The pending settlement between USWNT players and U.S. Soccer in the pay discrimination litigation might not be the final word on whether players have been lawfully paid.
Former USWNT goalkeeper Hope Solo, who on Wednesday sharply criticized the settlement as “heartbreaking and infuriating,” has vowed to continue her own case against U.S. Soccer.
Solo sued U.S. Soccer in August 2018, seven months before Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and Carli Lloyd (referred to as “Morgan” in legal filings and the rest of this article) did the same. The two lawsuits are very similar. Both allege U.S. Soccer has violated the Equal Pay Act and Title VII of the Civil Rights Act in pay rate and workplace conditions. USWNT players, the lawsuits charge, have been treated inferior to USMNT players because of sex discrimination. U.S Soccer disagrees with that assertion and emphasizes that USWNT and USMNT players rely on their own unions to negotiate their own CBAs.
Both lawsuits were filed in California, but in different federal districts: Solo sued in the Northern District (San Francisco) and Morgan sued in the Central District (Los Angeles). The cases therefore have different presiding judges, Judge James Donato for Solo v. U.S. Soccer and Judge Gary Klausner for Morgan v. U.S. Soccer. Judge Klausner certified Morgan as a class action on behalf of players from USWNT teams as far back as 2015. Solo last played for USWNT in 2016.
At times, the two litigations have proceeded with hostility.
In a 2019 court filing, Solo argued for inclusion in mediation between her former teammates and U.S. Soccer. Without her present, Solo warned, the players might “back down” and “surrender.” While USWNT players and U.S. Soccer couldn’t agree on much, both wanted Solo excluded. In early 2020, Solo and U.S. Soccer agreed to stay (put on hold) her case pending resolution in Morgan.
In May 2020, Judge Klausner granted summary judgment for U.S. Soccer. Morgan appealed to the U.S. Court of Appeals for the Ninth Circuit but the appeal is off with the tentative settlement. The settlement, however, is contingent on USWNT and U.S. Soccer ratifying a new CBA (their current CBA will expire on March 31) and Judge Klausner’s approval. U.S. Soccer would pay the players $22 million in backpay and spend another $2 million on post-career planning and other initiatives. Morgan had sought more than $66 million.
On her Instagram page, Solo, 40, urged the public to “read the fine print” in the tentative settlement. The two-time Olympic gold medalist insisted that “backpay for a select group of players isn’t equal pay and it’s not what this fight was about.” Solo also ridiculed Megan Rapinoe and Alex Morgan for being, as Solo sees it, acquiescent to U.S. Soccer’s wishes and taking “an easy out of a fight they were never really in.” Solo ended her post by stressing, “the equal pay case against US Soccer I filed on behalf of the Team long before the Team sued, still stands and I remain committed to fighting for all players—past, present and future.”
Court filings indicate that Solo didn’t opt out of the Morgan class action for purposes of Title VII claims. She would thus likely be bound by their resolution in Morgan. However, Solo didn’t opt into the Equal Pay Act part of the class action, meaning her claims on that front remain alive.
Assuming Judge Klausner approves the settlement and therefore closes the Morgan case, U.S. Soccer would petition to lift the stay in Solo’s case. U.S. Soccer would then exhort Judge Donato to find, like Judge Klausner in 2020, that U.S. Soccer didn’t violate the law. It would argue that Klausner’s summary judgment should resolve Solo’s claims on the merits. Solo would oppose these arguments, underscoring distinctions between the two cases.
Had the Ninth Circuit affirmed Judge Klausner’s ruling, Judge Donato would be poised to dismiss Solo’s case. The Ninth Circuit has jurisdiction over federal district courts in California. Under the principle of stare decisis, Judge Donato would be bound by precedent.
But the Ninth Circuit never got the chance to weigh in. The case has tentatively settled.
Judge Klausner’s ruling at the district level is the last one on the merits. It serves as a persuasive, but not binding, authority—including on Judge Donato.
While Solo and U.S. Soccer could settle at any point, their litigation and the surrounding controversy about player pay are poised to continue.
