Be Aggressive

The women’s national team has an undeniably strong sex-discrimination case against the U.S. Soccer Federation.

Soccer players Megan Rapinoe, Mallory Pugh, and Alex Morgan celebrate with Tobin Heath.
Soccer players Megan Rapinoe, Mallory Pugh, and Alex Morgan celebrate with Tobin Heath after a goal against Brazil in the first half of the SheBelieves Cup at Raymond James Stadium on Tuesday in Tampa, Florida. Mike Ehrmann/Getty Images

The U.S. women’s national soccer team is at the top of its game, poised to dominate the 2019 Women’s World Cup in just three months. But the players have been socked with an undeserved penalty card by their employer, allegedly denied equal pay for their work. And as the tournament approaches, they’re ready to take their fight off the field and into the courtroom.

All 28 members of the team filed a lawsuit Friday against the United States Soccer Federation alleging persistent and unlawful gender discrimination. The suit is a savvy legal maneuver that’s plainly designed to help shape the narrative around unequal pay for female athletes. Released on International Women’s Day, the team’s complaint accuses the federation of concealing egregious sexism behind the spurious facade of market realities. It is a powerful attack on a pay structure that seems designed to disadvantage women in sports.

The United States Soccer Federation employs both the U.S. Senior Women’s National Soccer Team and the U.S. Senior Men’s National Soccer Team. Unlike the men’s team, the female players are world champions because of their victory at the 2015 FIFA Women’s World Cup. Male and female players perform comparable jobs, but women have long been paid substantially less. From 2013–16, for instance, female players earned as little as 38 percent of the compensation their male counterparts received. In 2014, the men’s team received bonuses totaling $5,375,000 for losing in the round of 16; the next year, the women’s team received just $1,725,000 for winning the tournament. The federation also forced the women’s team to play on artificial turf—which presents a heightened risk of injury—much more often than the men’s team. And it treated the men’s team to charter flights while denying them to female players.

In 2016, the women’s team attempted to redress these disparities while negotiating a new collective bargaining agreement. It didn’t work. The team requested compensation equal to that given to male players—and were denied. It also proposed a revenue-sharing model under which female players’ pay would increase when the team brought in more money and decrease when it brought in less. This structure would test the federation’s theory that women earned less money than men because Americans are less interested in women’s soccer by tethering the team’s pay to its own economic success. The federation rejected the idea. Today, every player on the women’s team continues to earn less than their counterparts on the men’s team.

What’s behind this gender imbalance? According to the complaint, during negotiations in 2016, the federation insisted that “market realities are such that the women do not deserve to be paid equally to the men.” Tone-deaf and odious as that statement may be, it was clearly an effort to dodge legal repercussions: If “market realities” truly dictate unequal pay, the women’s team would struggle to sue under federal civil rights law.

But the federation’s simplistic narrative clashes with the facts. In 2017, the former president of Soccer United Marketing, which helps promote the national teams, admitted that the federation has “taken the [women’s team] for granted,” according to Friday’s complaint. The federation failed to promote the women’s team on par with the men’s team, leading to a cycle of decline. Fewer people know about and attend women’s games, leading to less money earned from each game, leading to lower ticket prices to accommodate lower demand. These cheaper ticket prices depress revenue—a fact that the federation then cites to justify paying women less.

But ticket prices cannot be viewed in a vacuum. They are, the lawsuit argues, the result of a failure to promote the women’s team equally to the men’s team. The suit describes this problem as “manufactured revenue depression” and alleges that the federation uses it “as pretext for lower compensation” for female athletes.

Now that theory will be tested in court. The players accuse the federation of violating both the Equal Pay Act, which requires equal pay for equal work, and Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of sex. Their class-action lawsuit seeks back pay, front pay, damages for lost compensation and job benefits denied because of sex, and punitive damages “to deter future discriminatory conduct.” The players want an opportunity to make their case to a jury that the federation flagrantly mistreated them on the basis of their gender.

Will they succeed? It will be a tough battle. Proving an equal pay violation under federal law is notoriously difficult, because employers can put forth some “factor other than sex” to justify unequal compensation. Employers cannot take advantage of sexist “market forces” to rationalize inequitable pay—by, say, paying women less simply because they are willing to take a lower salary than men. But employers can cite “legitimate, job-related reasons,” like experience, ability, and performance.

Much of the legal battle over this lawsuit will center on the question of whether the federation’s pay disparity is based on some “legitimate” business reason or sexism. The federation will point out that the Men’s World Cup brings in much more overall revenue than the women’s—more than $6 billion in 2018, compared to an estimated $131 million for the upcoming women’s tournament. But in the­­­ 2016 fiscal year, the women’s team actually took in a higher net profit than the men’s team due to their global success, according to the complaint. The revenue disparity cannot, by itself, explain women’s dramatically lower pay, even in years when the women’s team brought in more money for their employer than the men’s.

To win, the women’s team will likely have to prove its theory of “manufactured revenue depression,” which will require extensive discovery into the federation’s alleged malfeasance behind the scenes. The team will need to convince a jury that there is no non-sexist justification for its lower pay and disparate treatment. It will have to persuade jurors to set aside stereotypes about the ostensible lesser value of women’s sports and agree that the federation suppressed the team’s own economic potential.

Even if the team cannot succeed at trial, however, its lawsuit will go a long way toward winning over public opinion. The facts of this case are egregious, and it is hard not to view the federation’s pay structure as rank sexism. It is indisputable that female players are earning less than their male counterparts for equal work. Their employer can try to explain away this disparity by alleging that American fans are the real sexists for failing to invest in women’s sports. But the stubborn reality appears to be that the federation, not the fans, is perpetuating this cycle of inequality.

This story was updated to include more information about revenue and profitability of the U.S. men’s and women’s soccer teams.