Mediation is a good play in US women's soccer pay equity suit

Defending World Cup Champion U.S. Women's National Team soccer players have agreed to mediate their gender pay equity lawsuit against the U.S. Soccer Federation. According to the players' lawsuit, the team is performing at the very pinnacle of their sport and have become a dynasty on the global stage -- on Tuesday the team defeated England in the World Cup semifinals and will play in the finals on Sunday -- but earn pay and perquisites that are staggeringly less than their poorer-performing male peers.

Given the unique facts and defenses in this case -- and the potential for broad impact across the world of sport -- mediation is an excellent opportunity for the parties to manage the risks of litigation and work toward a resolution that addresses systemic gender inequality in soccer and that serves as a model for other teams facing similar issues. Mediation may also create a framework for the players and the Federation to constructively move forward together again as a team. The parties have agreed that the mediation will take place following the current World Cup tournament.

The team's case raises fascinating issues that implicate gender equity, but which may defy an easy application of the pay equity and gender discrimination laws. The players allege they are paid significantly less than their counterparts on the U.S. Men's National Team despite being required to perform the same responsibilities, such as participating in games and training as requested by the Soccer Federation, maintaining a high level of competitive soccer skills and physical conditioning, engaging in promotional and media activities, and complying with all rules of the sport's governing body, FIFA. In fact, due to their breathtaking success as repeated World Champions, the women point out that they are required to play more games -- resulting in more practice, training, travel and promotional activities -- and have brought in more revenue for the Federation, than their male counterparts, who were knocked out in the first round of last year's World Cup play.

The women's team also asserts that the Federation has failed to treat them equally to their male counterparts in training and travel conditions (such as charter flights), as well as marketing and promotion efforts. For example, the women are frequently required to play on inferior artificial turf -- which can lead to injuries and affect game play -- while the men more consistently play on natural grass or a temporary grass overlay installed by the Federation.

The Federation responds that the men and women players are not proper comparators under the Equal Pay Act or Title VII because they perform different work for separate organizations under separate collective bargaining agreements. According to the Federation, the two teams are functionally separate organizations which operate under separate budgets, which in turn reflect the enormous gap between the FIFA World Cup purse for men and for women. The two teams perform different work insofar as they play in different competitions, in different countries, at different times, against different teams. In addition, the pay structures are different in that the female players receive guaranteed salaries and benefits, plus bonuses, while the male players are paid strictly under a "pay-for-play" framework rejected by the women's team during CBA negotiations.

Each side is betting on how a judge might analyze these facts under the federal Equal Pay Act's framework, which requires equal pay for men and women working in the same establishment who perform jobs requiring substantially equal skill, effort and responsibility under similar working conditions. 29 U.S.C. Section 206(d)(1). (Note that the California Equal Pay Act, which is not at issue in the case, no longer mirrors the federal EPA.) In addition, the Federation has an affirmative defense if it can prove that any pay disparity is explained by one of four statutory exceptions: a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or another legitimate "factor other than sex." 29 U.S.C. Section 206(d)(1).

The Federation points to the fact that the men's pay structure was rejected by the women's team's union as a legitimate "factor other than sex." However the team's counsel has responded that the negotiations themselves were infected by bias. A federal EPA plaintiff can rebut the employer's claimed defense by showing it is merely a pretext for discrimination. Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986).

All cases involve the risk of loss for both sides. Mediation avoids the risk that a judge or jury may decide these issues in a way that is different than what either party expects.

In addition, mediation offers the opportunity for the players and the Federation to agree on a resolution that may be different, and more mutually beneficial, than what a judge or jury might award. For example, it is not clear what remedies a court would award if the team is successful, since the team salary plus bonus system is different from the alleged comparators' pay-for-play bonus-only system. Would a court simply gross up the bonuses, without regard to the benefit the team players receive from having a guaranteed salary? What sort of court order would be appropriate to remedy disparities regarding how often the men get charter flights as opposed to the women or how often they play on different turfs?

In fact, these disparities are symptoms of deeper gender inequities in sport which may not be easily addressed by court order. In mediation, the parties are free to explore resolutions which go far beyond what a court might award. For example, settlement funds could be dedicated to developing the pipeline of women players, investigating and reporting on the structural hurdles faced by women soccer players, and hiring diversity and inclusion consultants to ensure that the benefits of playing for the Federation are shared equally between men and women.

The women's team has proved on the field the incredible value of their work and the depth of their talent. That success and visibility on the playing field provides the team momentum in mediation to level the economic playing field with the male players. 