As the U.S. Women’s National Soccer Team advanced to the Olympic semifinals by defeating the Netherlands on Friday, five groups filed amicus briefs advocating for the players in their pay equity class action lawsuit.
The players’ association for the U.S. Men’s National Soccer Team was joined by former officials from the Equal Employment Opportunity Commission as well as the agency itself, the National Women’s Law Center and Georgetown Law’s Institute for Constitutional Advocacy and Protection in urging the U.S. Court of Appeals for the Ninth Circuit to reverse U.S. District Judge Gary Klausner’s granting of summary judgment for U.S. Soccer.
An amicus brief (“friend of the court” brief) is a statement or argument submitted by a party outside of the litigation but who possesses an interest in the outcome. The three judges on the Ninth Circuit who will be assigned to review the USWNT players’ appeal will be free to weigh the amicus briefs—as well as those submitted by advocates of U.S. Soccer—as much as they like. In some cases, amicus briefs play influential roles. This was evidenced in the U.S. Supreme Court’s ruling in NCAA v. Alston, where several amicus briefs were cited in the opinions drafted by Justices Neil Gorsuch and Brett Kavanaugh. In other cases, amicus briefs appear largely ignored.
The five amicus briefs will give Ninth Circuit judges much to consider. This is perhaps most true of the brief filed by the players’ association for the men, a group that has enjoyed much less success on the field and yet—according to some metrics—have been paid much more. The men’s brief doesn’t mince words, saying that under the respective collective bargaining agreements and in light of game performances, the women should been paid more than the men.
“A woman’s rate of pay,” the men’s PA brief further charges, “is not equal to a man’s, if the woman must consistently achieve better outcomes merely to get to the same place.” To that end, the PA insists that Judge Klausner erred in his math by calculating the total amount paid by U.S. Soccer to the men and women between 2015 and 2019 and then “dividing it by the number of games played, without distinguishing between appearance fees and performance bonuses.” This metric, the PA insists, led the judge to mistakenly conclude “that because the women received more money in total, on an average per-game basis, they were not paid less than the men.” In citing Sportico writer Daniel Libit’s report, the PA further lambasts U.S. Soccer for “spending tens of millions on legal fees,” while not raising pay for the women.
The former EEOC officials’ brief takes aim at a core argument by U.S. Soccer: that USWNT’s players’ association bargained the pay rules that they now contend are illegal. The officials maintain, as attorney Nicole Saharsky of Mayer Brown asserted in USWNT’s opening brief, that unequal pay rates cannot be made lawful through a CBA. Likewise, they argue, employees in a union can’t prospectively waive equal pay claims in a CBA. Keep in mind, this line of reasoning didn’t persuade Judge Klausner, who found it more instructive that those bargaining on behalf of USWNT players negotiated the rules at issue. It could, though, find a more receptive audience with the Ninth Circuit, which will review the case “de novo” meaning “from the new” and thus not in deference to Judge Klausner’s conclusions.
The EEOC’s agency amicus brief amplifies arguments raised by its former officials. “The creation of unequal rates of pay through the collective bargaining process,” the brief declares, “does not qualify as an exception or constitute a defense available to an employer for violations of the [Equal Pay] Act.” It adds that the respective CBAs for the women’s and men’s players appear to “show an overtly sex-based wage system with unequal appearance fees and bonuses for nearly every category of game . . . an employer cannot pay its women employees less simply because they are willing to work for less.”
The brief by the National Women’s Law Center—joined by the ACLU Foundation, the Anti-Defamation League and more than 60 other organizations—links the USWNT players’ case to broader patterns of sex and gender inequities in sports. “The gender pay gap,” the brief notes, “is a persistent reality within sports, driven by and reflecting larger patterns of gender discrimination in athletics.” The brief goes on to describe how boys have “over 1.13 million more opportunities to play high school sports than girls do each year.” It also emphasizes that access to athletic participation opportunities are the lowest “for girls of color, girls of lower socioeconomic status, and girls in rural and urban areas.” In addition, the brief advances legal arguments mentioned above, including the assertion that Judge Klausner “failed to account for the USWNT’s superior performance in determining the rate of pay” when he focused on total compensation paid to each team and then averaged it on a per-game-played basis.
Finally, the brief by the Institute for Constitutional Advocacy and Protection makes the case that U.S. Soccer has a “special statutory responsibility to treat its women’s and men’s teams equally.” This responsibility, the brief maintains, is consistent with Ted Stevens Olympic and Amateur Sports Act of 1998, “granting national governing bodies like [U.S. Soccer] an effective monopoly over the development, selection and promotion of national teams in their respective sports.” In other words, because of the favorable legal status Congress has bestowed on U.S. Soccer, it has a higher responsibility to avoid engaging in discriminatory acts.
In response to the amicus briefs, a spokesperson for U.S. Soccer tells Sportico: “U.S. Soccer is firmly committed to equal pay, just as the members of our senior national teams are. We will continue working with both our Men’s and Women’s National Teams to equalize FIFA prize money and to chart a positive path forward to grow the game both here at home and around the world.”
Attorneys for U.S. Soccer will file their reply brief (to USWNT players’ opening brief) by Sept. 22. U.S. Soccer maintains that USWNT players’ association willingly negotiated and agreed to a contract that includes guaranteed annual salaries of $100,000 and benefits, as well as a system for game bonuses. The players’ association for the men’s players, in contrast, willingly negotiated a contract that eschewed salaries and benefits for payment on a pay-to-play basis. USWNT players and U.S. Soccer disagree sharply on how to correctly calculate compensation and rate of pay.