On Monday, U.S. District Judge Gary Klausner granted final approval of a partial class action settlement resolving workplace conditions brought by Alex Morgan, Megan Rapinoe, Carli Lloyd and Becky Sauerbrunn and other U.S. women’s soccer players against U.S. Soccer. The litigation isn’t over yet, though, as the players plan to pursue an appeal of an earlier ruling from Judge Klausner about their pay.
Monday’s move had been expected since the two sides agreed to the partial settlement last December. “No objections have been made,” Judge Klausner wrote in a filing obtained by Sportico, “and there are no objectors present.”
The approved settlement concludes claims involving travel, hotel accommodations, venue selection and staff size. The players have alleged numerous forms of unequal treatment. For example, the women’s team has typically flown commercial while the men’s team has been seated on chartered flights. Also, in a 2019 court filing, the players charged, “U.S. Soccer has repeatedly forced the WNT to play on artificial turf, including where the turf created unsafe conditions or increased the risk of injury to WNT players, while U.S. Soccer has not scheduled MNT games at locations with artificial turf.” The players insist that U.S. Soccer has treated them inferiorly on the basis of their sex and therefore in violation of the Equal Pay Act and Title VII of the Civil Rights Act.
While the players and U.S. Soccer have now settled workplace-related claims, the two sides remain in litigation over pay-related claims. They have offered dueling economic analyses on whether, and to what degree, WNT players earn less than MNT players.
Last May, Judge Klausner granted summary judgment to U.S. Soccer on the pay-related claims. His basic reasoning: WNT players, through their union, bargained the pay structure at issue in their case. While MNT players are generally compensated on a pay-for-play system, WNT players earn more through guarantees. Although the two sides disagree about the impact of this system, WNT players maintain they are denied opportunities to earn in ways that reflect merit and success (WNT has won four of the eight Women’s World Cup championships).
The resolution of the non-pay claims enables WNT players to pursue an appeal of Judge Klausner’s ruling to the U.S. Court of Appeals for the Ninth Circuit.
“We intend,” USWNT spokeswoman Molly Levinson said in a statement, “to appeal the Court’s equal pay decision, which does not account for the fact that women players have been paid at lesser rates than men who do the same job. We are committed as ever to our work to achieve the equal pay that we legally deserve and our focus is on the future and ensuring we leave the game a better place for the next generation of women who will play for this team and our country.”
An appeal would raise an interesting set of ideological issues. On one hand, a judge might agree that the players should be paid more and that sex could be a key explanation for pay disparities. On the other hand, that same judge might be reluctant to reject terms that a labor union negotiated, especially since the case would become precedent for other (and non-sports) union-management contracts.
Should the appeal occur, it would lead to the empaneling of a three-judge panel. The appeal process would likely last well into 2022 or 2023. Before the pandemic began, the Ninth Circuit estimated that 15 to 32 months ordinarily pass from the date of the filing of a civil appeal to a decision. The coronavirus pandemic has only slowed litigation, especially civil litigation.
There’s a decent chance the two sides will reach a resolution long before any appeal is decided. Their current CBA is set to expire on Dec. 31. As they discuss a new CBA, they might find a way to resolve pay-related claims.
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