 25 paid players in the past four years, 14 were women.[20] Furthermore, the average compensation difference is 2.2%; women made on average $695,269 over the four years while men made $710,775.[21]
Whether Carli Loyd, Becky Sauerbrunn, Alex Morgan, Megan Rapinoe, and Hope Solo will succeed in their complaint is uncertain. Regardless, that they brought the complaint at all is progress for equal wages. Women across all sports seemingly are underpaid compared to their male counterparts,[22] and this complaint brings that disparity to light.
[1] Matt Bonesteel, Five U.S. Women’s Soccer Players File Wage Discrimination Complaint, Wash. Post (Mar. 31, 2016), https://www.washingtonpost.com/news/early-lead/wp/2016/03/31/five-u-s-womens-soccer-players-file-wage-discrimination-complaint/.
[2] Id.
[3] Id.
[4] About the EEOC, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc/index.cfm (last visited Apr. 21, 2016).
[5] Id.
[6] Id.
[7] Id.
[8] Equal Pay Act of 1963 § 6, 29 U.S.C. § 206(d)(1) (2012).
[9] Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992).
[10] Id.
[11] Id. at 1533.
[12] Id.
[13] Bonesteel, supra note 1.
[14] @sdshick, Twitter (Mar. 30, 2016, 8:35 AM), https://twitter.com/sdshick?ref_src=twsrc%5Etfw.
[15] Id.
[16] Id.
[17] @GrantWahl, Twitter (Mar. 31, 2016, 5:51 AM), https://twitter.com/GrantWahl/status/715521790882267136?ref_src=twsrc%5Etfw.
[18] Bonesteel, supra note 1.
[19] Melissa Isaacson, U.S. Soccer Federation Says USWNT Earns Only 2.2 Percent Less Than Men, espnW (Apr. 21, 2016), https://espn.go.com/espnw/sports/article/15277241/us-soccer-federation-says-uswnt-earns-only-22-percent-less-men.
[20] Id.
[21] Id.
[22] Jena McGregor, The Gap in Prize Money for Men and Women Across Sports, Wash. Post (July 9, 2015), https://www.washingtonpost.com/news/on-leadership/wp/2015/07/09/the-gap-in-prize-money-for-men-and-women-across-major-world-sports/.