US Soccer: "Our Proposal for Equal Pay for Women & Men"

[texanincali]

And also answer my question about whether it’s ok to pay blacks less in a CBA...

This is more exhausting than fighting with my 3 year old about eating her peas. In what world do African Americans, or blacks as you call them, collectively bargain as a race? Please give me one example of this. You need to come back to planet earth.

 

[EOTL]

You've gone off your rocker. Of course I/we can admit that. USSF admitted that. The financial statements admit that. The judge admitted that. The only ones that can seem to admit they were paid more when they earned more are the women's team. They were paid more during the period where they earned more. Are you disputing this? What am I missing here?


You can turn this into whatever "ism" you want, because that is really all you can fall back on. Are you being purposefully obtuse? What part of lower % in exchange for guaranteed pay are you not understanding? There is no way you can possibly not understand how simple this is. No one forced them to endure anything. The CBA was ratified and executed by them and their representatives.

One more thing. Labeling systemic discrimination as an “-ism” is offensive. It’s a pejorative term used to minimize the reality of discrimination and put down people who support civil rights. Any time someone discusses discrimination and says “whatever” tells me everything I need to know about your character.

 

[EOTL]

This is more exhausting than fighting with my 3 year old about eating her peas. In what world do African Americans, or blacks as you call them, collectively bargain as a race? Please give me one example of this. You need to come back to planet earth.

No, it is US companies that made them do this for many years. They were able to do this because their option was either take the lesser rate or be unemployed. Sound familiar?

Georgia Railroad is one that comes immediately to mind before they got slammed down by the NLRB. Answer the question.

 

[EOTL]

No, it is US companies that made them do this for many years. They were able to do this because their option was either take the lesser rate or be unemployed. Sound familiar?

Georgia Railroad is one that comes immediately to mind before they got slammed down by the NLRB. Answer the question.

And BTW, welcome to Cali cowboy.

 

[texanincali]

No, it is US companies that made them do this for many years. They were able to do this because their option was either take the lesser rate or be unemployed. Sound familiar?

Georgia Railroad is one that comes immediately to mind before they got slammed down by the NLRB. Answer the question.

Sorry for the delayed response. I had to have a quick debate with my other daughter who’s 9 to try and crack your code.

There is no question to answer. It’s purely and completely a hypothetical. I have no desire to debate Santa Claus and the Easter Bunny.

Seriously, that little mouse in your head has to be tired of spinning that wheel. Let’s give her a rest and leave this alone. I wish the best for you and the USWNT and look forward to the upcoming protests that are sure to come.

 

[EOTL]

Sorry for the delayed response. I had to have a quick debate with my other daughter who’s 9 to try and crack your code.

There is no question to answer. It’s purely and completely a hypothetical. I have no desire to debate Santa Claus and the Easter Bunny.

Seriously, that little mouse in your head has to be tired of spinning that wheel. Let’s give her a rest and leave this alone. I wish the best for you and the USWNT and look forward to the upcoming protests that are sure to come.

it’s not a hypothetical with the WNT, and it wasn’t if you were black and looking for a job at Georgia Railroad. You asked for an example and I gave
you one. Answer the question.

 

[EOTL]

it’s not a hypothetical with the WNT, and it wasn’t if you were black and looking for a job at Georgia Railroad. You asked for an example and I gave
you one. Answer the question.

Clearly you’re having trouble with the Hobson’s choice, but that’s the point. You’re either ok with racism or you need to concede that it’s not ok to make the WNT comply with a discriminatory CBA. It’s no wonder why you keep deflecting.

 

[Keepermom2]

Sorry for the delayed response. I had to have a quick debate with my other daughter who’s 9 to try and crack your code.

There is no question to answer. It’s purely and completely a hypothetical. I have no desire to debate Santa Claus and the Easter Bunny.

Seriously, that little mouse in your head has to be tired of spinning that wheel. Let’s give her a rest and leave this alone. I wish the best for you and the USWNT and look forward to the upcoming protests that are sure to come.

The point is...you can't strictly look at this from the perspective of they signed a contract so they agreed to the pay they received. That isn't the way civil rights works.

 

[MWN]

@EOTL, @Keepermom2, @es_surf and @texanincali,

I don't think many would argue that the landscape facing women in sports is one of inequality. Inequality of revenue, pay, opportunity, etc.

We seem to be going around and round with the various arguments either accepting or not accepting an important fact, which is:

"Did the Federation and WNT attempt to address the inequality issue in 2011/12? If so, was it legally sufficient?"

I look at the facts and conclude that in 2011/12 the Federation and WNT worked together and attempted to craft an agreement that would balance the inequities of the women's game. Both parties recognized the inequities and concluded that if the WNT adopted the same pay structure as the MNT the women would have compensation swings that would be difficult to manage. This reality was due to the fact that the MNT players were solely under a performance for pay structure AND were being paid a living wage through their play in professional leagues. The women did not have a league (at the time) and wanted a different deal.

They received a different deal, the principal difference being they became salaried employees and in exchange for a $100k salary and benefits, agreed to take a lower amount of "bonus" compensation and received additional bonuses to if they played in the new NWSL.

Under the facts and circumstances facing both the USSF and WNT, I conclude the concessions and resulting CBA was legally sufficient to address the inequities facing the women's national team members, thus, the CBA did not violate the civil rights of the players. Moreover, this fact is borne out by the indisputable fact that during the period the WNT players brought their lawsuit, the WNT players were actually paid more than the MNT because the MNT failed to qualify for various bonuses due in large part to the MNT's failure to qualify for the World Cup.

There was not a prima facia "equal pay act" violation because the men were actually paid less. Moreover, I believe that even if the men were paid more, the Federation has an relatively air-tight affirmative defense under the "quality and quantity" exceptions to the Act.

Reasonable minds can look at the negotiations differently, but the fact the USWNT players were given a salary and NWSL bonus and health care, severance, child care, and many other benefits that the MNT did not receive makes me believe the Federation and WNT negotiated in good faith and there was no malice or intent to pay the women's less by taking advantage of an unequal bargaining position, rather, it was to pay them differently in an attempt to cure the inequities of the women's game versus the men's game.

"Did the Federation and WNT attempt to address the increasing "value" the WNT brought to the Federation in 2016/17? If so, was it legally sufficient?"

I conclude they did because the women successfully negotiated for the similar benefits they received in the 2011/12 CBA and negotiated for additional bonuses relating to ticket sales, viewership and exceeding revenue targets.

In short, the current CBA includes language that rewards the WNT for bringing in additional "quantities." The civil rights of the WNT was not violated by the Federation, and the parties have worked together in good faith to address the inequities through the guaranteed compensation and additional "value" bonuses.

 

[EOTL]

The point is...you can't strictly look at this from the perspective of they signed a contract so they agreed to the pay they received. That isn't the way civil rights works.

@EOTL, @Keepermom2, @es_surf and @texanincali,

I don't think many would argue that the landscape facing women in sports is one of inequality. Inequality of revenue, pay, opportunity, etc.

We seem to be going around and round with the various arguments either accepting or not accepting an important fact, which is:

"Did the Federation and WNT attempt to address the inequality issue in 2011/12? If so, was it legally sufficient?"

I look at the facts and conclude that in 2011/12 the Federation and WNT worked together and attempted to craft an agreement that would balance the inequities of the women's game. Both parties recognized the inequities and concluded that if the WNT adopted the same pay structure as the MNT the women would have compensation swings that would be difficult to manage. This reality was due to the fact that the MNT players were solely under a performance for pay structure AND were being paid a living wage through their play in professional leagues. The women did not have a league (at the time) and wanted a different deal.

They received a different deal, the principal difference being they became salaried employees and in exchange for a $100k salary and benefits, agreed to take a lower amount of "bonus" compensation and received additional bonuses to if they played in the new NWSL.

Under the facts and circumstances facing both the USSF and WNT, I conclude the concessions and resulting CBA was legally sufficient to address the inequities facing the women's national team members, thus, the CBA did not violate the civil rights of the players. Moreover, this fact is borne out by the indisputable fact that during the period the WNT players brought their lawsuit, the WNT players were actually paid more than the MNT because the MNT failed to qualify for various bonuses due in large part to the MNT's failure to qualify for the World Cup.

There was not a prima facia "equal pay act" violation because the men were actually paid less. Moreover, I believe that even if the men were paid more, the Federation has an relatively air-tight affirmative defense under the "quality and quantity" exceptions to the Act.

Reasonable minds can look at the negotiations differently, but the fact the USWNT players were given a salary and NWSL bonus and health care, severance, child care, and many other benefits that the MNT did not receive makes me believe the Federation and WNT negotiated in good faith and there was no malice or intent to pay the women's less by taking advantage of an unequal bargaining position, rather, it was to pay them differently in an attempt to cure the inequities of the women's game versus the men's game.

"Did the Federation and WNT attempt to address the increasing "value" the WNT brought to the Federation in 2016/17? If so, was it legally sufficient?"

I conclude they did because the women successfully negotiated for the similar benefits they received in the 2011/12 CBA and negotiated for additional bonuses relating to ticket sales, viewership and exceeding revenue targets.

In short, the current CBA includes language that rewards the WNT for bringing in additional "quantities." The civil rights of the WNT was not violated by the Federation, and the parties have worked together in good faith to address the inequities through the guaranteed compensation and additional "value" bonuses.

As I said earlier, the Equal Pay Act claim was always a weak one for the reasons you state. The elements of that claim do not fit well for their situation. That is not an argument I am making. The Title VII claim is the better one, although it doesn’t seem like the WNT lawyers understood that as early as they should have. It makes sense that they thought the EPA claim would be the better one because they certainly believed (as it turns out wrongly) that the women made less per game and that this would be a really simple and straightforward slam dunk because that would only require the adding up payments and then dividing it by games. You can see the mistake the WNT lawyers made very clearly when you look at their experts and the focus of their reports. But the Title VII claim requires a lot more detailed expert analysis and requires dragging in advertisers, which is often hard to do and risks killing the golden goose. They failed to do that work, and have at least temporarily paid the price for it.

Your conclusion that you believe the CBA did not violate their civil rights is certainly your opinion and you are entitled to that. But that does not mean the WNT are stuck with it because your opinion is that it’s fair enough. It seems that you are now saying you believe the CBA is fair, which is a point that merits legitimate discussion. But that is different than the argument you and others were making earlier, which is that it doesn’t matter whether the CBA discriminates against the WNT, they’re stuck with it because that’s what they agreed to. That latter argument is unequivocally b.s. and wrong. It’s just an excuse to avoid having to address the real issue, which is whether the terms are discriminatory and whether USSF was able to use its superior bargaining position over the WNT compared to the MNT to negotiate those deals by virtue of the fact that they are women. Because things start to go downhill fast for ya’ll when you do that. Even the court cited admissions by USSF in that regard that are very damaging.

Because reasonable minds may differ as you concede, that pretty much sums up why this case should go to a jury. Regardless, whether the WNT can fit their square facts into the round hole of an Equal Pay Act claim ignores the fundamental moral issue, which is whether the women should receive much more money than they currently do relative to the men, as it is undisputed that that they are responsible for far more of USSF’s profit.

 

[EOTL]

My favorite part of this discussion is how offended people get over the concept that not only do the WNT deserve “equal pay”, but they deserve a lot more pay. The concept that the WNT players are so much more valuable to USSF than the MNT players is something they assume cannot possibly be true.

The WNT lawyers completely screwed up by asserting the EPA claim at all, or at least leading off with it. By doing so, they framed the entire argument to their own detriment - which is that they are entitled to be paid the same amount - because an EPA claim focuses on whether they are paid the same amount, not whether they are paid for their actual value. Instead, the argument should have been that they should be paid based on the proportionate value they provide to USSF. the lawyers should have dismissed the EPA claim the minute it became clear that they were paid a little more overall.

Paying someone “equally” for either discrimination or moral purposes does not mean paying the same amount. It means paying people appropriately based on the value they provide. If, for example, a company pays a male and female sales person the same amount, but only because the man’s commission rate is higher, there is no EPA claim, but it is still problematic under Title VII. That’s the argument the WNT lawyers should have hammered home.

 

[Keepermom2]

As I said earlier, the Equal Pay Act claim was always a weak one for the reasons you state. The elements of that claim do not fit well for their situation. That is not an argument I am making. The Title VII claim is the better one, although it doesn’t seem like the WNT lawyers understood that as early as they should have. It makes sense that they thought the EPA claim would be the better one because they certainly believed (as it turns out wrongly) that the women made less per game and that this would be a really simple and straightforward slam dunk because that would only require the adding up payments and then dividing it by games. You can see the mistake the WNT lawyers made very clearly when you look at their experts and the focus of their reports. But the Title VII claim requires a lot more detailed expert analysis and requires dragging in advertisers, which is often hard to do and risks killing the golden goose. They failed to do that work, and have at least temporarily paid the price for it.

Your conclusion that you believe the CBA did not violate their civil rights is certainly your opinion and you are entitled to that. But that does not mean the WNT are stuck with it because your opinion is that it’s fair enough. It seems that you are now saying you believe the CBA is fair, which is a point that merits legitimate discussion. But that is different than the argument you and others were making earlier, which is that it doesn’t matter whether the CBA discriminates against the WNT, they’re stuck with it because that’s what they agreed to. That latter argument is unequivocally b.s. and wrong. It’s just an excuse to avoid having to address the real issue, which is whether the terms are discriminatory and whether USSF was able to use its superior bargaining position over the WNT compared to the MNT to negotiate those deals by virtue of the fact that they are women. Because things start to go downhill fast for ya’ll when you do that. Even the court cited admissions by USSF in that regard that are very damaging.

Because reasonable minds may differ as you concede, that pretty much sums up why this case should go to a jury. Regardless, whether the WNT can fit their square facts into the round hole of an Equal Pay Act claim ignores the fundamental moral issue, which is whether the women should receive much more money than they currently do relative to the men, as it is undisputed that that they are responsible for far more of USSF’s profit.

Like wasn't enough...."Bravo" is more appropriate.

 

[MWN]

As I said earlier, the Equal Pay Act claim was always a weak one for the reasons you state. The elements of that claim do not fit well for their situation. That is not an argument I am making. The Title VII claim is the better one, although it doesn’t seem like the WNT lawyers understood that as early as they should have. It makes sense that they thought the EPA claim would be the better one because they certainly believed (as it turns out wrongly) that the women made less per game and that this would be a really simple and straightforward slam dunk because that would only require the adding up payments and then dividing it by games. You can see the mistake the WNT lawyers made very clearly when you look at their experts and the focus of their reports. But the Title VII claim requires a lot more detailed expert analysis and requires dragging in advertisers, which is often hard to do and risks killing the golden goose. They failed to do that work, and have at least temporarily paid the price for it.

Your conclusion that you believe the CBA did not violate their civil rights is certainly your opinion and you are entitled to that. But that does not mean the WNT are stuck with it because your opinion is that it’s fair enough. It seems that you are now saying you believe the CBA is fair, which is a point that merits legitimate discussion. But that is different than the argument you and others were making earlier, which is that it doesn’t matter whether the CBA discriminates against the WNT, they’re stuck with it because that’s what they agreed to. That latter argument is unequivocally b.s. and wrong. It’s just an excuse to avoid having to address the real issue, which is whether the terms are discriminatory and whether USSF was able to use its superior bargaining position over the WNT compared to the MNT to negotiate those deals by virtue of the fact that they are women. Because things start to go downhill fast for ya’ll when you do that. Even the court cited admissions by USSF in that regard that are very damaging.

Because reasonable minds may differ as you concede, that pretty much sums up why this case should go to a jury. Regardless, whether the WNT can fit their square facts into the round hole of an Equal Pay Act claim ignores the fundamental moral issue, which is whether the women should receive much more money than they currently do relative to the men, as it is undisputed that that they are responsible for far more of USSF’s profit.

I completely disagree with your analysis.

"Reasonable minds can look at the negotiations differently." Reasonable minds could not look at the fact that the women are paid a salary, have a deal with less risk in favor of guaranteed compensation and were actually paid more (during the relevant period) any differently, that would be unreasonable. These facts are undisputed and fatal to both the EPA and Title VII claims.

But let's say for the sake of argument that the WNT was actually paid less because they didn't make their bonus money OR the USMNT made their bonus money. Let's pretend the WNT made a prima facia case under Title IV and the EPA. They still lose their compensation claim, which is the meat of their suit.

There is no dispute that the MNT is compensated using an "incentive system." There is also no dispute that the MNT does not receive a salary and their compensation is based largely on participation in camps, games and wining tournaments.

Under both the EPA and Title VII the law requires the discriminatory conduct to be viewed through a historical lens ... what were the facts being relied upon to justify the disparate pay the years leading up to 2011/12. It would be improper to impute today's facts or arguments to the 2012 CBA. At the time that the 2011/12 CBA's was negotiated, the USMNT objectively brought in more revenue to the USSF. The WNT had just come in 2nd in the 2011 WC, and FIFA was paying a total of $5.8M in prize money, with the winner receiving $1M. The USWNT generated much less in prize money, as well as advertising and marketing dollars.

Here, the Federation had really good facts on their side.

Under TItle VII and the EPA we look at all compensation. Starting at "base compensation" and then "non base compensation."

Base Compensation. Women receive $100k salary and about $65k for NWSL, Men receive $0. No Discrimination against women ... arguably discrimination against MNT.

Non-Base Compensation. We are going to have to figure out a discounted value for the $165k of base compensation plus benefits paid to the women, which is a big problem for the WNT. And then see if the discounted "bonus" structure is objectively fair using 2011/12 facts.

While figuring out the discount value of the guaranteed commission, we nonetheless have to recognize that an employer can justify a compensation disparity by proving that the higher paid employee generates more revenue for the employer than the lower paid employee. See, e.g., Byrd v. Ronayne, 61 F.3d 1026, 1034 (1st Cir. 1995) (higher compensation for male attorney justified because he generated substantially greater revenue for law firm). But, we need to do this with facts from the time and not today's facts.

Title VII adopts the EPA's four affirmative defenses, which provide a sex-based compensation difference in substantially equal jobs is justified if it is based on:

• a seniority system;
• a merit system;
• a system which measures earnings by quantity or quality of production ("incentive system"); or
• any other factor other than sex.

The fatal flaw in the position/argument of the USWNT is that the MNT's incentive system was better than their incentive system because the Federation measured the bonus to the MNT based on quantity/quality of production (more prize money = more bonus). If the USWNT's union had not demanded guaranteed compensation (i.e. no salary and NWSL bonus) they would have and argument, but their union negotiated guaranteed pay killing their bonus discrimination argument.

The other kicker is that under Title VII, they are suing only 1 of the 2 parties that allegedly wronged them. An employer's assertion that a compensation differential is attributable to a collective bargaining agreement does not constitute a defense under the EPA. If the union contributed to the creation of a compensation differential, the union should be added as a respondent. The EPA specifically provides that no labor organization "shall cause or attempt to cause" a covered employer to violate the statute. 29 U.S.C. 206(d)(2). By asking for a salary and and NWSL bonus, the Players Association opened the door to discounted bonuses and contributed to the potential compensation differential. Looks like the USWNT Players Association is going to get dragged into a lawsuit by its members.

Fast forward to the 2016/17 CBA, the Player's Association received some additional concessions from the Federation, but the facts in 2016/17 must be used, not the 2019 circumstances.

The payment of guaranteed compensation is simply fatal to their claims under Title VII and the EPA, especially because the bonuses are tied to "quantity and quality" which are affirmative defenses under both the EPA and Title VII.

EDIT: I don't believe I ever stated this: "But that is different than the argument you and others were making earlier, which is that it doesn’t matter whether the CBA discriminates against the WNT, they’re stuck with it because that’s what they agreed to." My position has always been the guaranteed compensation negotiated in the 2012 and 2017 CBA's created a different deal that was non discriminatory on its face (at least to the WNT) and is fatal to the claims because the USWNT traded risk for certainty.

 

[Keepermom2]

I completely disagree with your analysis.

"Reasonable minds can look at the negotiations differently." Reasonable minds could not look at the fact that the women are paid a salary, have a deal with less risk in favor of guaranteed compensation and were actually paid more (during the relevant period) any differently, that would be unreasonable. These facts are undisputed and fatal to both the EPA and Title VII claims.

But let's say for the sake of argument that the WNT was actually paid less because they didn't make their bonus money OR the USMNT made their bonus money. Let's pretend the WNT made a prima facia case under Title IV and the EPA. They still lose their compensation claim, which is the meat of their suit.

There is no dispute that the MNT is compensated using an "incentive system." There is also no dispute that the MNT does not receive a salary and their compensation is based largely on participation in camps, games and wining tournaments.

Under both the EPA and Title VII the law requires the discriminatory conduct to be viewed through a historical lens ... what were the facts being relied upon to justify the disparate pay the years leading up to 2011/12. It would be improper to impute today's facts or arguments to the 2012 CBA. At the time that the 2011/12 CBA's was negotiated, the USMNT objectively brought in more revenue to the USSF. The WNT had just come in 2nd in the 2011 WC, and FIFA was paying a total of $5.8M in prize money, with the winner receiving $1M. The USWNT generated much less in prize money, as well as advertising and marketing dollars.

Here, the Federation had really good facts on their side.

Under TItle VII and the EPA we look at all compensation. Starting at "base compensation" and then "non base compensation."

Base Compensation. Women receive $100k salary and about $65k for NWSL, Men receive $0. No Discrimination against women ... arguably discrimination against MNT.

Non-Base Compensation. We are going to have to figure out a discounted value for the $165k of base compensation plus benefits paid to the women, which is a big problem for the WNT. And then see if the discounted "bonus" structure is objectively fair using 2011/12 facts.

While figuring out the discount value of the guaranteed commission, we nonetheless have to recognize that an employer can justify a compensation disparity by proving that the higher paid employee generates more revenue for the employer than the lower paid employee. See, e.g., Byrd v. Ronayne, 61 F.3d 1026, 1034 (1st Cir. 1995) (higher compensation for male attorney justified because he generated substantially greater revenue for law firm). But, we need to do this with facts from the time and not today's facts.

Title VII adopts the EPA's four affirmative defenses, which provide a sex-based compensation difference in substantially equal jobs is justified if it is based on:

• a seniority system;
• a merit system;
• a system which measures earnings by quantity or quality of production ("incentive system"); or
• any other factor other than sex.

The fatal flaw in the position/argument of the USWNT is that the MNT's incentive system was better than their incentive system because the Federation measured the bonus to the MNT based on quantity/quality of production (more prize money = more bonus). If the USWNT's union had not demanded guaranteed compensation (i.e. no salary and NWSL bonus) they would have and argument, but their union negotiated guaranteed pay killing their bonus discrimination argument.

The other kicker is that under Title VII, they are suing only 1 of the 2 parties that allegedly wronged them. An employer's assertion that a compensation differential is attributable to a collective bargaining agreement does not constitute a defense under the EPA. If the union contributed to the creation of a compensation differential, the union should be added as a respondent. The EPA specifically provides that no labor organization "shall cause or attempt to cause" a covered employer to violate the statute. 29 U.S.C. 206(d)(2). By asking for a salary and and NWSL bonus, the Players Association opened the door to discounted bonuses and contributed to the potential compensation differential. Looks like the USWNT Players Association is going to get dragged into a lawsuit by its members.

Fast forward to the 2016/17 CBA, the Player's Association received some additional concessions from the Federation, but the facts in 2016/17 must be used, not the 2019 circumstances.

The payment of guaranteed compensation is simply fatal to their claims under Title VII and the EPA, especially because the bonuses are tied to "quantity and quality" which are affirmative defenses under both the EPA and Title VII.

EDIT: I don't believe I ever stated this: "But that is different than the argument you and others were making earlier, which is that it doesn’t matter whether the CBA discriminates against the WNT, they’re stuck with it because that’s what they agreed to." My position has always been the guaranteed compensation negotiated in the 2012 and 2017 CBA's created a different deal that was non discriminatory on its face (at least to the WNT) and is fatal to the claims because the USWNT traded risk for certainty.

I obviously do not have a legal background but the fact that

 

[Keepermom2]

I obviously do not have a legal background but the fact that

I do not know why I can't delete mistakes anymore.

 

[espola]

I do not know why I can't delete mistakes anymore.

It's one fo the recent improvements to the website. To get more control (maybe) pony up for a premier rmembership

https://www.socalsoccer.com/account/upgrades

 

[Keepermom2]

From reading the information below, and the judge's ruling, I am perplexed and feel like there is some missing information. I don't understand why Rapinoe and the team's attorney believe they "asked to be under the men's contract, and it was repeatedly refused to us".

1. Forbes May 4, 2020:

However, that’s not the way the women see it. On CBS This Morning, team co-captain Megan Rapinoe contradicted the judge’s assertion that the women turned down the men’s deal, “We asked to be under the men’s contract, and it was repeatedly refused to us, not only in the structure but in the total compensation. If we were under that contract, we would have earned at least three times higher.”

Women Generated More Revenue-Although the lack of revenue generation is often an argument for why female athletes make far less than their male counterparts, that argument doesn’t seem to apply in this case. The wildly successful female soccer players brought in more money than their male counterparts, as pointed out in the lawsuit, “during the period relevant to this case, the WNT earned more in profit and/or revenue than the MNT.” The judge also did not seem to give any credibility to U.S. Soccer’s claim that men deserve more money because men have more ability, strength and speed.

2. https://www.cbsnews.com/news/uswnt-...o-appeal-judges-dismissal-of-equal-pay-claim/
I
"Levinson took issue with that reasoning, writing, "The argument that women gave up a right to equal pay by accepting the best collective bargaining agreement possible...in response to the Federation's refusal to put equal pay on the table is not a legitimate reason for continuing to discriminate against them."

3. From Law-llc.com 2019:

However, even if the Equal Pay Act claim fails, the USWNT members can rely on Title VII, 42 U.S.C. § 2000e, which does not have an “equal work” requirement. Instead, the employee must establish that she, as a woman, is not being paid equally for similar work. As a trade-off for this relaxed standard, though, the employee must show that the employer intended to discriminate. The comment by the USSF official stating that, “market realities are such that the women do not deserve to be paid equally to the men,” could be an example of such intent.

Just some additional facts FYI from Yahoo Finance July 9, 2019...
In addition, Nike CEO Mark Parker recently disclosed on an earnings call that the U.S. Women's home jersey is “now the No. 1 soccer jersey, men's or women's, ever sold on Nike.com in one season.”

"U.S. Soccer sponsorship revenue grew 25% between 2015 and 2016 after the USWNT won the 2015 Women’s World Cup, but U.S. Soccer sells sponsorships and broadcasting deals in a bundle, so we can’t separate how much of that revenue comes from the men vs the women."

 

[Ellejustus]

What would we do without women in soccer? I'm sad how disrespected they have been by the men in soccer and how young girls were over used in club soccer. Selfish and greedy. Listen, my dd is playing soccer right now because she was inspired by the WNT players. Most families I know are spending $15,000+ a year ((according to Hope Solo and a few others I know on here)). I would also say were all here on the forum 100% because of how awesome girls soccer is. Why? Because they win!!

 

[EOTL]

I completely disagree with your analysis.

"Reasonable minds can look at the negotiations differently." Reasonable minds could not look at the fact that the women are paid a salary, have a deal with less risk in favor of guaranteed compensation and were actually paid more (during the relevant period) any differently, that would be unreasonable. These facts are undisputed and fatal to both the EPA and Title VII claims.

But let's say for the sake of argument that the WNT was actually paid less because they didn't make their bonus money OR the USMNT made their bonus money. Let's pretend the WNT made a prima facia case under Title IV and the EPA. They still lose their compensation claim, which is the meat of their suit.

There is no dispute that the MNT is compensated using an "incentive system." There is also no dispute that the MNT does not receive a salary and their compensation is based largely on participation in camps, games and wining tournaments.

Under both the EPA and Title VII the law requires the discriminatory conduct to be viewed through a historical lens ... what were the facts being relied upon to justify the disparate pay the years leading up to 2011/12. It would be improper to impute today's facts or arguments to the 2012 CBA. At the time that the 2011/12 CBA's was negotiated, the USMNT objectively brought in more revenue to the USSF. The WNT had just come in 2nd in the 2011 WC, and FIFA was paying a total of $5.8M in prize money, with the winner receiving $1M. The USWNT generated much less in prize money, as well as advertising and marketing dollars.

Here, the Federation had really good facts on their side.

Under TItle VII and the EPA we look at all compensation. Starting at "base compensation" and then "non base compensation."

Base Compensation. Women receive $100k salary and about $65k for NWSL, Men receive $0. No Discrimination against women ... arguably discrimination against MNT.

Non-Base Compensation. We are going to have to figure out a discounted value for the $165k of base compensation plus benefits paid to the women, which is a big problem for the WNT. And then see if the discounted "bonus" structure is objectively fair using 2011/12 facts.

While figuring out the discount value of the guaranteed commission, we nonetheless have to recognize that an employer can justify a compensation disparity by proving that the higher paid employee generates more revenue for the employer than the lower paid employee. See, e.g., Byrd v. Ronayne, 61 F.3d 1026, 1034 (1st Cir. 1995) (higher compensation for male attorney justified because he generated substantially greater revenue for law firm). But, we need to do this with facts from the time and not today's facts.

Title VII adopts the EPA's four affirmative defenses, which provide a sex-based compensation difference in substantially equal jobs is justified if it is based on:

• a seniority system;
• a merit system;
• a system which measures earnings by quantity or quality of production ("incentive system"); or
• any other factor other than sex.

The fatal flaw in the position/argument of the USWNT is that the MNT's incentive system was better than their incentive system because the Federation measured the bonus to the MNT based on quantity/quality of production (more prize money = more bonus). If the USWNT's union had not demanded guaranteed compensation (i.e. no salary and NWSL bonus) they would have and argument, but their union negotiated guaranteed pay killing their bonus discrimination argument.

The other kicker is that under Title VII, they are suing only 1 of the 2 parties that allegedly wronged them. An employer's assertion that a compensation differential is attributable to a collective bargaining agreement does not constitute a defense under the EPA. If the union contributed to the creation of a compensation differential, the union should be added as a respondent. The EPA specifically provides that no labor organization "shall cause or attempt to cause" a covered employer to violate the statute. 29 U.S.C. 206(d)(2). By asking for a salary and and NWSL bonus, the Players Association opened the door to discounted bonuses and contributed to the potential compensation differential. Looks like the USWNT Players Association is going to get dragged into a lawsuit by its members.

Fast forward to the 2016/17 CBA, the Player's Association received some additional concessions from the Federation, but the facts in 2016/17 must be used, not the 2019 circumstances.

The payment of guaranteed compensation is simply fatal to their claims under Title VII and the EPA, especially because the bonuses are tied to "quantity and quality" which are affirmative defenses under both the EPA and Title VII.

EDIT: I don't believe I ever stated this: "But that is different than the argument you and others were making earlier, which is that it doesn’t matter whether the CBA discriminates against the WNT, they’re stuck with it because that’s what they agreed to." My position has always been the guaranteed compensation negotiated in the 2012 and 2017 CBA's created a different deal that was non discriminatory on its face (at least to the WNT) and is fatal to the claims because the USWNT traded risk for certainty.

OK that is just too long even for me. A couple points.

1. If you need to do a historical analysis dating back to a 2010/11 CBA to rationalize why you believe they are being treated equally in 2020, well, that pretty much speaks for itself.

2. When you say that “Under Title VII...we look at compensation”, that is also flat out wrong to the extent you suggest that is the only thing you look at. Even the court recognized the ridiculousness of that argument. Specifically, it allowed the discrimination claim to proceed on non-compensation issues, including the MNT flying charter and getting grass fields. Notably, these things were just as discriminatory in 2010/11 - looking through the “historical lens” that you find so compelling - as they are now. Stated differently, if you are going to look “through a historical lens”, you can’t selectively choose the things you like and ignore the pervasive discrimination that occurred historically. You need to address how the WNT was forced to endure awful conditions in 2010/11. You need to address how the USSF sustained a system that did not invest in marketing (or anything) for the WNT like they did MNT, thereby continuing a pattern in which the WNT was not provided equal opportunity to earn revenue, yet they did it anyway though their hard work over many years and despite the systematic discrimination against the WNT over time.

3. Yes, the women traded risk for certainty. But they had to do so because they have always been discriminated against, and still are, based on the leverage USSF has been able to exert in CBA negotiating based on their gender. Making the best out of being mistreated and discriminated against since the inception of the WNT kinda leaves you with no choice. I do have a question for you here. How could the issue about charter flights and playing on safer grass be discriminatory since, under your theory, they could have just bargained for that in their 2010/11 and subsequent CBAs?

Since the first three main arguments you made are complete rubbish, I decided to stop wasting my time with the others.

 

[MWN]

From reading the information below, and the judge's ruling, I am perplexed and feel like there is some missing information. I don't understand why Rapinoe and the team's attorney believe they "asked to be under the men's contract, and it was repeatedly refused to us".

1. Forbes May 4, 2020:

However, that’s not the way the women see it. On CBS This Morning, team co-captain Megan Rapinoe contradicted the judge’s assertion that the women turned down the men’s deal, “We asked to be under the men’s contract, and it was repeatedly refused to us, not only in the structure but in the total compensation. If we were under that contract, we would have earned at least three times higher.”
...

Its a PR ploy. Their position is and has always been that they want "guaranteed compensation" (roughly 100k) and "NWSL" compensation (roughly 65k) and AND the same bonus structure as the men. So when you here the USWNT team and their lawyers say "We wanted the same deal." They are simply referring to the bonus plan the men get, but refuse to lose the guaranteed compensation element of their deal.

What you will never hear from Rapinoe and the plaintiffs is "We asked to be under the same deal as the MNT, including the no guaranteed compensation," because that would be false. The other problem the WNT has is portions of the Men's bonus structure is tied to the Prize money, so what the women are really saying is we wanted the "Guaranteed compensation and Bonus that the Men would receive under the Men's World Cup prize structure, even though the prize money is much less in the Women's World Cup structure pursuant to the FIFA payouts."

	MEN (Per Collective Bargain)	WOMEN (Per Collective Bargain)
SALARY (National Team Contract) 17 Players (16 in 2021)	$0.00 (No US Soccer Salary)	$100,000
MLS/NWSL Bonus by US Soccer	$0.00 (No US Soccer Bonus)	$67,500 (Tier 1) $62,500 (Tier 2)
Call Ups - Non Contract Players	$3,500 - $4,000 per call-up (8+ Camps)	$3,500 - $4,000 per call-up (8+ Camps)
World Cup Roster Bonus	$68,750.00	$37,500
Win Against Non Top Teams	$9,375 (Outside Top 25)	$5,250 (Outside Top 8)
Loss Against Non Top Team	$5,000	$0.00
Game Attendance $ per ticket	$1.50 to Union	$1.50 + 7.5% to Union above 17,000 txs.
Game Sold Out	No Bonus	Bonus
Viewership Bonus	No Bonus	Bonus (if increase 10+%)

Just so we are clear, the foundation of the deal the women are under was negotiated back in 2011/12 and then renegotiate with the some additional elements. So we have to look at the facts/circumstances at the time.

 

[MWN]

OK that is just too long even for me. A couple points.

1. If you need to do a historical analysis dating back to a 2010/11 CBA to rationalize why you believe they are being treated equally in 2020, well, that pretty much speaks for itself.

2. When you say that “Under Title VII...we look at compensation”, that is also flat out wrong to the extent you suggest that is the only thing you look at. Even the court recognized the ridiculousness of that argument. Specifically, it allowed the discrimination claim to proceed on non-compensation issues, including the MNT flying charter and getting grass fields. Notably, these things were just as discriminatory in 2010/11 - looking through the “historical lens” that you find so compelling - as they are now. Stated differently, if you are going to look “through a historical lens”, you can’t selectively choose the things you like and ignore the pervasive discrimination that occurred historically. You need to address how the WNT was forced to endure awful conditions in 2010/11. You need to address how the USSF sustained a system that did not invest in marketing (or anything) for the WNT like they did MNT, thereby continuing a pattern in which the WNT was not provided equal opportunity to earn revenue, yet they did it anyway though their hard work over many years and despite the systematic discrimination against the WNT over time.

3. Yes, the women traded risk for certainty. But they had to do so because they have always been discriminated against, and still are, based on the leverage USSF has been able to exert in CBA negotiating based on their gender. Making the best out of being mistreated and discriminated against since the inception of the WNT kinda leaves you with no choice. I do have a question for you here. How could the issue about charter flights and playing on safer grass be discriminatory since, under your theory, they could have just bargained for that in their 2010/11 and subsequent CBAs?

Since the first three main arguments you made are complete rubbish, I decided to stop wasting my time with the others.

@EOTL, I'm not going to allow you to misquote or misrepresent what I wrote without calling you on it.

Concerning point 1: Yes, when we are asking whether the deal was in violation of Title VII or the EPA we look at the circumstances at the time. Here the deal was made in 2010/11 AND the "quality/quantity" affirmative defense the Federation has arose at that time. The facts giving rise to the affirmative defense requires a historical analysis. Whether the deal is objectively unfair now (2020) is not relevant for the lawsuit and outside the time period. The women and federation can sit down at the negotiating table and renegotiate at any time or wait for the contract to end and restart.

Concerning point 2: My comment was limited to the "unequal compensation" claim, which is and has been the entirety of the discussion/debate. The other claims are proceeding so not relevant to our discussion. What I wrote was "Under TItle VII and the EPA we look at all compensation. Starting at "base compensation" and then "non base compensation." Attempting to misquote by omitting the "and the EPA" which qualified the statement to compensation analysis is misleading on your part.

Concerning point 3: The issues of charter flights and training and playing conditions remain the subject of the lawsuit and outside this discussion (see point 2). Whether the Federation engaged in discriminatory conduct is subject to disputed testimony. The USWNT alleged the MNT received charter flights and they didn't which was discriminatory. The Federation presented evidence that the reason the MNT flew by charter was it was necessary to meet rest and timing requirements for high profile games (I recall the Mexico game was a 3 or 4 day period). I don't know if the women were in similar circumstances, but that is for the lawyers and witnesses. As far as playing on artificial turf in the World Cup (Canada), that was a FIFA call, not the Federation, but I recall the women refusing to play on artificial turf in Hawaii so its possible the WNT has some traction here.