On Friday, Jeffrey Kessler and other attorneys from Winston Strawn and Mayer Brown filed the opening brief on behalf of players from the U.S. women’s national soccer team in their appeal to the U.S. Court of Appeals for the Ninth Circuit.
The 79-page document makes the case that U.S. District Judge Gary Klausner erred last year in granting summary judgment to U.S. Soccer on the most consequential elements of the women’s pay equity class action lawsuit.
Judge Klausner rejected arguments that U.S. Soccer violated Equal Pay Act and Title VII of the Civil Rights Act, two federal laws that make it illegal for employers to discriminate pay on the basis of gender.
The two sides disagree sharply on comparative pay. Both men’s and women’s players are paid according to their respective team’s collective bargaining agreement with U.S. Soccer. In brief, men’s players receive lower guarantees but more chances to earn lucrative bonuses whereas women’s players take home higher guarantees but enjoy fewer opportunities for high-value bonuses. In multiple court filings, USWNT players and U.S. Soccer have offered divergent calculations and clashing economic assumptions on which set of players is paid more and what should count as pay.
Judge Klausner, Kessler’s brief claims, mistakenly concluded “that since the USWNT players’ pay was the result of collective bargaining, the players could not argue that their pay was unequal under federal law.” The judge adopted a well-established principle in labor law: When union and management bargain a term that impacts employees’ wages, hours or other working conditions, courts ought to defer to the two sides’ bargaining choices. The logic is that if judges unwound labor agreements because a term later seems unfair to one side, unions might lose suasion over membership and management might be less inclined to bargain.
“Merely comparing what each team would have made under the other team’s CBA,” Judge Klausner wrote, “is untenable in this case because it ignores the reality that the MNT and WNT bargained for different agreements which reflect different preferences, and that the WNT explicitly rejected the terms they now seek to retroactively impose on themselves.” If the players believe their pay is too low, this line of reasoning suggests, they should blame their union.
Kessler contends that Judge Klausner, who has been a judge for 41 years, got the law “wrong.”
“Pay specified in a collective-bargaining agreement,” the brief insists, “is not immune from challenge under the Equal Pay Act or Title VII . . . it is not a defense to say that an employee’s union agreed to the unequal pay in a collective-bargaining agreement.” The brief goes on to cite supportive case precedent as well as favorable directives from the Equal Employment Opportunity Commission.
In April, the players and U.S. Soccer finalized a settlement on the players’ non-pay claims, specifically travel, hotel accommodations, venue selection and staff size. While the players and U.S. Soccer battle in court, their CBA is set to expire on Dec. 31.
“It’s an honor to compete alongside the best soccer players in the world,” team captain Becky Sauerbrunn said in a statement released on Friday. “It’s an even greater honor to stand together in our fight for what matters—equal pay for equal work.”
U.S. Soccer also released a statement, stressing that it is “committed to equal pay and to ensuring that our Women’s National Team remains the best in the world.” The statement further insists that Judge Klausner “rightly noted that the Women’s National Team negotiated for a different pay structure than the Men’s National Team, and correctly held that the Women’s National Team was paid more both cumulatively and on an average per-game basis than the Men’s National Team.”
In the weeks ahead, attorneys for U.S. Soccer will file a reply brief that counters the players’ arguments and offers its own set of advantageous precedent. Unless the two sides reach a litigation settlement on pay claims, it could be several years before a final resolution emerges. From start to finish, Ninth Circuit appeals often take a year-and-half to nearly three years. Plus, the appeal’s “finish” isn’t necessarily the litigation’s end. If the players prevail, the case would be sent back to Judge Klausner for further proceedings. Additional months would then pass before a trial is held. The trial’s verdict could then be appealed, right back to the Ninth Circuit for additional years of review.