If you thought this week could not get any worse — a global pandemic, a cratering equity market, municipal quarantines, our national public life grinding to a virtual halt — consider that a lawyer said something demonstrably true about women’s sports that angered soccer star Megan Rapinoe.
The controversy arises from a $66 million lawsuit by the U.S. Women’s National Team (WNT) against the U.S. Soccer Federation (USSF), which claims that the WNT was subject to unlawful gender discrimination under Title VII of the 1964 Civil Rights Act. The women’s team claims that it has been afforded a “discriminatory rate of pay” by the USSF and demands multimillion-dollar restitution payments from the federation.
The “discriminatory rate of pay” in question is, of course, one that the women’s team itself negotiated for and that the members of the team agreed to when they affixed their signatures to the bottom of their collective-bargaining agreement. Invidious “discrimination,” indeed.
The Equal Pay Act prohibits employers from paying disparate wages to employees of opposite sexes when those employees are engaged in “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” In a USSF defense memorandum — it precipitated the resignation of president Carlos Cordeiro after the media caught wind of its contents — the federation’s counsel insists that the level of “skill” involved in women’s soccer is not equivalent to that in men’s soccer, where the players are faster and stronger. Attorney Brian Stolzenbach wrote (some citations omitted):
Even Plaintiffs acknowledge that the level of “skill” required for each job in question (WNT player and MNT player) must be “measured by the experience, ability, education, and training required to perform a job.” The overall soccer-playing ability required to compete at the senior men’s national team level is materially influenced by the level of certain physical attributes, such as speed and strength, required for the job. As Plaintiff Carli Lloyd’s testimony admits, the WNT could not compete successfully against senior men’s national teams because competing against 16- or 17-year-old boys “is about as old as [the WNT] can go.” Plaintiffs ask the Court to conclude that the ability required of an WNT player is equal to the ability required of an MNT player, as a relative matter, by ignoring the materially higher level of speed and strength required to perform the job of an MNT player. The EPA [Equal Pay Act] does not allow this. . . . (EPA does not ensure equal pay for jobs requiring “proportional” skill level). Nor is it a “sexist stereotype” to recognize the different levels of speed and strength required for the two jobs, as Plaintiffs’ counsel contend. On the contrary, it is indisputable “science,” as even Plaintiff Lloyd described it in her testimony.
This was met with predictable scorn from members of the press, the women’s team, and their representatives. The WNT wore their jerseys inside-out Wednesday during the national anthem, in defiance of the memorandum. Megan Rapinoe, who told a reporter after the game that the USSF’s statement is “all false,” told “every girl out there” and “every boy out there” that “you are not lesser just because you’re a girl” and “you are not better just because you’re a boy.”
In a sense, Rapinoe is correct — no one is asserting that the boys and girls “out there” don’t share the same inherent human dignity or worth. What USSF is asserting, quite correctly, is that men are faster and stronger on average than women, a biological fact that is built into the way the sport of soccer is played at every level. Play it through in your head: Why, specifically, don’t the members of the United States Women’s National Soccer Team compete against the Men’s Team?
They’d lose. Badly.
To remove biological factors — speed and strength — from the equation a priori and proceed to claim that men’s and women’s teams are equally “skilled” is to reduce “skill” to a relative category, one unmoored from the physical traits that manifestly affect performance on the soccer field. As the plaintiffs themselves concede, there are “biological differences” between the two sexes in speed and strength, differences that are part of the sport of soccer and that separate good players from bad. Are the men’s and the women’s teams “the same” if you control for differences in speed and strength? Maybe. If you ignore our relative heights and jumping abilities, maybe LeBron James and I are equally talented basketball players.
But even if we were to suspend disbelief and pretend that men’s soccer and women’s soccer involve the same level of “skill,” it is not clear that the collective-bargaining agreement of the women’s team systematically disadvantages the team relative to their male counterparts. In fact, the reverse might be true.
The WNT’s CBA includes a guaranteed $100,000 base salary and pays players a discounted rate when they’re sick, injured, or pregnant. The MNT’s CBA includes no guaranteed salary but a higher “per game fee” than members of the WNT receive. These disparate arrangements are the natural result of volitional collective-bargaining processes between the federation and two teams with different material interests, risk tolerances, and — yes — potential revenues.
Their claims to the contrary notwithstanding, it seems that the women’s team had a superior CBA to that of their male counterparts. The WNT played an average of 16 “friendlies,” or exhibition matches, each year from 2017 through 2019. In that same span, the men’s team played an average of eight friendlies. Both teams have complex revenue streams, which include variable items like endorsements, ticket sales, and merchandise. If we compare the reimbursement rates for friendlies, however, it allows us to compare like with like.
Justin McCrary, a labor economist at Columbia Law School, estimated that, under the women’s CBA, for which they bargained, if the women’s team played in the same number (eight) of “friendlies” as the men did, the average player would have earned $154,000, roughly 48 percent more than the $105,333 she would have earned had she been compensated according to the men’s CBA.
It’s not just a hypothetical question. U.S. Soccer released an independently audited fact sheet including ten years of company financials and found, that from 2010 through 2018, “U.S. Soccer paid our women $34.1 million in salaries and game bonuses and we paid our men $26.4 million — not counting the significant additional value of various benefits that our women’s players receive but which our men do not.”
Whether one considers the “equal skill” component of the Equal Pay Act or the factual merits of the WNT’s discrimination claim, the plaintiffs’ case seems to wither under scrutiny. The defense, in this case, treated the female soccer players with respect, despite insinuation to the contrary. The players are suing an organization for tens of millions of dollars, bringing the suit as mature, sentient adults who affixed their signatures to a contract negotiated by their own players’ union. They are not helpless infants who must be shielded from the most basic facts of human biology, nor should they be treated as such.