Someone call Mel Gibson, because the Ninth Circuit Court of Appeals is going to need some help figuring out what the U.S. Women’s soccer team wants. The women’s soccer players lost their Equal Pay Act lawsuit against the U.S. Soccer Federation (USSF) at the trial court level (not surprising given that the players are paid more than the men). They are now seeking to have that decision overturned.
On Monday, the players filed their final brief in the court of appeals. On one hand, the team does not want the contract it bargained for and signed, despite the fact that the team made $6 million more than the men’s team over the relevant years. But, neither does the team want the contract the men signed, having rejected that out of hand in September as “not good enough.”
The final brief mostly criticizes USSF for treating the women differently based on sex, leaving the, “But what do you want?” question for another day. It’s frustrating to read. Reality tells us that the USSF is not a sexist organization. The USSF, after all, created and funded the only professional women’s league our nation has ever seen, the National Women’s Soccer League (now 9 years old), after prior attempts had failed. And the USSF president, Cindy Parlow Cone, is a two-time Olympic Gold medalist with the women’s team. Still, the women’s soccer team compares USSF to sexist employers who pay female salespeople a lower commission than men, requiring women to sell more to earn more. In those types of cases, the courts have agreed that women were discriminated against. But those cases have no resemblance to the professional soccer context, where the women specifically bargained for guaranteed salaries, severance pay, and healthcare benefits—all things the men don’t have—and rejected a high-risk contract that would have eliminated benefits for the sake of winning bonuses. The brief makes no serious attempt to refute this.
There’s irony lurking throughout the brief. The women complain about being treated differently than men. How unlawful, they say. But, the women want to be treated differently than the men. They don’t want the riskier pay-to-play contract that the men have. And good for them!
The women’s soccer players do, after all, play for women’s soccer. If USSF put every man and woman in a league together and offered the exact same contract, benefits, and bonuses to everyone who made the team, USSF would be relieved of any threat of suit. And, yet, women would be made substantially worse off. By giving women the stability they asked for, funding the women’s professional league to the tune of $20 million, and treating them as a unique bargaining unit with unique preferences, USSF now faces a lawsuit. The world is a mysterious place.
Given the women’s team’s tremendous whining, and relentless belief they are owed a more lucrative contract than the men, I have a secret hope. The women, in my vision, sign a deal far outpacing the men. Millions of dollars per player per year, without any obligation to play any games. Patrick Mahomes money. And then I hope various men try out for the women’s team, and U.S. “Women’s” Soccer wins every World Cup from here until the end of time.
Of course, I don’t really wish that. I want women to be treated as competent professionals, capable of negotiating and signing contracts, capable of petitioning for better leadership, capable of striking against bad deals, or alerting the National Labor Relations Board of labor violations.
That’s the case here. The USSF bargained in good faith with the women’s soccer team. Indeed, the women never accuse the USSF otherwise. Through that bargain, the team made more than the men. And that’s saying something, given that the prize money available to USSF for a successful men’s team is far greater than for a successful women’s team. Regardless of tremendously different financial upsides, the USSF has consistently remained financially dedicated to increasing women’s soccer fandom in the country, and successfully so.
As IWLC argued to the Ninth Circuit in its amicus brief:
Equal pay laws were not passed to equalize risk tolerance levels of male and female employees or to prevent employees from negotiating contracts that best meet their individual needs. Yet, if the players succeed in convincing this court to second guess their choice, they will limit their own choices moving forward. Indeed, in the future, Women’s Soccer will be forced to accept the identical contract as Men’s Soccer, even if this does not benefit the players.
Women’s Soccer will remain powerful and well-represented by its union, but for most women the dissolution of personal choice in employment contracts will mean reducing their options: Women will just have to take whatever deal men take, since that is all employers will offer.
The lower court was right in tossing out this case. The USSF has done nothing wrong. The Court of Appeals should affirm.