US Soccer asks 9th Circuit to uphold ruling against players

New York — The U.S. Soccer Federation has urged the 9th U.S. Circuit Court of Appeals to uphold a lower court’s decision to throw out the wage discrimination portion of a lawsuit filed by members of the women’s national team, arguing the law doesn't require the federation to pay the players "tens of millions of dollars in phantom revenue it never received.”

In a 59-page brief filed Wednesday with the appellate court in San Francisco, the USSF said U.S. District Judge R. Gary Klausner in Los Angeles correctly granted a summary judgment to the federation on the pay claim in May 2020. The judge ruled the women rejected a pay-to-play structure similar to the one in the men’s agreement with U.S. Soccer and accepted greater base salaries and benefits than the men. He allowed their allegation of discriminatory working conditions to go to trial, and the sides reached a settlement on that portion.

The women asked the 9th Circuit to overrule the trial court’s ruling and put their wage claim back on track. A three-judge panel is likely to hear oral arguments late this year or in early 2022.

The women's team players "deliberately negotiated for a CBA that prioritized guaranteed salaries and substantial benefits over higher contingent bonuses,” the federation's lawyers wrote. “Plaintiffs cannot now, with the benefit of hindsight, pursue ‘equal pay’ claims based on a different pay structure they explicitly rejected. The District Court agreed. This is not a factual dispute. It is not a battle of the experts. It is a fundamental disagreement about what equal pay means under the law.”

The USSF recently said it has offered identical contracts to both unions, which are separate and have no obligation under federal labor law to agree to similar terms. The federation said the two unions had declined to negotiate a single agreement.

Items currently in the women’s contract, such as pay for players in the National Women’s Soccer League, maternity and pregnancy leave and pay, and medical and health insurance, would not necessarily be dropped from USSF proposals, the federation said.

The governing body also said it would refuse to agree to a deal in which World Cup prize money is not equalized.

“USSF completely ignores that the women’s team had to be much more successful than the men’s team to make about the same as the men,” Molly Levinson, a spokeswoman for the players, said in a statement, accusing the federation of “false lip service” regarding support for equal pay. “USSF determines its own budget and its own rate of pay and cannot blame FIFA for its own ongoing and past discrimination.”

The men’s union has not made a public response.

Players led by Alex Morgan sued the USSF in March 2019, contending they have not been paid equitably under their collective bargaining agreement compared to what the men’s team receives under its agreement, which expired in December 2018. The women asked for more than $64 million in damages plus $3 million in interest under the Equal Pay Act and Title VII of the Civil Rights Act of 1964.

FIFA awarded $400 million in prize money for the 32 teams at the 2018 men’s World Cup, including $38 million to champion France. It awarded $30 million for the 24 teams at the 2019 Women’s World Cup, including $4 million to the U.S. after the Americans won their second straight title.

FIFA has increased the total to $440 million for the 2022 men’s World Cup, and its president, Gianni Infantino, has proposed FIFA double the women’s prize money to $60 million for the 2023 Women’s World Cup, in which FIFA has increased the teams to 32.

“The reason why the MNT’s CBA has the potential for higher bonuses—and the reason why some of the WNT players would have made even more under the MNT CBA— has nothing to do with the players’ sex,” the USSF wrote. “The MNT has the potential to receive higher bonuses because they have the potential to bring in more revenue from their competitions.”

Under their labor contract, U.S. men got $55,000 each for making the 2014 World Cup roster, then split $4.3 million for earning four points in the group stage and reaching the knockout stage. That calculated to just under $187,000 per player.

The U.S. women split $862,500 for making the roster and $2.53 million for winning the 2019 World Cup, which came to $147,500 per player. If they had performed equivalently to the men, the bonus for each under their deal would have been $37,500. The women also receive payments for a post-World Cup tour that they split: $350,000 per game if they won, $300,000 if they finished second and $250,000 if they were third.

The deals also have different bonus structures for qualifying.