Players for the U.S. women’s national team may have been dealt a blow by a judge’s ruling in their gender discrimination lawsuit against the U.S. Soccer Federation but the case is far from over.
The women have vowed to keep up the fight, encouraged by the likes of Joe Biden, Billie Jean King and even the men's national team.
“This is just a setback,” King said when asked what she would tell the team. “There’s so many of these ups and downs. Just keep learning from it, keep going for it. You’re still such a great influence, not only in soccer, but for equality for everyone.”
King, who was calling for equitable prize money in tennis in the 1970s, once famously proclaimed: “Everyone thinks women should be thrilled when we get crumbs, and I want women to have the cake, the icing and the cherry on top, too.”
The players sued the federation last year, claiming they have not been paid equally under their collective bargaining agreement to what the men’s national team receives under its labor deal. They asked for more than $66 million in damages under the Equal Pay Act and Title VII of the Civil Rights Act of 1964.
The federal judge threw out the players' claim of discriminatory pay Friday in a surprising loss for the defending World Cup champions. U.S. District Judge R. Gary Klausner said the women rejected a pay-to-play structure like the men's agreement and accepted greater base salaries and benefits.
But he allowed aspects of their allegations of discriminatory working conditions to go forward.
The trial remains scheduled for June 16 in federal court in Los Angeles.
Players have vowed to appeal the judge's decision.
There are several legal options. Players could seek to overturn Friday's decision at the 9th U.S. Circuit Court of Appeals, and could even discuss with the USSF the possibility of a joint application for a stay pending appeal. They could proceed with a trial limited to working conditions such as flights, hotels and medical staff, then appeal Friday's ruling.
Or the sides could seek to settle, perhaps as part of a deal to replace and extend the current collective bargaining agreement, which expires on Dec. 31, 2021.
Biden, the presumptive Democratic presidential nominee, went to Twitter this weekend to encourage the players.
The players’ association for the men’s national team also released a statement Monday expressing support.
“For a year and a half the USMNT players have made proposals to the federation that would achieve equal pay for the USMNT and USWNT players,” the statement said. “We understand the WNT players plan to appeal last week’s decision and we support them.”
Steven A. Bank, a professor at UCLA, said he was expecting Klausner's decision on the summary judgment to focus the case but not to the degree it did.
“Frequently, judges will do that in order to narrow down the issues, but because it also spurs the parties to settle by essentially using a heavy hand and saying, ‘Hey, a lot of these things you have is fluff, so let’s get rid of this, and neither of you have as great a case that you think you do.' So I’m not surprised that there was some level of summary judgment granted and some level denied,” he said. “But I was surprised that the judge came down with what is a fairly complete victory for U.S. Soccer.”
In an appearance on ABC's “Good Morning America” on Monday, Megan Rapinoe said she was shocked by the decision. She pointed out the women’s team was far more successful than the men, winning consecutive World Cup titles and playing more games.
“If I earn $1 every time I play, and a man earns $3, just because I win 10 games and he only wins three games, so I made $10 and he made $9, I’m not sure how that’s me making more money, while having to essentially win everything we could’ve possibly won over these last two years: two World Cups and just about every game we’ve played,” Rapinoe said. “For me, it missed the point, and was very disappointing, to be honest.”
Attorney Hampton Dellinger, who represented players in a battle over artificial turf at the 2015 World Cup in Canada, said the case will take time to play out.
“Obviously, I think it’d be great if the parties could reach a reasonable settlement,” Dellinger said. “But to my mind, if the legal fight is going to continue, I don’t think the judge’s first word is necessarily going to be the last word.”
Arguments could be made that the team has already made it's case in the court of public opinion. Following the U.S. victory in the World Cup final last year in France, the crowd chanted "Equal Pay" as the players celebrated on the field.
The women also drew support from some of U.S. Soccer's most high-profile sponsors when the federation argued in court documents that the women lacked the skills and responsibilities of their male counterparts. The so-called scorched earth argument led to the resignation of USSF President Carlos Cordeiro, who was replaced by former national team player Cindy Parlow Cone.
“I think it’s great that they brought the case forward, because I think any visibility into this issue is just going to help further the cause, because it’s going to make more people sensitive and aware that the issue of unequal pay persists in all spectrums of our economy," said Mary Ellen Carter, an associate professor of accounting at Boston College. "I happen to know it well in the executive space, but it’s not only there. So I think the courage that they had to come forward with the suit keeps the issue at the forefront, and I think that that’s important."