Photo by Hal Gatewood on Unsplash
Chloe Knue, Associate Member, University of Cincinnati Law Review
The U.S. Women’s National Soccer Team (“USWNT”) is suing the U.S. Soccer Federation (“the Federation”). The team is seeking damages for persistent unequal pay. The female players are paid significantly less than male players on the U.S. Men’s National Team (“USMNT”). In this day and age, when women are finally being celebrated for their contributions, one might expect the Federation to simply give in and pay the women what they deserve. Instead, it is fighting back and fighting back hard.
Earlier this year, the Federation filed a brief with a federal district court in California where it argued that male players have greater skill and more responsibility. Both the public and the media found these comments to be in poor taste. But why should people be so surprised? Unequal pay for equal work is still a serious problem in this country. Many employers, like the Federation, are still finding ways to differentiate pay. For example, “[i]n 2017, women on average earned 82% of men’s earnings.” Thus, the USWNT is not an outlier.
This is a wide-spread female issue that affects everyone from the high-profile athlete to the low-level worker. Although the USWNT has asserted two claims against the Federation, this discussion will focus only on the Equal Pay Act (“EPA”) cause of action. Section II summarizes a recent EPA case, Rizo v. Yovino, from the Ninth Circuit. The Ninth Circuit would hear any potential appeal from either the USWNT or the Federation. Section III argues that the USWNT should prevail on its EPA claim. Section IV concludes by talking about what it means when “SheBelieves.”
The EPA is a federal statute, passed in 1963, that is found in 29 U.S.C. § 206(d). “The express purpose of the Act was to eradicate the practice of paying women less simply because they are women.” This is confirmed by the legislative history. “Congress . . . considered that, in 1963, American women could expect to earn only about 60% of the wages paid to their male colleagues.” The EPA established a two-prong analysis. First, the plaintiff must establish a prima facie case. The general rule is that men and women must receive “equal pay for equal work.” The plaintiff has the burden to prove that he or she is not receiving the same pay as a fellow employee of the opposite sex. Once that burden is satisfied, the second step is triggered allowing the defendant to turn to one or more of the four codified exceptions. Employers are permitted to offer men and women different salaries based on (1) seniority, (2) merit, (3) quality or quantity of production, or (4) any other reason other than sex. “The . . . exceptions operate as affirmative defenses.”
The American Bar Association posted an article online the day after Rizo was announced. The Ninth Circuit’s decision was significant because the Courts of Appeal have diverged on the fourth exception. The Rizo court arguably applied the exception more narrowly than ever before. It certainly created a pro-plaintiff precedent.
In Rizo, Alieen Rizo was a math consultant for a school district. Her salary was $62,133. At lunch, she learned that a new male hire was making $79,088. She filed suit, established a prima facie case, and the school district relied on the fourth exception. It noted that Ms. Rizo’s pay was based on the salary she received at her previous job. Because prior pay was a factor other than sex, according to the district, it was not liable for wage discrimination. The issue on appeal was whether prior pay constitutes a factor other than sex under the EPA.
The majority posed two questions. First, what is the scope of the fourth exception? And second, does prior pay fall within that scope? It determined that the fourth exception was limited to job-related factors. It emphasized that exceptions one, two, and three were all job-related and chose to read the fourth exception along that same line. Next, it held that prior pay was not job-related. The majority was concerned about the possibility that prior pay was tainted with sex discrimination. The majority wanted to narrow the focus to the actual qualifications needed to do the current job. Thus, it ruled in favor of Ms. Rizo, and established the bright-line rule that prior pay can never be used to rebut a prima facie case.
Although the Rizo case involved a nuanced question of interpretation, the key takeaway is this: the Ninth Circuit will give full force to the language and spirit of the EPA. Female plaintiffs, and players, will get justice. The court may even be willing to constrict the language of the EPA, as it arguably did here, to protect female workers.
We are no longer living in the 1960s. Circumstances have changed. The way American society views women has changed. This is due, in part, to the success of the women who represent the United States on the field, on the court, and on the beam. A physically strong woman, with grit and resilience, is a powerful image for girls and women everywhere. And, as the USWNT prepares for trial, it is necessary to acknowledge the team’s many accolades. Few will deny that the USWNT is the dominant force in women’s soccer. “The American women have had far more success recently than their male counterparts, winning four World Cups and four Olympic gold medals. The furthest the men’s team has advanced in the World Cup was the 2002 quarterfinals. The men’s team failed to qualify for the 2018 World Cup.” Thus, if the standard is merit, there is no question that the women’s team is superior. Yet, USWNT members continue to make a lot less than USMNT members.
Of course, we recognize the all-time great teams, like the Celtics in the 80s or the Big Red Machine. But what is even more memorable, are the people that make up the teams. Larry Bird and Johnny Bench, for example, are icons. They changed their respective games forever. And there is a strong argument to be made that Alex Morgan and Megan Rapinoe, just to name two USWNT players, have reached that same level of notoriety. These women have become household names. Once again, the same cannot be said of any of the male players. It would be difficult to find a person on the street who could name a single player on the USMNT. A star like Alex Morgan should not be making less money than a man that people have never heard of, just because he is a man. If the tables were turned, and the men had the same symbolic value to the American people, there is no question that their paychecks would reflect that.
Some people may wonder why they should care about these professional athletes. Members of the USWNT still make a lot of money, even if it is less than the men, and earn additional compensation through Major League Soccer contracts and endorsement deals. But we should care about the USWNT’s fight for equal pay for two reasons. First, a win for the USWNT is a win for all women. If the most powerful women in society, like these famous soccer players, are complacent, then inequities will continue to exist amongst women with less political influence. Second, USWNT members are role models. When they are treated unfairly, it sends a broader message to the young girls and women who look up to them. The younger generation hears your voice matters less. Your achievement matters less. And you will not be rewarded for your capacity to carry human life, instead you will be punished for it.
The Federation is expected to make two arguments in defense of unequal pay. First, the USMNT garners higher television ratings. And second, monetary prizes for winning international tournaments are greater for men. But asking a single question undermines these arguments: Why is this the case? It is not because of the USMNT’s achievements. Rather, it is for three very different reasons: (1) South America, (2) Europe, and (3) Asia. These are the dominant regions in men’s soccer. Big-name teams, like Portugal and Brazil, attract the fans and monetary support. The USMNT is actually a sort of underdog in this arena. In sports, the quintessential measurement of success is wins and loses. Here, there should be no exception. The women are getting results, while the men are merely participating. The men should not be able to bank on the success of other international teams. Thus, for all the reasons discussed above, USWNT players are entitled to equal pay.
In March, the USWNT played in the “SheBelieves” Cup. This is ironic considering it coincided with the team’s pre-trial battle for equal pay. The overarching meaning of this slogan is that females can achieve their dreams. When little boys look for a role model in sports, they have so many options. There is no shortage of famous male athletes who play sports like football, baseball, and basketball. But for young girls, the selection is much more sparse. Why is this? Historically, it has been less desirable to see a strong woman competing at a high level. But there has been great progress. Now, young girls have figures on the USWNT, like Alex Morgan and Megan Rapinoe, to idolize. They are American heroes. And what does the Federation do? And what do we as American’s tolerate? Unequal pay for equal work. This is against the law, and it has been since 1963. Therefore, for the good of all women, athletes or not, we must believe that she will prevail.
 Kevin Draper and Andrew Das, ‘Blatant Misogyny’: U.S. Women Protest, and U.S. Soccer President Resigns, The New York Times (Mar. 12, 2020), https://www.nytimes.com/2020/03/12/sports/soccer/uswnt-equal-pay.html,; Brakkton Booker, U.S. Soccer Apologizes For Saying Male Players Have ‘More Responsibility’ Than Women, NPR (Mar. 11, 2020), https://www.npr.org/2020/03/11/814656567/male-players-have-more-responsibility-than-women-u-s-soccer-says-in-court-filing,; Clindy Boren, Megan Rapinoe wasn’t surprised by U.S. Soccer’s ‘unbelievable’ sentiments in legal filing, The Washington Post(Mar. 19, 2020), https://www.washingtonpost.com/sports/2020/03/19/megan-rapinoe-us-soccer/,; Lauren M. Johnson, US Soccer claims it won’t pay women equally because being a male player requires more skill, CNN (Mar. 12, 2020), https://www.cnn.com/2020/03/11/us/us-soccer-federation-court-document-trnd/index.html,.
 Jonathan Adams, USA Soccer Team Salary: How Much Money Do USWNT vs. USMNT Players Make?, (updated July 8, 2019), https://heavy.com/sports/2019/07/usa-women-uswnt-soccer-salary-men-usmnt-world-cup/ (“USWNT members claimed in a recent lawsuit that their maximum salary in a typical year is $99,000 ($4,950 per game) if the team played and won 20 exhibition matchups, per Goal.com. Given the same circumstances, the men’s team would earn $263,320 ($13,166 per game) the lawsuit states.”).
 Draper and Das, supra note 1 (“It was not the first time the equal pay fight had seen sponsors side with the team against the federation they pay. Last summer, Procter & Gamble urged the federation to be ‘on the right side of history’ in the dispute and donated more than $500,000 to the women’s team’s players association. Nike and Visa also said they supported the players at the time.”).
 see note 1.
 Rizo v. Yovino, 950 F.3d 1217, at* 9 (9th Cir. 2020).
 Id. (citing U.S. Bureau of Labor Statistics).
 Booker, supra note 1 (“The women’s team is suing its employer U.S. Soccer, alleging pay discrimination and violations of both the Equal Pay Act and Title VII of the Civil Rights Act.”).
 Rizo, 950 F.3d at* 1.
 Draper and Das, supra note 1 (“Coco-Cola, Volkswagen, Budweiser, Visa and Deloitte — the presenting sponsor of the SheBelieves Cup — all condemned U.S. Soccer for condoning the legal arguments.”) (emphasis added).
 Rizo, 950 F.3d at* 2, 4.
 Id. at* 2.
 Id. at* 6-7.
 Id. (citing President’s Commission on the Status of Women).
 Id. at 4-5 (quoting Maxwell v. City of Tuscon, 803 F.2d 444, 446 (9th Cir. 1986); Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); et al.).
 Id. (quoting Maxwell, 803 F.2d at 446).
 Id. at* 2.
 Id. at* 4 (quoting Maxwell, 803 F.2d at 446).
 Id. (quoting Corning Glass, 417 U.S. at 196).
 Id. at* 4 (quoting 29 U.S.C. § 206(d)(1)).
 Id. (citing Corning Glass, 417 U.S. at 196-97; Kouba v. Allstate Insurance Co. 691 F.2d 873, 875 (9th Cir. 1982)).
 Debra Cassens Weiss, Employers can’t use salary history to justify lower pay for women, full 9th Circuit rules,ABA Journal (Feb. 28, 2020), https://www.abajournal.com/news/article/employers-cant-use-salary-history-to-justify-lower-pay-for-women-full-9th-circuit-rules.
 Id. (“‘The 9th Circuit concluded it was not permissible, but acknowledged that other federal circuits across the nation have applied different rules and have reached inconsistent conclusions,’ said the statement obtained by the Recorder.”).
 Rizo, 950 F.3d at* 10-11 (“[W]e narrow our definition of the scope of the fourth exception to job-related factors other than sex and clarify that prior pay, alone or in combination with other factors, is not one of them.”) (citing Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2nd Cir. 1992) et al.); (McKeown, J., concurring) (“The majority embraces a rule not adopted by any other circuit—prior salary may never be used, even in combination with other factors, as a defense under the Equal Pay Act.”) (emphasis added).
 Id. at* 2.
 Id. at* 2-3.
 Id. at* 2.
 Id. at* 5, 8.
 Id. at* 5.
 Id. at 8.
 Id. at 5-7 (“The House Report provided several examples that it anticipated would qualify as exceptions to the equal pay mandate, and all were job related: shift differentials, differences based on time of day worked, hours of work, lifting or moving heavy objects, and differences based on experience, training, or ability.”) (citing House Report).
 Id. at* 8.
 Id. (“We do not presume that any particular employee’s prior wages were depressed as a result of sex discrimination. But the history of pervasive wage discrimination in the American workforce prevents prior pay from satisfying the employer’s burden to show that sex played no role in wage disparities between employees of the opposite sex. And allowing prior pay to serve as an affirmative defense would frustrate the EPA’s purpose as well as its language and structure by perpetuating sex-based wage disparities.”) (emphasis added).
 Id. at* 9 (“Here, the County has not explained why or how prior pay is indicative of Rizo’s ability to perform the job she was hired to do.”).
 Id. at* 9, 11.
 Id. at* 6 (“As the Supreme Court did in Corning Glass, we also look to the EPA’s history and purpose) (citing Corning Glass, 417 U.S. at 195).
 Id. at* 14 (McKeown, J., concurring) (this opinion characterizes the majority’s decision as “drastic.”)
 Booker, Boren, Johnson, supra note 1.
 Johnson, supra note 1.
 Adams, supra note 3.
 Boren, supra note 1 (“‘It’s just incredibly disappointing. … We sort of felt the sentiments, but to know that they would just that in plain language in public is just unbelievable [referring to the brief]. Like, this is an organization and a federation that is charged with growing the game of soccer and, you know, stewards of the game of soccer for all people in this country. And to say that, I mean, its unbelievable to say that you believe that half of the people when it comes to soccer are just inherently less than the other half, to use that argument.’”) (“‘We’ve felt the undertones of sexism and misogyny. We felt the undertones of, you know, not feeling as valued or not even seeing the potential in the team in the same way that the potential of the men’s team on and off the field has been felt.’”) (quoting USWNT player Megan Rapinoe).
 Booker, supra note 1 (“‘FIFA prize money calculations can and will be dated. Commercial revs [sic] income can and will be debated. TV ratings and sponsorship can and will be debated. But to read that @ussoccer thinks this of the @USWNT and female athletes in general is disgusting and disturbing to me,’ O’Reilly said.”) (quoting a tweet from former USWNT member Heather O’Reilly).
 SheBelieves Cup, https://www.ussoccer.com/shebelieves/cup/2020-shebelieves-cup (last visited Apr. 17, 2020).