U.S. women's players seek $66.7M award without trial in equal pay lawsuit

Feb. 21 (UPI) -- United States Women's National Team players have asked a judge to rule in their favor, award them $66.7 million and not have a trial in their equal pay lawsuit against the United States Soccer Federation.

The federation, in turn, filed an opposing motion to have the lawsuit dismissed in its entirety.

Lawyers for the players and the federation filed their motions with Judge Gary Klausner on Thursday in U.S. District Court for the Central District of California in Los Angeles.

The lawsuit -- filed in March -- initially included 28 players alleging that the federation used "institutionalized gender discrimination" toward the women's team. It was filed under the Equal Pay Act and Title VII of the Civil Rights Act.

The plaintiffs were granted class status in November, meaning players from 2015 to the present day can be represented. Seventy-two women have opted into the class.

The players and federation are on track for a May 5 trial, just before the 2020 Summer Olympics. If Klausner does approve with either motion, the lawsuit will proceed to trial.

In Thursday's motion for a summary judgment, the players said the federation "relied on gender stereotyping" when it tried to justify its decisions to pay the women's players less than the men's players.

They also cited former federation president Sunil Gulati as saying that male soccer players have more "speed" and "strength" than women's players.

The players claimed that the federation's justifications do not align with the Equal Pay Act and Title VII of the Civil Rights Act, which were designed to eliminate wage discrimination.

Federation counters

The federation argued that the players have been compensated according to the pay structure they sought in collective bargaining agreement negotiations.

The federation said women's team players requested a contract different than the men, which offered them benefits the men didn't receive. The women's current labor agreement with the federation was signed in 2017 and expires in 2021.

"U.S. Soccer is aware of the public narrative surrounding this lawsuit, but the undisputed facts tell a much different story, and the court sits to render judgment based on the actual facts in the record and the governing law," the federation said in its filing. "On those grounds, the court should grant summary judgment for [the federation] and dismiss this lawsuit in its entirety."

The federation said that the "law does not guarantee identical pay to men and women who perform different work in different jobs."

The players' labor agreement includes guaranteed annual salaries, medical and dental insurance, paid child-care assistance, paid pregnancy and parental leave, severance benefits, salary continuation during injury periods, access to a retirement plan and multiple bonuses. The federation said the men do not receive those benefits.

Depositions filed

Multiple depositions also were included in Thursday's filings, including one from FIFA Player of the Year Megan Rapinoe. The Team USA star testified that a lawyer for the federation said at a 2016 bargaining session that "market realities are such that the women [on the U.S. national team] do not deserve to be paid equally to the men [on the U.S. national team]."

Gulatti and current federation president Carlos Cordeiro were also deposed. Cordeiro was asked about a statement he made during his campaign, when he said "female players have not been treated equally."

"I felt then, and I still feel to a degree, that the lack of opportunity for our female players was really what was at the root of some of their issues," Cordeiro said. "The fact that the Women's World Cup generates a fraction of revenue and a fraction of what the men get paid is a reflection, frankly, of lack of opportunity. ... Women's soccer outside of the United States doesn't have the same degree of respect."

Finnie Bevin Cook, an economist from Deiter Consulting Group, assessed damages for the players to reach the figure of $66,722,148 in back pay. That does not include punitive damages.

The players filed a second motion asking the court to disallow federation expert testimony if the case proceeds to trial.

The motion called the opinions of federation experts Philip A. Miscimarra, Carlyn Irwin and Justin McCrary "wholly or in significant part irrelevant to the issues at hand." The players said their testimony misstates the law, would confuse the jury and would "needlessly complicate and prolong the trial."

Arguments criticized

The players said Miscimarra -- a partner at the law firm Morgan Lewis & Bockius LLP -- offers "irrelevant legal argument and factual speculation in the guise of expert testimony." They also said Miscimarra advocated for an "inconsistency" between federal labor law and the requirements of the Equal Pay Act and Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin.

The players said Miscimarra implied that the collective bargaining agreement legally trumps the requirements of equal pay laws, and "justifies unlawful discrimination."

The players also said Miscimarra implied there is nothing improper about the "discriminatory compensation" they receive because he says it is a product of their labor agreement. Miscimarra cited the trade-offs, priorities, compromises and concessions in the agreement and said the players and federation have the right to make their own decisions about what they view as important and acceptable when negotiating labor agreements. The players said the "law is clear" that their rights protected by equal pay laws cannot be waived during collective bargaining.

Irwin, a senior adviser at Cornerstone Research, provided a comparison of the total amount of money members of the women's team made compared to the men's team, while the players said she should have calculated rate of pay because the women only earned more money when they played in more games and achieved much better results than men's team players.

McCrary advocated for a "risk analysis" exception to the equal pay laws. The economist defined that risk as the uncertainty in compensation tied to performance clauses in players' contracts. The women receive more guaranteed pay than the men, per their collective bargaining agreements. The men's agreement includes more performance-based pay than the women's agreement, meaning men's pay is more tied to positive or negative playing results than women's pay.

Different combinations

McCrary said since the men and women have different combinations of base pay and bonuses, there is no way to determine if the payment systems are discriminatory because there are different "risks" presented in those payment packages.

The players said if McCrary's theories were permissible, any employer could avoid equal pay law requirements by using different combinations of bonuses and base salary than those used for female employees.

"In the most recent [collective bargaining agreement] negotiation, [the federation] repeatedly said that equal pay was not an option regardless of pay structure," players' spokeswoman Molly Levinson said in a statement.

"[The federation] proposed a 'pay to play structure' with less pay across the board. In every instance for a friendly or competitive match, the women players were offered less pay that their male counterparts. This is the very definition of gender discrimination, and of course, the players rejected it."