What Merging USWNT, Solo Lawsuits May Mean for U.S. Soccer Equal Pay Case

Hope Solo could find herself on the same side as her former USWNT teammates if a court rules to consolidate multiple lawsuits alleging the same U.S. Soccer transgressions when it comes to gender discrimination.

The U.S. Soccer Federation faces two very similar federal lawsuits over alleged gender-based employment discrimination–one by former U.S. women's national team goalkeeper Hope Solo and one by more than two dozen players she used to call teammates. In new legal filings, U.S. Soccer seeks to postpone both litigations while the cases are potentially consolidated.

U.S. Soccer's filings are a reminder that while women's national team players have used the legal process to pursue wage equity, the wait for a resolution may take a while.

Here's a closer look at what consolidating the cases could mean for all parties involved:

Two parallel lawsuits

On March 8, Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and 25 other WNT players sued USSF in the U.S. District Court for the Central District of California. They argue that wide disparities in pay between women's national team and men's national team players are not explainable through market forces or the invisible hand of economics. While the WNT has been among the world's best women’s soccer teams for decades, the MNT has often struggled in international competitions. Also, unlike the three-time World Cup-winning WNT, the MNT has never won a World Cup. Despite the comparative success of WNT players—including with respect to TV ratings—attorneys for WNT players contend they earn as little as 38% of similarly situated MNT players.

Mindful that fans often dismiss wage disparities between women’s and men’s athletes as reflecting supposed “market realities” and fan preferences, the players’ association for the WNT proposed a compensation system whereby WNT salaries would rise or fall based on the amount of revenue WNT players generated for USSF. Such a system would thus test the “market realities” theory in the actual marketplace. In their lawsuit, WNT players claim USSF rejected this arrangement.

The lawsuit brought by these 28 players asserts that USSF violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964. In general, both laws forbid employers from paying women employees lower wages than male employees. To the extent there are differences in pay, the employer must establish a non-discriminatory explanation, such as substantive differences in work environment or working product, or meaningful variations in experience and seniority.

The 28 players’ legal arguments were not at all new to USSF. Last August, Solo filed a very similar lawsuit against USSF in the U.S. District Court for the Northern District of California. Solo’s filing features comparable facts, such as claiming that USSF recently paid MNT players a per diem of $62.50 for domestic venues and $75.00 for international venues yet paid WNT players $50 and $60, respectively, for the same types of travel. Likewise, she stresses that USSF has paid MNT players $3,750 for promotional appearances whereas WNT players are paid $3,000 for, as Solo puts it, “the exact same work.” Like the 28 players’ lawsuit, Solo charges USSF has violated both the Equal Pay Act and Title VII of the Civil Rights Act.

USSF has sought a dismissal of Solo’s lawsuit and will seek the same of the 28 players’ lawsuit. With respect to Solo’s lawsuit, USSF flatly denies that WNT players are victims of discrimination. It likewise rejects the accusation that WNT players are paid less for equal work.

To that end, USSF stresses that any differences in pay between WNT and MNT players reflect the contractual assent of their respective players’ unions. Like MNT players, WNT players are governed by a collective bargaining agreement. The CBA dictates the wages, hours and other working conditions of players. The CBAs for WNT and MNT players contemplate different pay systems. WNT players are contractually owed guaranteed base salaries and medical benefits. In contrast, MNT players are paid through a “pay-play-structure” that contemplates player compensation based on number of appearances in matches, among other factors.

Under this logic, if WNT players are disappointed about their pay relative to MNT players, they could “blame” their union and demand a revised pay system in their next CBA–though the agreement the women signed in April 2017 runs through 2021. The larger point is WNT salaries are not unilaterally dictated by USSF but instead reflect bargaining between USSF negotiators and the WNT players’ union.

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Transferring and consolidation 

In addition to seeking the dismissal of Solo’s lawsuit, USSF has filed a motion to transfer her case to the U.S. District Court for the Northern District of Illinois. USSF asserts that Solo, who USSF claims lives in North Carolina, lacks a sufficient nexus to California to justify her suing USSF there. USSF also argues that Solo’s litigation should take place in Chicago, where USSF is headquartered and where many witnesses are located. The Northern District of Illinois was also the venue for past litigation between WNT players and USSF. In 2016, the parties litigated a lawsuit in that forum pertaining to the enforceability of a CBA.

Taken together, there are two very similar lawsuits and three potential federal districts (the Northern District of California, the Central District of California and the Northern District of Illinois) for the litigations to be heard. This dynamic presents potential inefficiencies for all of the parties as well as for the judges and their clerks. The two lawsuits are largely duplicative in terms of facts and law. Further, a ruling in one lawsuit would likely influence the other in ways that could undermine a fair trial. Judges also do not want to expend their limited time and bandwidth on reiterative litigation.

With those points in mind, the U.S. Judicial Panel on Multidistrict Litigation, also known as the MDL Panel, is reviewing whether the two lawsuits should be consolidated and, if so, where they should be litigated. The MDL Panel, which is based in Washington, D.C., reviews lawsuits that are pending in different federal districts and determines whether they involve enough common questions of fact that they ought to be consolidated into one litigation and transferred to a particular federal district and judge.

While the MDL Panel reviews the question of consolidation, USSF has requested that the Solo and 28 players’ litigations be “stayed” (put on hold). Earlier this week, USSF filed motions to stay in both litigations. USSF’s filing in the 28 players’ lawsuit was unopposed by the players, meaning it is all but certain that the presiding judge, U.S. District Judge Gary Klausner, will grant it.

USSF’s filing in the Solo lawsuit was not styled as unopposed, meaning it is possible that Solo’s attorneys will contest it. If they do, the presiding judge, U.S. District Judge James Donato, will determine whether a temporary stay is appropriate. Given that courts routinely grant such stays and given that a stay here would seemingly promote judicial efficiency—it would conserve resources, prevent duplicative or conflicting rulings by Judges Klausner and Donato and minimize the risk of unnecessary harm to the parties—there is a good chance that it will be granted.

Assuming the MDL Panel consolidates the two litigations into one, attorneys for the respective players will need coordinate their next moves. The 28 players are represented by Jeffrey Kessler, David Feher, Diana Hughes Leiden and other attorneys at Winston Strawn, whereas California attorneys Timothy Moppin and Richard Nichols represent Solo.

A consolidated case could prove advantageous for Solo. Her claims would gain the power of solidarity in that 28 similarly-situated players have joined her voice in raising the same types of factual assertions and legal arguments. To the extent USSF is worried about wage litigation, a wage case brought by many players is likely more threatening than a case brought by one. A group dynamic of similarly-situated plaintiffs could make USSF more likely to settle—and pay up.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.