Trial News

A California federal district court has certified a class and a collective action brought by members of the U.S. Senior Women’s National Soccer Team for violations of Title VII and the Equal Pay Act (EPA) by their employer, the U.S. Soccer Federation. The court found that the putative class met all the factors required under Federal Rules of Civil Procedure 23(a) and 23(b) and that the collective action satisfied §216(b) of the Fair Labor Standards Act (FLSA). (Morgan v. U.S. Soccer Fed’n, Inc., No. 2:19-cv-01717-RGK-AGR (C.D. Cal. Nov. 8, 2019).)

In their complaint, the plaintiffs state that the team is “currently ranked number one in the world, a position it has held ten out of the last eleven years” and that they “perform job duties that require equal skill, effort, and responsibilities” as the men’s national team players. They also note that from 2015 to 2018, the women’s team played 19 more games than the men’s team. Yet the women are underpaid compared to the men. For example, the male players are paid a minimum amount for each game, and that amount can increase based on how competitive their opponent is and whether they win or tie the game. And female players receive 38% of the compensation the male players receive for non-tournament games. The women also allege that they are subject to worse employment conditions compared to the men, including how they travel to games, resources allocated to the team, and inferior playing surfaces that could cause injury.

When the female players have attempted to negotiate equal pay through their union, their requests have been rejected—despite the fact that their performance has exceeded that of the men’s team. In response to alleged comments from the defendant’s representatives that the women do not deserve equal pay because they do not drive as much revenue for the federation, the plaintiffs proposed a revenue-sharing model to account for variations in revenue brought in by the women’s team year to year—which also was rejected. The plaintiffs filed a putative class action in March, seeking an injunctive relief class and a damages class for Title VII violations, as well as a collective action under the FLSA for EPA violations.

When considering class certification, the court first assessed whether the plaintiffs had standing and found that they had asserted a concrete, particularized injury because they were expected to perform the same job as the male players but were paid less per game. Rejecting the defendant’s contention that the women did not suffer an injury in fact because each player made more money overall each year than the highest paid male player, the court explained that under the EPA, the rate of pay is what’s relevant to the discrimination question, not whether the total annual compensation was equal to or higher than a man’s. Finding otherwise would mean “that an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA . . . as long as the woman negated the obvious disparity by working twice as many hours.” And under Title VII, the crux of a discrimination claim is whether the plaintiffs were treated differently in compensation and employment terms based on their sex, not on how much money they ultimately made each year.

The court then reviewed the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy, and it concluded that the plaintiffs met all four. The defendants particularly challenged the adequacy factor, arguing that the class representatives are inadequate because some class members may prefer the current compensation model over the men’s (which is “higher risk, higher reward”) and that senior members of the team may favor terms that prioritize them over junior, non-contracted team members. The court found these arguments speculative and without any evidence of an actual conflict among the class members that would make the representatives inadequate to protect all members’ interests.

For the injunctive relief class, the court found that the injunctive relief the class seeks is  appropriate under Rule 23(b)(2). The players are seeking “injunctive and declaratory relief requiring equal pay and equal working conditions on a going-forward basis.” They have not requested back pay or other monetary damages. The damages class also passed muster under Rule 23(b)(3). The defendant argued that common issues did not predominate for the damages class because “individual issues regarding whether any one [female] player is similarly situated to any one [male] player will predominate over common issues.” The court was not persuaded because the class members all allege that the defendant engaged in the same discriminatory employment practices and would use the same evidence regardless of whether their cases proceeded as a class or individually. It further reasoned that both teams’ collective bargaining agreements provided a sufficient basis for determining the players’ damages. Finally, the court certified the collective action, which the defendant did not oppose.