Equal pay challenge for the United States women’s football team

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By now you have no doubt heard of the United States women’s football team’s challenge to their salary arrangement. In the spring of 2019, the players sued the United States Football Federation (“USSF”), alleging they had been unfairly compensated against the men’s football team – a dispute that has been going on since at least 2017. The Federal court dismissed the summary judgment salary claims, ruling that women were not, in fact, paid less than men per game played.

Recently, the players appealed the decision of the federal court to the 9th Circuit. In its opposition brief, the USSF argued that women cannot challenge a payment schedule that they have expressly negotiated and agreed to through a collective agreement.

The case presents two very interesting and important questions about the equitable compensation landscape. The first question is whether an individual can dispute his salary as unequal when he expressly negotiated and negotiated that salary, especially when, as here, he was fully aware of which employees of the opposite sex were being paid.

The second question is to what extent are “market realities” (as the USSF called them) allowed to play a role in the analysis of the Equal Pay Act as a legitimate employment factor. other than sex (one of the legal exceptions). For example, in 2018 and 2019 FIFA paid $ 38 million to the winner of the Men’s World Cup, but only $ 4 million to the winner of the Women’s World Cup. That is, in the international market, men’s football competitions (in general, not just the US men’s team in particular) sell more tickets and at higher prices, have more expensive sponsorship deals and generate more income.

The USSF argues that due to the potential to generate more income from their competitions (even if they end up losing and fail to generate that income), men will earn more in their contracts via victory bonuses. In response, the women argue that they have, in fact, generated more income than the men’s team in recent years, but do not have the same bonus opportunities.

It will be interesting to see how the 9th Circuit grapples with these two issues, especially as the result can have lasting impacts for individual employees making equal pay claims. For example, would wage transparency and negotiated wages constitute a strong defense against subsequent demands for equal pay? In addition, income generation or even potential Is income generation a strong defense even when actual performance suggests that the lowest paid employee generates more income than the male employee?

The 9th Circuit will likely hear pleadings on the appeal in early 2022.

{The players of the United States soccer team have sought a collective bargaining agreement that prioritizes guaranteed wages and benefits over potentially higher bonuses, and can now not pursue demands for “equal pay. “On the basis of a compensation structure they rejected, argued the American Football Federation. . . .

© 1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC All rights reserved.Revue nationale de droit, volume XI, number 266

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