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The U.S. women's national team made its closing written argument on Friday in a bid to overturn the dismissal of its equal pay lawsuit against the U.S. Soccer Federation.
The USWNT's main argument was that women were paid less than men. The USWNT's lawyers have emphasized recent events, including a ruling in a similar court case, to back up their appeal. Friday's deadline for written responses was the final stage before the appeal can move on to oral arguments.
The USWNT's equal pay lawsuit was dismissed in May 2020 as the judge accepted U.S. Soccer's argument that the women had actually been paid more in total compensation than their male counterparts. The USWNT's lawyers argued in their appeal that the women's performance bonuses were still smaller than the men's because they were better.
The USWNT filed their final brief in the 9th Circuit Court of Appeals on Friday, saying that an appeal granted earlier this month in another case demonstrates why the judge was wrong to dismiss their case.
The woman named Tracy was paid the same commission rate as her male colleagues, but her base pay was lower. The appeals court overturned the judge's dismissal of her case because she was paid more than her colleagues. The court said that she had been paid more because she made more sales, but that the rate of pay was lower and that it was against the Equal Pay Act.
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The legal team for the USWNT says that it proves that comparing total compensation between the USWNT and USMNT is not enough to determine if discrimination happened. The USWNT brief says that every court of appeals that considered a total-compensation approach to the Equal Pay Act has rejected it.
The district court completely ignored the fact that the players' pay depends on their performance, because it used a total-compensation standard. The women had to perform better than the men to get the same pay. Equal pay for equal work is not paid that way.
The 4th Circuit was not asked to evaluate the different compensation structures of the U.S. national teams, so the letter from U.S. Soccer doesn't apply to this lawsuit. The men are paid on a per-camp basis, whereas the women are paid on a hybrid structure where some players are paid based on call-ups but others are paid salaries.
The Fourth Circuit did not consider highly complex, negotiated pay packages of the sort that differed between men and women while all else remained the same, according to the U.S. Soccer.
The USWNT did not agree with the idea that the different structures are relevant. The USWNT wants the court to decide if women's and men's pay structures have differences, and compare total compensation rather than rates of pay.
The brief says that the made-up rule is wrong. When there are differences in pay structures, a court does not just refuse to compare rates.
The USWNT's lawyers argue that the women did not want the same pay structure as the men. The women asked for equal pay, but the U.S. Soccer refused.
The USWNT argues that the U.S. Soccer can't claim it's impossible to provide equal World Cup bonuses. The U.S. Soccer Federation has announced it wants to equalize prize money going forward, and as recently as last week boasted of a joint meeting between the federation and both national teams to discuss it. In September, Cindy Parlow Cone, the U.S. Soccer president, sent a letter to the teams calling for them to negotiate a proposal that would equalize World Cup prize money.
The USWNT's brief says U.S. Soccer is trying to make the case seem more complicated than it really is. The USWNT wants to talk about anything other than the district court's decision.
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The USWNT's case was thrown out by the judge because of the analysis done by U.S. Soccer. The USWNT challenged that logic Friday, saying that the women ended up earning slightly more per game than the men.
The USWNT brief states that the women won an unprecedented number of games. The women had earned less total compensation per game than the men over the class period, when they filed the complaint in this lawsuit. The women won the World Cup, pushing their average per-game pay above the men's.
If the men had qualified for the World Cup but lost every game, their per-game average pay would have been more than the women's. If the USWNT hadn't won the World Cup, their per-game average pay would be lower than the USMNT.
The case is expected to proceed with oral arguments, and the court has indicated that could happen as soon as March.
