US judge grants class certification to women soccer players suing federation

A federal judge granted class certification Friday to members of the U.S. women's soccer team who accused the national soccer federation of paying them substantially less than men's players based on sex.

"This is a historic step forward in the struggle to achieve equal pay," women's soccer team spokeswoman Molly Levinson wrote in an email Friday. "We are so pleased that the court has recognized the USSF's [the U.S. Soccer Federation's] ongoing discrimination against women players, rejecting ... tired arguments that women must work twice as hard and accept lesser working conditions to get paid the same as men."

Members of the Women's National Team, represented by New York partner Jeffrey L. Kessler of Winston & Strawn LLP, argue although they are called upon to perform the same job responsibilities as members of the Men's National Team, and despite having been far more successful, the federation compensates them less on a per-game basis.

"This injury is concrete," U.S. District Judge R. Gary Klausner in Los Angeles wrote in his order granting class certification. "Indeed, plaintiffs have offered evidentiary proof that had they been paid on the same terms as the [men's team], they would have earned more money per game and, as a result, more money per year."

The plaintiffs negotiate their pay through the U.S. Women's National Team Players Association. In 2016, in response to a demand by the association for equal pay, a federation representative stated, "Market realities are such that women do not deserve to be paid equally to the men," according to the complaint cited in Klausner's order.

In response, the players association proposed a revenue-sharing model that would test the federation's market realities theory.

Under the proposed model, "player compensation would increase in years which the USSF derived more revenue from the WNT [Women's National Team] activities and player compensation would be less if revenue from those activities decreased."

The federation rejected this proposal, according to the complaint.

Represented by Chicago employment attorney Ellen E. McLaughlin of Seyfarth Shaw LLP, the federation argued against class certification in late September, saying the proposed class representatives -- Alex Morgan, Carli Lloyd, Megan Rapinoe and Becky Sauerbrunn -- were paid more than even the highest-earning men's team members and therefore "cannot show they have suffered an injury-in-fact."

"The court disagrees," Klausner wrote.

"Courts interpreting the EPA [Equal Pay Act] ... have explicitly rejected this argument -- for good reason." Klausner wrote, citing New York civil rights case Ebbert v. Nassau County.

"To hold otherwise would yield an 'absurd result,' as this would mean not only that 'an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA ... as long as the woman negated the obvious disparity by working twice as many hours,' but also that a woman in this scenario would not even have standing to challenge the complained-of practice in the first place," he added.

After winning their third international championship this year, all 28 players on the women's team filed a collective action and class action against the federation in March, claiming gender discrimination and violations of their civil rights. Alex Morgan v. United States Soccer Federation, Inc. 19-CV01717 (C.D. Cal., filed March 8, 2019).

In July, federation president Carlos Cordeiro wrote in an open letter to colleagues and U.S. soccer supporters, saying he and the federation believe all women deserve fair and equal pay but the two teams operate under separate bargaining agreements.

"In the case of our men's and women's national teams, they have different pay structures, not because of gender, but because each team chose to negotiate a different compensation package with U.S. Soccer," he wrote.

Responding in a phone interview last month, Kessler said: "They did not, in their bargaining agreement, say, 'Could you please pay us less?' The women's team asked for equal pay and were refused -- that is discrimination."

The trial date is set for May 5, 2020.

Attorneys for the federation were unavailable for comment Friday.