In their final written brief to the U.S. Court of Appeals for the Ninth Circuit, USWNT players on Monday demanded that the appellate court reverse an adverse ruling last year by Judge Gary Klausner. The judge found that USWNT players earned more, not less, than USMNT players in terms of cumulative and average per-game pay, and that the USWNT players’ union willingly bargained a system they now contest.
On behalf of USWNT players, attorney Nicole Saharsky argued that Judge Klausner misapplied the Equal Pay Act when he focused on total compensation and (in the players’ view) failed to compare rates of pay. She also blasted U.S. Soccer for trying to “make this case as complicated as possible” when, in her assessment, the case can be “simply” understood as one where Judge Klausner erred in failing to find sex discrimination.
Saharsky also called it “factually false” that U.S. Soccer offered similar CBAs to USWNT players and USMNT players. USWNT and USMNT have their own unions, which negotiate two different systems of pay. While USMNT players can earn higher bonuses, they lack guarantees. They weren’t paid when games were canceled during the COVID-19 pandemic. USWNT players, in contrast, earned their full salary and benefits despite the cancellation of their games. The difference is they negotiated higher guarantees, with lower bonuses.
Meanwhile, the USWNT’s union, USWNTPA, and U.S. Soccer agreed on Monday to a three-month extension of their CBA, which was set to expire on Dec. 31. The extension instructs that U.S. Soccer will no longer pay salaries of USWNT players who play in the National Women’s Soccer League. Those players will instead sign directly with teams in the NWSL—which is attempting to negotiate a CBA with NWSL players.
In court filings in the pay-case appeal, U.S. Soccer has categorically rejected USWNT players’ arguments. U.S. Soccer amplifies economic data that suggests—U.S. Soccer would say proves—that USWNT players earned more, not less, than USMNT players. U.S. Soccer also maintains it offered USWNT’s union the same basic deal as USMNT players, but that USWNT players preferred a system with a higher floor even if the accompanying tradeoff was a lower ceiling.
Saharsky rejects this premise as a lie and one that underhandedly omits crucial details. U.S. Soccer, she wrote, “spins a false narrative about how the women’s union negotiated for and got exactly what the women wanted during collective bargaining. Nothing could be further from the truth: The women’s union asked for equal pay, and [U.S. Soccer] refused, offering an agreement with the same structure as the men’s, but with lower bonuses across the board.” She further lamented that the union “bargained for the best deal it could get,” a deal that featured “much lower bonuses.”
Keep in mind, U.S. Soccer maintains that USWNTPA willingly signed the CBA at the root of the legal dispute. Even if the union was left with a disadvantaged bargaining position, it still signed the agreement. There was no strike or other labor dispute.
Saharsky also took aim at the merits of Judge Klausner granting summary judgment, which is only appropriate if no reasonable jury would have decided differently. She asserted that, given conflicting data points, “whether the women and men actually were paid unequally is a fact question for the jury.” Saharsky’s argument is underscored by dueling data presented by expert witnesses for USWNT players and U.S. Soccer regarding pay, wages and revenue.
“The arguments advanced by the Women’s National Team players in the reply,” U.S. Soccer expressed in a statement, “are not supported by the facts or the law. The district court correctly ruled that the WNT was paid more than the Men’s National Team both in aggregate and on a per-game basis. The players’ continuing narrative that the WNT had to work harder to receive equal pay simply finds no support in the record. And while the WNT players now purport to abandon the absurd argument that every single component of the teams’ pay needs to be exactly the same, they offer no workable alternative. Nor do they meaningfully confront the fact that the World Cup prize money—which is set by FIFA, not U.S. Soccer—explains more than 90% of any asserted pay differential. We remain confident in our legal position and the affirmance of the district court’s decision on appeal.”
Unless the two sides reach a settlement, it will likely be years before the litigation is resolved. The Ninth Circuit panel will consist of three yet-to-be-named judges. The panel will hold an oral argument in 2022 in Pasadena, Calif., and issue a ruling several months thereafter.
If the panel reverses in favor of the USWNT players, the panel would remand the case back to Judge Klausner for new proceedings that could take over a year. If the panel affirms the victory for U.S. Soccer, USWNT players could still petition for a “rehearing en banc,” where a panel of 11 Ninth Circuit judges could choose to rehear the case. A subsequent appeal to the U.S. Supreme Court is also possible, though the Supreme Court only grants review in about 1% of cases.
The three-month CBA extension gives both sides additional time to talk. A litigation settlement and CBA are different in purpose. A litigation settlement resolves claims for money the players say should have been paid but wasn’t, whereas a CBA is about pay (and other conditions of employment) going forward. A settlement is also crafted by attorneys for the players while a CBA is negotiated by the union. Still, there is enough overlap that a global deal might be possible.
With assistance from Luke Cyphers.
(This story has been updated with a statement from U.S. Soccer in the ninth paragraph.)