In U.S. Soccer Ruling, Judge Shows Why "Equal Pay" Can Be Elusive

Had these females been men, it was argued, they would have been paid more. The judge doesn't disagree, but nevertheless ends a pay bias claim based on the history of pay negotiations.
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A California federal judge has stopped female professional soccer players from advancing to trial on a claim that the United States Soccer Federation had violated the Equal Pay Act, a statute meant to root out wage discrimination among the genders. These women can go to trial next month on a separate bias claim related to how they were allegedly subjected to inferior travel accommodations, but it's the judge's thoughts on the legality of what men and women were paid that has surprised many observers and could prove influential even beyond the arena of world-class sports.

In the opinion issued late Friday, U.S. District Court Judge R. Gary Klausner takes up a pay dichotomy that is not easily the subject of a reckoning.

On one hand, the U.S. Women's Soccer Team is unbelievably successful, champions of the past two iterations of the World Cup, and as they submitted, had these women been men, they would have been paid more. That's because the bonuses for paying certain types of matches were higher for the men.

But on the other, thanks to the fact that they played more games (partly because of their success) and more high-quality ones (tournaments instead of "friendlies"), the women garnered more in total compensation and on a per-game basis than the men.

At an earlier stage of class certification in this dispute, Klausner let the women move forward as a group on the basis that otherwise it would lead to the "absurd result" where "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 now, he hands the defendants a win on summary judgment.

Why?

That's largely due to collective bargaining. There, the women seemingly prioritized stability and are now paying the price — at least legally.

The judge writes that the "history of negotiations between the parties demonstrates that the [Women's National Team] rejected an offer to be paid under the same pay-to-play structure as the [Men's National Team], and that the [Women's National Team] was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to-play structure when they themselves rejected such a structure."

Here's the full must-read opinion.