The U.S. Women’s Soccer team has won four FIFA World Cup titles and four Olympic gold medals. The U.S. Men’s Soccer team has not, and did not even qualify for the most recent men’s World Cup. In the wake of the successes of the women’s team, particularly in comparison to the record of the men’s team, media attention was drawn to arguments that women players were paid less than male players. And yet, the United States District Court for the Central District of California has now dismissed the majority of their claims. What happened?
It turns out that the story wasn’t quite what was reported, and that the details of the various player arrangements were far more complicated than media sound bites would permit. These issues are present in many class cases involving alleged pay disparities, but were especially important in this instance.
In Morgan v. United States Soccer Federation, Case No. 2:19-cv-01717-RGK-AGR(C.D. Cal., May 1, 2020), women’s soccer star Alex Morgan and others brought suit under the Equal Pay Act and Title VII, contending that women players as a class were paid less than male players despite their greater success on the field. Because the Equal Pay Act is part of the Fair Labor Standards Act, technically that part of the case was a collective action, governed, like overtime or minimum wage claims, by the opt-in provisions of section 16(b) of the FLSA. The Title VII claims were brought as a Rule 23 class. In late 2019, the district court certified the case as a collective action under the EPA, and a class action under Title VII. So far, so good for the plaintiffs.
But once the court turned to the merits of the defendant’s motion for summary judgment, the case did not go so well for the class. The court’s 32-page opinion detailed the provisions of the applicable collective bargaining agreements and the extensive bargaining history that led up to them. The two teams had separate collective bargaining agreements, which were separately negotiated by different unions. Both contained complex but different systems of incentives, rewards and bonuses. Based on these facts alone, there were apparent problems with the underlying claims, but the court’s analysis goes even deeper and finds fatal flaws with the most serious of the allegations made.
First, it turns out, the court found that women players actually earned more money than male players ($220,747 per game versus $212,639).
Because of this fact, the plaintiffs out of necessity had to make some less-than-straightforward arguments, based mostly upon the details of the two collective bargaining agreements. They argued, for example, that they would have made more if they had had the same contract as the men. Unfortunately, the reverse also proved to be true, which is that because of the formulas of the two contracts, the male players themselves would have made more if they had worked under the women’s contract. Further, the bargaining history demonstrated that the union representing the women soccer players had negotiated hard and successfully to obtain guarantees, automatic increases, and benefits that were not available to the male soccer players. Indeed, the union had rejected a proposal to play under the same pay scheme as the male players. The court rejected the argument that it should essentially review every potential stream of revenue separately, but instead looked to the total compensation package.
The plaintiffs also alleged claims under Title VII for differences in working conditions, such as the type of playing surface (real vs. artificial turf) and the use of chartered air to travel to games. Portions of these claims, too, suffered from attenuated circumstances and difficult comparisons. The court ultimately found a question of fact for a period of time regarding the use of business class air travel versus chartered flights, leaving a relatively smaller part of the case for trial.
The Morgan case is unusual for the publicity it has drawn and the obvious differences in the teams’ records. It is also a case arising in the very rare instance in which an employer can lawfully distinguish gender in work assignments (in this case, male soccer teams and female soccer teams). But it also highlights the complexity of equal pay claims when the challenged disparities arise from reasons other than sex.
The bottom line: Complex compensation schemes can both give rise to and become defenses to Equal Pay Act claims.