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FIRM / AFFILIATE OFFICES

May 31, 2016

Mr. Greg Mucha

U.S. Equal Employment Opportunity Commission
Chicago District Office
500 West Madison St.
Suite 2000
Chicago, IL 60661

Re:

Barcelona

Moscow

Beijing

Munich

Boston

New Jersey

Brussels

New York

Century City

Orange County

Chicago

Paris

Dubai

Riyadh

Dsseldorf

Rome

Frankfurt

San Diego

Hamburg

San Francisco

Hong Kong

Shanghai

Houston

Silicon Valley

London

Singapore

Los Angeles

Tokyo

Madrid

Washington, D.C.

Milan

Hope A. Solo, et al. v. The United States Soccer Federation

EEOC Charge No. 440-2016-03560; 440-2016-03568; 440-2016-3570; 440-201603571; 440-2016-03572

Dear Mr. Mucha:

This firm represents Respondent The United States Soccer Federation (USSF or U.S.
Soccer) with respect to the above-referenced matter. Please accept this letter as U.S. Soccers
position statement in response to the Charge of Discrimination filed by Hope A. Solo, et al. U.S.
Soccer denies the allegations of discrimination contained in the Charge.
U.S. Soccer is deeply supportive of the United States Womens National Team (WNT)
and womens soccer generally. To U.S. Soccers knowledge, the WNT is the highest paid
womens national soccer team in the world, and U.S. Soccers leadership in advocating for the
right of women to compete and be compensated fairly in international competition is wellrecognized. U.S. Soccer successfully advocated for the inclusion of womens soccer in the
Summer Olympic Games, and continuously has led the charge to persuade the Fdration
Internationale de Football Association (FIFA) to award increased prize money in connection
with the Womens World Cup. Moreover, after prior attempts to create a viable North American
womens professional soccer league failed due to limited fan interest and significant financial
losses, U.S. Soccer provided the financial and logistical support, as well as leadership, to make a
sustainable league possible, going so far as to guarantee and pay the salaries of WNT players
who participate in the league. In light of U.S. Soccers substantial support for womens soccer
and WNT players over the last quarter-century, the Charges suggestion that U.S. Soccers
compensation to WNT players is motivated by discriminatory animus is unwarranted,
unfounded, and untrue.
The five WNT players to bring this Charge assert violations of Title VII and the Equal
Pay Act, claiming that [their] compensation pales in comparison to that of the MNT players.

May 31, 2016

Page 2

Charge V. That claim is false. Not only did the WNT receive greater compensation than the
MNT (the United States Mens National Team) in 2015, and in four of the past eight years, but
WNT players constitute a majority of the 25 highest-earning U.S. Soccer players over the last
four-year international soccer competition cycle. Indeed, the players bringing this Charge earned
more money from U.S. Soccer last year than every single member of the MNT. And leaving
aside the prize money that players receive for participating in the FIFA Mens and Womens
World Cupbonuses that are funded largely as a pass-through from FIFA 1the five WNT
players who brought this charge received almost a third more compensation from U.S. Soccer
over the last four years than the five highest-paid MNT players over that time.
Moreover, to the extent that there are differences in compensation paid to WNT and
MNT players, those differences do not establish a violation of Title VII or the Equal Pay Act.
Under both statutory schemes, where a payment that differs by gender is being made pursuant
to (iii) a system which measures earnings by quantity or quality of production[] or (iv) a
differential based on any other factor other than sex, there is, by definition, no violation. 29
U.S.C. 206(d); 42 U.S.C. 2000e-2(h). In an effort to promote and ensure pay equity, U.S.
Soccer and the WNT included a provision in the current (and previous) WNT collective
bargaining agreement that ensures that the WNT, in the aggregate, is paid at least an equal share
of the revenue its games generate as the MNT. In each year since 2005, however, the WNT has
been paid a higher share of the revenue its games generate than the MNTin some cases a
percentage several multiples of that paid the MNT. Because their compensation is already tied to
a fair pay clause that ensures that compensation is tied to the quantity of revenue that the WNT
produces, the WNT players who brought the Charge cannot establish a violation of Title VII or
the Equal Pay Act.
Any differences in the compensation paid MNT and WNT players are driven by factors
other than gender, including (1) the greater amount of revenue produced by the MNT; (2) the
WNTs choice to negotiate for a compensation structure substantially different from the MNTs,
under which WNT players receive a substantial base salary that MNT players do not, but lower
bonuses for playing in individual games; and (3) differences in the relative timing of the WNTs
and MNTs collective bargaining agreement negotiations with U.S. Soccer. It is well-established
that compensation differences resulting from factors such as these do not support a charge of
discrimination under Title VII or the Equal Pay Act.
Because the record powerfully rebuts the Charges claim that the United States Womens
National Teams compensation is the product of discriminatory animus, the Charge should be
dismissed.

During each World Cup cycle, FIFA awards prize money to participating teams in the Mens
and Womens World Cup that U.S. Soccer largely passes through to its respective players.
Owing in part to the fact that the 2014 Mens World Cup generated 50 to 100 times the revenue
worldwide as the 2015 Womens World Cup, see infra at Part B.1, FIFA awards more prize
money to participants in the Mens World Cup tournament.

May 31, 2016

Page 3

I.

THE UNITED STATES SOCCER FEDERATION IS A STRONG SUPPORTER

OF WOMENS SOCCER AND THE U.S. WOMENS NATIONAL TEAM
A.

The United States Soccer Federation

The United States Soccer Federation is a 501(c)(3) non-profit organization headquartered

in Chicago, Illinois, which is recognized by FIFA as the governing body of soccer at all levels in
the United States. U.S. Soccer is also recognized by the United States Olympic Committee as
the National Governing Body for the sport of soccer under the Ted Stevens Olympic and
Amateur Sports Act (the Ted Stevens Act). See 36 U.S.C. 220501, et seq.
For more than 100 years, U.S. Soccers goal has been to make soccer, in all its forms, a
preeminent sport in the United States and to continue the development of soccer at all
recreational and competitive levels. U.S. Soccer manages the United States Mens and Womens
national soccer teams, including a senior national team for each gender (the MNT and WNT), the
U.S. Paralympic Team, national teams for beach soccer and futsal (5-a-side), and sixteen
national teams for younger players, eight for each gender (e.g. Mens and Womens Under-23,
Boys and Girls Under-16, etc.). U.S. Soccer also runs soccer development academies for
children, and trains, licenses, and sets guidelines for coaches and referees.
Importantly, U.S. Soccer is a non-profit, mission-based organization. As a consequence,
U.S. Soccer has to fund not just the senior MNT and WNT, but all of the other teams it sponsors,
the coaching and referee programs, as well as other initiatives designed to develop the sport and
improve the experience of those who participate in or enjoy it.
U.S. Soccer generates revenue by holding friendly matches with other countries senior
mens and womens national teams and participating in international competitions like the World
Cup, as well as through the sale of broadcast and sponsorship rights and managing player,
referee, and coach registration and training. 2 U.S. Soccer has overseen dramatic growth in the
popularity of soccer in the United States. A quarter century ago, the U.S. national teams were
playing games in small stadiums that did not reach capacity, few matches were televised, soccerspecific stadiums were yet to be created, and there were no high-level professional outdoor
leagues. Today, by contrast, soccer is one of the fastest-growing sports in the United States and
its national teams enjoy unprecedented support.
B.

U.S. Soccers Support For Womens Soccer And The WNT

U.S. Soccer is a world leader in womens soccer at every level. It is widely recognized
not only for the competitive success of its national teams on the field, but as a significant
supporter of womens soccer at every level both in the United States and around the world. In
1990, the U.S. Womens soccer program was in its infancy and the Womens World Cup had
never even been played. Since the Womens World Cup was first contested in 1991, the WNT
2

U.S. Soccer generally only has an opportunity to realize revenue from home WNT friendlies;
unlike away friendlies for the MNT, the WNT is generally not offered an appearance fee to
participate in away friendlies, typically resulting in revenue losses for U.S. Soccer.

May 31, 2016

Page 4

has won three times and never finished lower than third. In addition, the WNT has won the gold
medal at four of the only five Olympic Games to feature a womens soccer medal competition.
The WNT has lost just 12 international matches since 2005, and has been ranked number one in
the FIFA Womens World Rankings for 12 out of the last 13 years.
U.S. Soccer is strongly committed to supporting womens soccer and the WNT, and has
received significant praise for its unparalleled leadership in promoting womens soccer in the
United States and worldwide. See infra at p. 5. In particular, U.S. Soccer has been a vocal
advocate for the right of women to compete and be compensated fairly in international
competition. U.S. Soccer believes its Womens National Team is by far the highest paid
womens soccer team in the world and likely ranks among the top ten paid national soccer teams
in the world, mens teams included. U.S. Soccer led the successful effort to ensure that womens
soccer was included in the Olympic Games, beginning with the 1996 Atlanta Olympic Games.
And although much work remains to be done, U.S. Soccer (along with others) led the successful
effort to persuade FIFA to begin awarding prize money in connection with the Womens World
Cupsomething that FIFA did not do prior to 2007.
Domestically, U.S. Soccer has worked tirelessly, and invested millions of dollars, to
support the development of womens soccer, at both the youth and professional levels. And it
has been instrumental in establishing and sustaining the National Womens Soccer League, a
North American professional womens soccer league subsidized by U.S. Soccer. Two previous
attempts to establish womens professional soccer leaguesthe Womens United Soccer
Association (WUSA) and Womens Professional Soccer (WPS)each failed within three
years, after suffering from significant financial losses, organizational deficiencies, and limited
market interest. See, e.g., Mark Zeigler, Will WUSA Live Again?, San Diego Trib. (Jan. 10,
2007),
available
at
http://www.sandiegouniontribune.com/uniontrib/20070110/
news_lz1s10wusa.html (noting Womens United Soccer Association suffered close to $100
million in losses before folding in 2003); Jamie Goldberg, National Womens Soccer League
Faces Challenges and Opportunities As World Cup Looms, The Oregonian (Apr. 9, 2015),
available at http://www.oregonlive.com/portland-thorns/2015/04/nwsl_face_challenges_and
_oppor.html (noting that WUSA and WPS struggled to retain fans and saw precipitous drops in
attendance before folding).
In 2013, in an effort to build a sustainable and world-class league to drive interest in
womens soccer and provide a place for current and potential WNT players to compete and
develop, U.S. Soccer stepped in to help establish and fund a new North American professional
womens soccer leaguethe National Womens Soccer League (NWSL). Not only does U.S.
Soccer pay the NWSL salaries of WNT players that participate in the league, in addition to their
compensation for playing on the WNT itself, U.S. Soccer provides substantial funding for frontoffice staff, legal matters, office space, websites, finance, referees, public relations, and
operations. Julie Foudy, Will NWSL Be A Success? Well, espnW.com (Apr. 13, 2013),
available
at
http://espn.go.com/espnw/news-commentary/article/9161421/
espnw-latest-women-professional-soccer-league-success (hereafter Foudy, Will NWSL Be A
Success? Well). Reflecting its strong commitment to womens soccer, U.S. Soccer has
invested more than $3.5 million in the NWSL in addition to $3,450,552 in salaries it paid to the
WNT players who participate in the league. Compensation Analysis at USSF-EEOC-0000179.

May 31, 2016

Page 5

As Julie Foudy, the highly decorated former WNT co-captain has explained, this league would
not have been possible without [U.S. Soccer], there is no debate about that. Foudy, Will NWSL
Be A Success? Well; see also id. (explaining that U.S. Soccer is the catalyst behind getting
this third pro league off the ground and is providing leadership and support to ensure the
leagues survival). NWSL recently kicked off its fourth year of competitionthe first North
American professional womens soccer league to reach that milestone.
Internationally, U.S. Soccer, through its President, Sunil Gulati, has been instrumental in
efforts to reform international soccer institutions to promote womens soccer worldwide. Mr.
Gulati has been repeatedly praised by Moya Dodd, a principal reformer and one of the few
female members of FIFAs Executive Committee, for his fantastic support for reforming FIFA
to promote gender diversity and the full participation of women at all levels of soccer, on and off
the field. Jennifer Bendery, Meet The Woman Trying To Shatter The Glass Ceiling In
Professional
Soccer,
Huffington
Post
(Jan.
27,
2016),
available
at
http://www.huffingtonpost.com/entry/women-soccer-fifa_us_569c7157e4b0b4eb759eddeb;
see also Jonathan Tannenwald, FIFA Executive Committees Moya Dodd Champions Reform
From
Within,
Philly.com
(Jan.
22,
2016),
available
at
http://www.philly.com/philly/blogs/thegoalkeeper/An-audience-with-FIFA-ExecutiveCommittees-Moya-Dodd.html (Sunil has been a huge supporter of this effort .).
In light of U.S. Soccers strong record of support for womens soccer and the WNT in
particular, the Charges implicit suggestion that U.S. Soccer has acted with a discriminatory
motiveas would be necessary to sustain the Title VII claim set forth in the Chargeis
particularly unfair and misplaced.
II.

THE CHARGE DOES NOT STATE A VIOLATION OF TITLE VII OR THE

EQUAL PAY ACT

The Charge asserts violations of both Title VII and The Equal Pay Act, asserting that the
compensation WNT players receive from U.S. Soccer pales in comparison to that of the MNT
players. Charge V. That claim is misguided, and fails to state a violation of Title VII or the
Equal Pay Act under well-settled law for two principal reasons.
First, the claim that compensation pales in comparison to that of the MNT players is
fundamentally inaccurate. In 2015, the WNT received greater total compensation than the
MNT, a result that is likely to repeat this year. Fourteen of the 25 highest-earning U.S. Soccer
players over the last four yearsa majorityare women, and half of the U.S. Soccer players to
receive over $1 million in compensation since 2008 are women. Indeed, of all players who were
paid by U.S. Soccer from 2012-2015, the average WNT player received nearly $280,000
roughly $90,000 more than the average MNT player who was paid during that same period.
Further, when the once-every-four-year bonus payments determined and essentially funded by
FIFA in relation to the Mens and Womens World Cup are excluded, from 2012-2015 the five
WNT players represented in the Charge received almost 50% more in compensation from U.S.
Soccer compared to the top five highest-paid MNT players. Even including the payments made
to MNT and WNT players from prize money earned as a consequence of their World Cup
participation, the five WNT players who filed the Charge earned, on average, only 3.8% less

May 31, 2016

Page 6

($709,396) from 2012-2015 than the five highest-paid MNT players ($737,659), even though the
monies paid by FIFA for the MNTs participation in the World Cup is many times greater than
what FIFA pays for the Womens World Cup. And that small difference is largely erased by
several valuable benefits afforded WNT, but not MNT, players, such as medical insurance and
severance pay. 3
Second, any differences in the compensation paid to WNT and MNT players are not
based on gender and do not establish a violation of Title VII or the Equal Pay Act. Under both
provisions, it is a total defense that a payment that differs by gender is being made pursuant to
(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or
quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C.
206(d) (Equal Pay Act); see also 42 U.S.C. 2000e-2(h) (It shall not be an unlawful
employment practice under [Title VII] for any employer to differentiate upon the basis of sex in
determining the amount of the wages or compensation paid or to be paid to employees of such
employer if such differentiation is authorized by [29 U.S.C. 206(d)].) (Title VII).
Here any differences in the compensation paid to MNT and WNT players are principally
attributable to: (1) the greater amount of revenue produced by the MNT, whose games
historically are better attended and generate higher broadcast ratings as compared to the WNT;
(2) the WNTs choice of a compensation structure, negotiated by the WNTs Players Association
and approved by the WNT players, which is substantially different from that chosen by the
MNT; and (3) differences in the relative timing of the WNTs and MNTs collective bargaining
agreement negotiations with U.S. Soccer. None of these differences amount to impermissible
discrimination on the basis of sex, but rather constitute well-accepted bases upon which
compensation is properly determined. As such, the Charge does not state a violation of the Equal
Pay Act or Title VII.
A.

THE CHARGE PAINTS A DISTORTED PICTURE

COMPENSATION RECEIVED BY THE WNT AND MNT
1.

OF

THE

Compensation Under The WNTs And MNTs Collective Bargaining

Agreements

International soccer competition consists of a series of four-year cycles or quads that

are built around major international competitions. For mens national teams around the world,
each quad culminates in the FIFA World Cup. For womens national teams, the quad includes
both a Womens World Cup and the soccer tournament played as part of the quadrennial
Summer Olympics, 4 in the year following a Womens World Cup. All WNT players are eligible
3

If one were to include the compensation U.S. Soccer pays for the participation of WNT players
in the NWSL, the compensation paid by U.S. Soccer to the five players who filed the Charge
would far exceed the amounts paid by U.S. Soccer to the MNT players. NT Employment Data
(USSF-EEOC-0000627).
4

The Mens and Womens World Cups are held in different years, with the Womens World
Cup played the year following the mens. The Summer Olympics historically take place the year

May 31, 2016

Page 7

to play in the Olympics. By contrast, due to rules imposed by international bodies, most MNT
players are ineligible to participate in the Olympics. 5 The revenue generated by each teamand
the compensation each team receivesrises and falls over the course of each four-year cycle,
peaking during years involving major international tournaments. During years in which a
Womens World Cup is held or the WNT participates in the Summer Olympics, the WNT earns
more compensation than the MNT. See Compensation Analysis at USSF-EEOC-0000179.
Conversely, during years in which a Mens World Cup or the main qualifying games leading to
the World Cup are scheduled, the MNT earns more compensation than the WNT. See id. In four
of the last eight years, the WNT has received greater compensation in the aggregate than the
MNT; in the other four, the reverse is true. See id.
Both the MNT and WNT have organized their own players associations, which have
negotiated collective bargaining agreements (CBA) to govern four (or eight) year periods
covering one or two four-year cycles. See, e.g., WNT CBA 2005-2012, art. II (at USSF-EEOC0000129). Each players association has its own executive director and general counsel; each
likewise has been represented by a separate law firm. 6 The WNT Players Association
(WNTPA) last negotiated a full collective bargaining agreement in 2012-2013 for the 20132016 period. The current collective bargaining agreement negotiated by the MNT Players
Association (MNTPA) covers the eight-year period from 2011-2018.
Collective bargaining agreements with the MNT and WNTlike most multi-year
contracts in professional sportsreflect predictive judgments about future performance,
informed by past experience. With respect to the MNT and WNT, the compensation paid each
team is based, in part, on predictions regarding the revenue that each team will generate over the
course of the collective bargaining agreement. Just as athletes sometimes over-perform or
underperform expectations, a team can exceed or fail to meet its revenue projections; when that
happens, that record of performance becomes a factor during negotiations over the next

after the Womens World Cup. For instance, the Mens World Cup was last held in 2014 and
will next be held in 2018. The Womens World Cup was last held in 2015 and will next be held
in 2019, with Summer Olympics scheduled to take place in 2016 and 2020.
5

Eligibility for Olympic soccer differs between men and women, as a result of different rules
imposed by international governing bodies. For mens soccer, all but three players on a nations
Olympics roster must be under 23 years of age. Historically, the United States has sent the
Mens Under-23 National Team to attempt to qualify for and, if successful in qualifying, to
represent the United States in the Olympics. But because there are no age restrictions for
womens Olympic Soccer, the WNT represents the U.S. in the Olympics.
6

The MNT Players Association has historically been represented by Mark Levinstein of
Williams & Connolly LLP in Washington, D.C., and the WNT Players Association, until very
recently, was represented by John Langel of Ballard Spahr LLP in Philadelphia.

May 31, 2016

Page 8

collective bargaining agreement. But that post hoc record of over- or under-performance does
not evidence that the contract in question was motivated by discrimination. 7
As separate labor organizations whose members (the players) had different priorities, the
MNTPA and WNTPA chose to negotiate significantly different compensation structures.
Compare generally MNT CBA 2010-18 (USSF-EEOC-0000042 - USSF-EEOC-0000090), with
WNT CBA 2005-12 (USSF-EEOC-0000129 - USSF-EEOC-0000166). The MNTPA has
consistently elected a pay-to-play structure, under which an MNT player receives no annual
salary from U.S. Soccer, but receives a more substantial per-game payment if he is called into
camp and selected for a friendly or international competition. See MNT CBA 2010-18, Ex. A,
I-V, X, XVI (USSF-EEOC-0000080 - USSF-EEOC-0000083, USSF-EEOC-0000085, USSFEEOC-0000087 - USSF-EEOC-0000090). Compensation for MNT players varies substantially
from year to year and player to player, and offers no salary protection in the event that a
particular player is injured or not called in.
The WNTPA originally was compensated under a pay-to-play structure as well. See
WNT CBA 2000-04, Ex. A, I.A.2, I.B.2, I.C.2, I.D.2, I.E.2 (USSF-EEOC-0000120 - USSFEEOC-0000127). During negotiations for each subsequent collective bargaining agreement,
however, the WNTPA has expressly opted for a different compensation model. Most MNT
players generate significant income from alternative sources, particularly by playing for a club
team in one of many professional mens soccer leagues around the worldfrom Major League
Soccer in the United States to Englands Premier League and countless others. By contrast, it
has proven more challenging to sustain interest in a professional womens soccer league.
See supra at p. 4. Because most WNT players historically could not count on a stable and
significant source of alternative income, the WNTPA negotiated for a compensation structure
under which core WNT players receive substantial, guaranteed salaries and other benefits
regardless of injury or participation in individual matches as well as severance pay if they are
dropped from the WNT. In return for that stability (downside protection), the WNT sacrificed
the larger per-game appearance fees and bonuses (the upside) that are inherent to a pay-to-play
model. 8

For example, assume that Player A and Player B are wide receivers of different races playing
for the same professional football team. Suppose further that Player A had consistently produced
more yards and touchdowns than Player B, and received a more lucrative contract as a result.
The fact that Player B came to outperform the Player A over the term of the contract would not
remotely suggest in hindsight that the original contracts were the product of a racially
discriminatory motive.
8

As explained, infra at n.20, it does not violate Title VII or the Equal Pay Act when two
employees opt for different compensation models, one offering greater stability and one greater
upside. If a male and female salesperson are offered the choice of compensation by either (1) a
10% commission or (2) an $100,000 guaranteed salary and a 1% commission, and each chooses
a different option, the fact that those choices may favor the male salesperson one year and the
female person the next do not provide any basis to hold the employer liable for its employees
choice to adopt a particular compensation model.

May 31, 2016

Page 9

During the most recent negotiations over the current collective bargaining agreement, the
WNTPA favored maintaining its existing compensation model, notwithstanding the fact that U.S.
Soccer was then working to form and subsidize a new womens professional league. Indeed,
reflecting its members concerns about whether the new league would survive, the WNTPA
insisted that U.S. Soccer pay participating WNT players salaries and benefits rather than risk the
possibility of non-payment if the new league failed. Further, the WNTPA even negotiated for
higher guaranteed salaries for its members in the event that the league folded during the term of
the current CBA. See WNT PA MOU 2013 (USSF-EEOC-0000167 - USSF-EEOC-0000174).
Owing to the substantial differences in the compensation models selected by the WNTPA
and MNTPA, therefore, compensation paid to MNT and WNT players is distributed within each
team in a significantly different manner. Importantly, however, in connection with the 20052012 CBA, the WNTPA and U.S. Soccer agreed to a pay equity clause under which U.S. Soccer
committed to ensure that the aggregate compensation paid the WNT, as a share of the revenue
generated by its games, is at least equal to the aggregate compensation paid the MNT as a share
of the revenue generated by its games. See WNT CBA 2005-2012, Ex. A, VIX (USSF-EEOC0000166). This provision was carried over into the 2013-2016 CBA. 9 To that end, if the MNT
receives a higher share than the WNT of the revenues generated by its respective games,
U.S. Soccer makes an additional payment to the WNT to bring those proportions into balance.
As discussed, infra, Part B.2, in every year since the pay equity clause first took effect in
2005, the WNT has been paid a higher share of its game revenue as compared to the MNT. In
many cases, the WNT has been paid a substantially greater share.
2.

The Charge Does Not Accurately Portray The Compensation

Received By WNT Players

The Charges claim (at V) that compensation for WNT players pales in comparison to
that of the MNT players is manifestly misleading and wrong. In fact, WNT players are among
the most highly compensated by U.S. Soccer. Fourteen of the 25 highest-earning U.S. Soccer
players from 2012-2015 are womenthose 14 players earned an average of $695,269 during that
four-year period, only 2.2% less than the average MNT player in the same cohort.
Compensation Analysis at USSF-EEOC-0000181. Of the top 50 highest-earning U.S. Soccer
players, 23 are women; WNT players in that cohort earned an average of $592,664 over the same
four-year period, nearly $35,000 more than the average compensation paid MNT players in the
same cohort. Id. When players outside the highest-earning core of each team are added to
comparison, the result is no different. Among all WNT players who received compensation from
2012-2015, the average WNT player received $279,743roughly $90,000 more than the
average compensation received by the average MNT player during the same period. Id.
The Charge seeks to elide that data by pointing to the fact that MNT players are eligible
to earn more compensation for playing in each individual friendly compared to WNT players.
See Charge X-XI. But that is largely the product of the WNTPAs choice to adopt a
9

The current CBA consists of the terms in the 2005-2012 CBA as modified and amended by a
March 19, 2013 Memorandum of Understanding.

May 31, 2016

Page 10

guaranteed compensation model different from the MNTs pay-to-play system. MNT players
can earn $5,000 or more (depending on the quality of the opponent and the nature of the result)
for participating in an international match, while potential game bonuses for WNT players are
less. But top tier WNT players receive a guaranteed base salary of $72,000 and other benefits,
while MNT players do not receive these benefits or any salary. See id.
The Charge suggests that a MNT player could, over the course of 20 friendlies, exceed
earnings of $100,000 and thereby out-earn a WNT player who played the same number of
games. See id. XI. But the MNT does not typically even play 20 friendlies each year 10; nor
are individual MNT players selected to participate in anywhere close to every friendly played
each year. Of the 59 players who played for the MNT in 2015, not one played in 20 games and
only 6 played in more than 10 games. See MNT Payroll Detail 2010-2015 (USSF-EEOC0000177). For that reason, it is hardly surprising that the average compensation received by a
MNT player from 2012-2015 is $90,000 less than the average compensation received by a WNT
player during that same period, notwithstanding that players on both teams are charged to
continuously maintain their conditioning and overall health, maintain their skills, travel
nationally and internationally as necessary, and promote a positive image for soccer. Charge
VI.
The suggestion that compensation for WNT players is dwarfed by comparison to MNT
players is particularly untenable with respect to the five players bringing this Charge. After
excluding FIFA World Cup bonusesa special, once-every-four-years payment that is driven by
FIFAs relative allocation of prize money to the Mens and Womens World Cup, see infra at
Part B.1each of the five WNT players to bring this Charge received more compensation from
U.S. Soccer between 2012-2015 than the top five highest-paid players on the MNT.

10

See U.S. MNT Attendance Year-By-Year (last updated Sept. 23, 2015), available at
http://www.ussoccer.com/mens-national-team/records/mnt-attendance-by-year.

May 31, 2016

Page 11

Compensation: WNT Players vs. Five Highest Earning MNT Players

(Not Including World Cup Or NWSL Payments) 11
2012 $

2013 $

2014 $

2015 $ 12

2012-15 $

WNT #1

269,584

84,034

86,850

158,361

598,829

MNT #1

92,100

151,000

44,500

135,063

422,663

WNT #2

269,584

84,034

85,500

158,361

597,479

MNT #2

80,600

109,100

34,000

164,599

388,299

WNT #3

269,584

90,784

85,500

159,711

605,579

MNT #3

180,472

119,600

35,500

60,786

396,358

WNT #4

274,872

88,200

86,850

159,711

609,633

MNT #4

72,000

145,600

44,500

136,813

398,913

WNT #5

282,565

89,434

78,750

159,711

610,460

MNT #5

88,384

148,000

59,500

118,849

414,733

Excluding FIFA-funded World Cup bonuses and NWSL salaries, the WNT players who
brought this suit earned more than $3 million for their participation on the WNT from 20122015, roughly 50% more than the total compensation U.S. Soccer paid to the five highest-paid
MNT players.
Even including FIFA World Cup prize money, the five complaining WNT players earned
a four-year average of $709,396, only 3.8% less than the top five highest-paid men during this
quad, who averaged $737,659.

11

See MNT Payroll Detail 2010-2015 (USSF-EEOC-0000177); WNT Payroll Detail 2010-2015
(USSF-EEOC-0000178).
12

As part of the 2005-2012 and current CBAs, depending on its placement in the Womens
World Cup and the Olympics, the WNT is entitled to compensation for its participation in a postevent Victory Tour. This compensation is distinct from, and in addition to, the FIFA prize
money. Historically, the Victory Tour payments have been paid by U.S. Soccer directly to the
players on the roster for the event. For the 2015 Womens World Cup Victory Tour, the
WNTPA requested that the payments be made to the union. For purposes of this chart, U.S.
Soccer has allocated a proportionate share of the 2015 Victory Tour payments to each of these
players.

May 31, 2016

Page 12

Compensation: WNT Players vs. Five Highest Earning MNT Players

(Including World Cup But Not NWSL Payments) 13
2012 $ 2013 $ 2014 $ 2015 $ 14 2012-15 $
WNT #1
MNT #1
WNT #2
MNT #2
WNT #3
MNT #3
WNT #4
MNT #4
WNT #5
MNT #5

269,584
180,472
269,584
92,100
269,584
80,600
274,872
120,884
282,565
72,000

84,034
119,600
84,034
151,000
90,784
109,100
88,200
140,100
89,434
145,600

101,850
395,920
100,500
366,335
100,500
391,847
101,850
405,209
93,750
372,766

248,361
60,786
248,361
135,063
249,711
164,599
249,711
47,500
249,711
136,813

703,829
756,778
702,479
744,498
710,579
746,146
714,633
713,693
715,460
727,179

When attempting to compare WNT and MNT compensation, the Charge also ignores that
the WNT receives numerous valuable benefits that MNT players do noteven leaving aside
U.S. Soccers payment of all WNT players NWSL salaries. 15 WNT players receive severance
pay, medical insurance, payment despite injury, maternity leave, a relocation allowance, and
childcarenone of which are provided to the MNT as part of its collective bargaining
agreement. Compare WNT CBA, Ex. A, I.O, II.C, II.E, II.F, II.H, II.N (USSF-EEOC0000161 - USSF-EEOC-0000163), with MNT CBA, Ex. A (USSF-EEOC-0000079 - USSFEEOC-0000090). These benefits are not included in the above charts comparing WNT and
MNT compensation. If the value of these benefits is taken into account, not only would it
increase the amount by which the non-FIFA-related compensation for the WNT players exceeds
that of any MNT player, but even including the World Cup payments, the WNT players would
likely be compensated at a higher rate than the highest-paid MNT players.
13

See MNT Payroll Detail 2010-2015 (USSF-EEOC-0000177) and WNT Payroll Detail 20102015 (USSF-EEOC-0000178).
14

For purposes of this chart, U.S. Soccer has allocated a proportionate share of the 2015 Victory
Tour payments to each of these players. Because US Soccer makes these payments to the
Players Association and not directly to the players, see supra n.12, they are not reflected in the
Payroll Detail spreadsheets.
15

Even though the NWSL salaries are not included in the comparative analyses, in some ways
they are relevant to overall compensation. If the NWSL fails, the WNT base salary for the top
tier players goes up from $72,000 to $101,000 per year. See WNT PA MOU 2013 (USSFEEOC-0000167 - USSF-EEOC-0000174). If this additional $29,000 per year were included in
2013-15 compensation, the five WNT players compensation over the past four years would
exceed that of the top MNT players, even including World Cup prize money.

May 31, 2016

Page 13

In short, U.S. Soccer believes that the WNT not only is the highest compensated
womens national soccer team in the world, but its compensation from U.S. Soccer is
comparable to (and in many cases better than) the compensation U.S. Soccer provides to the
MNT.
B.

ANY DIFFERENCES IN THE COMPENSATION PAID THE WNT AND

THE MNT ARE BASED ON FACTORS OTHER THAN GENDER

To the extent that WNT players are compensated differently than MNT players, any
difference does not remotely support a charge of discrimination within the meaning of Title VII
or the Equal Pay Act. Both statutes recognize that it is entirely lawful to compensate male and
female employees differently when those differences are premised on the quantity or quality of
[their revenue] production or any other factor other than sex. 29 U.S.C. 206(d)(iii-iv) (Equal
Pay Act); see also 42 U.S.C. 2000e-2(h) (Title VII). That is precisely the case here. Not only
does the MNT generate significantly more revenue for U.S. Soccer than does the WNT, but the
WNTs collective bargaining agreement includes a specific provision that ensures that the WNT
is paid at least an equal share of the revenue its games generate compared to the MNT. Because
any compensation differences between the MNT and WNT are the product of the greater
quantity of revenue produced by the MNT, or other considerations other than sex, the Charge
does not state a violation of Title VII or the Equal Pay Act.
1.

The MNT Produces Greater Revenue For U.S. Soccer Than The WNT

Although U.S. Soccer is tremendously proud of the growing popularity of womens

soccer and the enormous interest generated by the WNTs recent World Cup success, the MNT
produces substantially more revenue for U.S. Soccer than does the WNT. It is settled law that
paying higher wages to an employee who generates more revenue does not violate Title VII or
the Equal Pay Act.
Mens soccer traditionally has been more popular and more competitive, driving higher
attendance and TV ratings at mens games. From 2008-2015, MNT game revenue totaled
roughly $144 million, almost triple the $53 million generated by WNT game revenue during that
time. 16 Average attendance at MNT games from 2011-15 was 33,471, more than double the
attendance at WNT games during the same period despite comparable marketing by U.S. Soccer.
NT Event Attendance and Viewership Tracking, attached hereto as Exhibit 1. And MNT games,
in the aggregate, support higher ticket prices. Compare FY2017 Budget Summary at USSFEEOC-0000515, with id. at USSF-EEOC-0000516 (noting WNT games are priced between $4050 while MNT games are priced between $50-70).
The marketing, broadcasting, and licensing rights associated with the MNT have likewise
proven substantially more valuable to U.S. Soccer as compared to the same rights associated
with the WNT. Historically, TV ratings for mens games are several times greater than that of
womens games. See Ex. 1, NT Event Attendance and Viewership Tracking. Although the 2015
16

U.S. Soccer is paid by other national federations when the MNT plays abroad, but typically
receives no revenue when the WNT plays outside the country.

May 31, 2016

Page 14

Womens World Cup final produced unprecedented ratings for a single game, 17 the average TV
rating for a MNT game from 2013-2015 was twice that of a WNT game during that period. The
percentage of viewers between the ages of 18 and 49, a key demographic for advertising
purposes, is a full ten percentage points higher for MNT games. Id.
Even during the 2015 Womens World Cup, for instance, Fox Sports generated only
roughly $17 million from sponsorship revenue; during the 2014 Mens World Cup, by contrast,
ESPN generated 30 times that amountor $529 million.18 Mike Shields, Womens World Cup
Draws Strong Advertiser Demand for Fox Sports, Wall St. J. (June 15, 2015),
http://on.wsj.com/1ASkwIi. The disparity worldwide is even greater. 19
Except for its apparel sponsorship from Nike, U.S. Soccer packages its marketing,
broadcasting, and licensing rights and sells those rights collectively to Soccer United Marketing
(SUM). But the rights sold to SUM include all of U.S. Soccers marketing and broadcast
rights and intellectual property, not just the rights to MNT and WNT games. And, although
SUM does not break down how much it values U.S. Soccers intellectual property (e.g., the right
to advertise as an Official Sponsor of U.S. Soccer or as the Official [product] of U.S.
Soccer) relative to its rights to broadcast MNT and WNT games, it stands to reason based on
the market demand outlined above that SUM ascribes significantly more value to the MNT rights
than it does to the WNT rights.

17

Strong viewer interest in the 2015 Womens World Cup finale may impact the commercial
negotiations the next time that U.S. Soccer licenses broadcasting and sponsorship rights that
include WNT games. But as explained, supra at p. 7, the fact that television ratings for the 2015
Womens World Cup finale outperformed expectations does not remotely suggest that the
WNTs collective bargaining agreement was discriminatory ex ante. Historically, mens soccer
has been more popular than womens soccer. See Ex. 1, NT Event Attendance and Viewership
Tracking. Not only was that true in 2005 and 2013 when the last two WNTs collective
bargaining agreements took effect, it remains true today. Even between 2013 and 2015, an
average of 17.28 million United States viewers watched each MNT World Cup game, while an
average of 8.04 million people watched each WNT World Cup game. Id. Average viewership
for any MNT game during that time was 3.18 million, almost double the 1.66 million viewers for
each WNT game. The fact that TV ratings for the Womens World Cup exceeded expectations
is a testament to the fantastic performance of the WNT and to U.S. Soccers continued efforts at
promoting Womens Soccer and the WNT, not evidence that U.S. Soccer acted with
discriminatory intent.
18

And, of course, the greater rights and sponsorship fees generated by FIFA for the Mens World
Cup as compared to the Womens World Cup affect the prize money FIFA allocates to
participants in each event, which U.S. Soccer largely treats as a pass-through to the relevant
team.
19

Importantly, U.S. Soccer does not receive any revenue from the sale of broadcast or
sponsorship rights for the FIFA Mens and Womens World Cups. These events are FIFAowned and, accordingly, all such revenues accrue exclusively to FIFA.

May 31, 2016

Page 15

For all these reasons, U.S. Soccer has reasonably concluded that the MNT generates more
revenue for U.S. Soccer during a typical four-year cycle.
Paying more to an employee who generates more revenue for the employer does not
violate Title VII or the Equal Pay Act. For example, in Byrd v. Ronayne, 61 F.3d 1026 (1st Cir.
1995), the First Circuit rejected a female lawyers discrimination claim because she generated far
less revenue for her firm than the male lawyer she set forth as a comparator. As the court
explained, the substantially greater revenues [the male attorney] generated for the firm afforded
defendants an affirmative defense, under 29 U.S.C. 206(d)(1)(iv) (differences in compensation
based on a factor other than sex). Id. at 1034. Other courts have reached the same result,
affirming that if an employer derives greater benefits from one employee versus another, that
constitutes a non-discriminatory reason for the wages, making any salary differential the product
of a factor other than sex. Hein v. Or. Coll. of Educ., 718 F.2d 910, 916 (9th Cir. 1983); see
also Cullen v. Ind. Univ. Bd. of Trs., 338 F.3d 693, 703 (7th Cir. 2003) (An employer may
provide different wage rates for the sale or production of products based upon the relative
economic benefit or profitability of the product. (citation omitted)); Bence v. Detroit Health
Corp., 712 F.2d 1024, 1029 (6th Cir. 1983) (There is no discrimination if two employees
receive the same pay rate, but one receives more total compensation because he or she produces
more.); Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1363 (10th Cir. 1997) (justifying
differences in pay based on differences in revenue); Hodgson v. Robert Hall Clothes, Inc., 473
F.2d 589, 594 (3d Cir. 1973) ([E]conomic benefits to an employer can justify a wage
differential). The EEOC itself recognizes that an employer may be able to justify a
compensation disparity by proving that the higher paid employee generates more revenue for the
employer than the lower paid employee. EEOC Compliance Manual 10-IV (F)(2)(f).
The once-every-four-year bonuses that MNT and WNT players receive for participating
in the Mens and Womens World Cup are the clearest manifestation of this principle. Although
the five WNT players that brought this Charge have received more compensation over the last
four years than the five highest-paid MNT players during that same period, excluding World Cup
bonuses, see supra at pp. 10-11, the Charge criticizes the fact that MNT players received greater
bonuses for reaching the Round of 16 in the 2014 FIFA Mens World Cup than the WNT players
received for winning the 2015 FIFA Womens World Cup ($9 million vs. $2 million).
See Charge XIII. Again, however, the prize money that participants in the FIFA Mens and
Womens World Cup receive is set by FIFA, not U.S. Soccer, based on the commercial value of
those two events to FIFA. U.S. Soccer largely passes through FIFAs prize money payments to
the MNT and WNT; FIFAs choice to allocate more prize money to participants in the Mens
World Cup rather than the Womens World Cup is the primary driver of what U.S. Soccer pays
the MNT and the WNT for their participation in the World Cup. See MNT CBA 2010-2018,
Ex. A, VI.J (USSF-EEOC-0000084). There is nothing discriminatory in U.S. Soccers
decision to pass through the different prize money it receives from participating in the Mens and
Womens World Cups to the teams that generated that revenue.
Although U.S. Soccer has been a strong advocate for expanding the prize money
available to Womens World Cup participants, it appreciates that the allocation of prize money
reflects the substantially different market for the Mens and Womens World Cup. The 2014
Mens World Cup generated nearly $5 billion in revenue to FIFA. See FIFA Financial Report

May 31, 2016

Page 16

2014 at 37 (May 28-29, 2015), http://resources.fifa.com/mm/document/affederation/

administration/02/56/80/39/fr2014weben_neutral.pdf; Tony Manfred, FIFA Made An Insane
Amount Of Money Off Of Brazils $15 Billion World Cup, Bus. Insider (Mar. 20, 2015),
available at http://www.businessinsider.com/fifa-brazil-world-cup-revenue-2015-3. That figure
is 50-100 times what the 2015 Womens World Cup generated to FIFA, owing to the
substantially greater interest in mens soccer worldwide. Compare, e.g., Mike Collett, Average
[Mens] World Cup Attendance Is Second Highest Ever, Reuters (July 6, 2014), available at
http://www.reuters.com/article/us-soccer-world-attendance-idUSKBN0FB0LF20140706 (noting
average game attendance of 52,762), with Kevin Baxter, Womens World Cup Attendance Is
Lacking So Far, L.A. Times (June 9, 2015), available at http://www.latimes.com/
sports/soccer/la-sp-world-cup-notes-20150610-story.html (noting few sellouts and attendance
below 12,000 at one match despite reduction of ticket prices to $5). Indeed, the prize money set
aside for Womens World Cup participants represents a higher share of overall World Cup
revenue generated than the prize money set aside for Mens World Cup participants.
Title VII and the EPA are not designed to cure market-driven differences of this kind.
See, e.g., Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1322 (9th Cir. 1994) (Unequal wages that
reflect market conditions of supply and demand are not prohibited by the EPA.); Intl Union,
United Auto., Aerospace & Agric. Implement Workers of Am. v. Michigan, 886 F.2d 766, 769
(6th Cir. 1989) (Mere failure to rectify traditional wage disparities that exist in the marketplace
is not actionable.); Christensen v. Iowa, 563 F.2d 353, 355-56 (8th Cir. 1977) (We do not
interpret Title VII as requiring an employer to ignore the market in setting wage rates.). Just as
the fact that NBA players are paid more than WNBA players does not amount to a Title VII or
EPA violation, the provision of greater compensation to MNT versus WNT playerseven if
truewould not state a violation of Title VII or the Equal Pay Act.
The Charge implies that revenue cannot drive the differences in U.S. Soccers
compensation to the MNT and WNT, because U.S. Soccers projected Fiscal Year 2017 budget
(covering April 2016-March 2017) forecasts greater revenue from the WNT events than from
MNT events. Charge IV. But because international soccer competition reflects a four-year
cycle, looking at any one year in isolation is misleading. Moreover, the forecast assumes that the
WNT will win a gold medal at the Summer Olympics, participate in a lucrative Olympic victory
tour thereafter, and as a result play 29 games during the fiscal year as compared to the MNTs
13. Depending on the outcome of the Olympics, that may not come to pass. Even if the WNT
proves successful in Brazil, as U.S. Soccer certainly hopes it does, those facts would not change
that the MNTs games (even setting aside licensing and sponsorship rights) are still expected to
generate greater revenue for U.S. Soccer over the course of the current four-year cycle. See U.S.
Soccer FY17 Budget at 17.
2.

The Inclusion Of The Pay Equity Clause In The WNTs Collective

Bargaining Agreement Is A Total Defense To The Charge

The pay equity clause included in the WNTs collective bargaining agreement also
presents a total defense to the Charge. As Julie Foudyformer WNT co-captain and a member
of the National Soccer Hall of Famerecently explained, the WNT specifically negotiated a
clause in their CBA to address the very issue that the current players are voicing in this

May 31, 2016

Page 17

Charge. Julie Foudy, Why isnt the USWNT using its fair-pay clause?, ESPN (Apr. 4, 2016),
http://espn.go.com/espnw/voices/article/15131346/why-uswnt-using-fair-pay-clause. Under that
provision, which Foudy characterizes as the CBAs fair pay clause, U.S. Soccer must always
pay the WNT at least the same share of WNT-generated revenue as the MNT receives from
MNT-generated revenue. WNT CBA 2005-2012, Ex. A, VIX (USSF-EEOC-0000166). In the
event that the MNT receives a higher share of the game revenue it produces in any given year,
U.S. Soccer must make a lump-sum payment to the WNT to make the ratio equivalent. Id.
The fundamental purpose of the pay equity clause was to ensure that the WNT received
an equivalent share of the revenue its games produced as did the MNT. By guaranteeing that the
WNTs comparative compensation is tied to the amount of game revenue the WNT and MNT
produce, the pay equity clause provides certainty that compensation provided the WNT is
derived from the quantity of the revenue the team actually produces. 20 Title VII and the Equal
Pay Act recognize that a system that compensates employees on that basis does not violate either
statute. 29 U.S.C. 206(d)(iii)-(iv) (Equal Pay Act); see also 42 U.S.C. 2000e-2(h) (Title VII).
In any event, the comparison required by the pay equity clause only underscores that U.S.
Soccer is not discriminating against the WNT. In every year since the pay equity clause took
effect in 2005, U.S. Soccer paid the WNT a higher share of the revenue generated by its games
than the share it paid the MNT of the revenue generated by its games. Compensation Analysis at
USSF-EEOC-0000179. For example, from 2008-2015 the WNT received average compensation
equivalent to 51.2% of the revenue its games generated, while the MNT received only 26.9% of
the revenue its games generated. Id. During many of those years, moreover, the WNT was paid
a share several times that paid to the MNT in 2009, for instance, the MNTs compensation
amounted to a 38% share of its revenues, while the WNTs compensation amounted to a 225.6%
share of its revenues. Id.
United States MNT

20

United States WNT

Total Game
Revenue

Total
Comp.

Comp. /
Revenue

Total Game
Revenue

Total
Comp.

Comp. /
Revenue

2008

$11,785,240

$1,982,412

17%

$2,783,055

$4,312,645

155%

2009

$11,233,873

$4,284,984

38%

$681,157

$1,536,565

226%

The pay equity clause is calculated on the basis of revenues generated directly by WNT and
MNT games; because SUM does not break out the value it ascribes to the MNTs versus WNTs
rights, it is impossible to assess what percentage of the revenue U.S. Soccer receives as a result
of marketing, broadcasting, or licensing rights is attributable to each team. In light of the far
greater sponsorship revenue associated with the Mens World Cup, see supra at Part B.1, it
stands to reason that the majority of revenue U.S. Soccer receives via SUM is attributable to the
MNT.

May 31, 2016

Page 18

2010

$25,916,548

$7,859,345

30%

$1,232,047

$1,764,463

143%

2011

$16,805,328

$2,598,363

16%

$3,951,486

$2,679,537

68%

2012

$10,729,151

$2,798,436

26%

$9,187,403

$5,469,318

60%

2013

$15,886,891

$5,053,229

32%

$6,540,734

$2,730,770

42%

2014

$29,856,482

$9,419,059

32%

$4,986,679

$2,383,441

48%

2015

$21,328,718

$4,668,229

22%

$23,658,288 $6,283,949

27%

27%

$53,020,849 $27,160,687 51%

2008- $143,542,231 $38,664,056

2015

Notwithstanding that the WNT generates a smaller share of U.S. Soccers revenue, U.S.
Soccer continues to pay comparable compensation to core WNT and MNT players. In the
aggregate, moreover, the WNT is paid a substantially higher share of the revenue it generates as
compared to the MNT. Such facts are incompatible with the Charges claim of discrimination; to
the contrary, they underline U.S. Soccers strong and ongoing support for the WNT.
3.

Any Other Differences In Compensation Largely Reflect The WNTs

Preference For A Different Compensation Model And Other NonDiscriminatory Factors

The remaining allegations contained in the Complaint do not state a violation of Title VII
or the Equal Pay Act.
a.

Friendlies

The Charge complains that WNT players receive less compensation than MNT players on
a per-game basis. As already explained, supra at pp. 8-9, that charge ignores that the WNTPA
and its members elected during the collective bargaining negotiations to eschew a pay-to-play
system for one that reduces downside risk and allocates the bulk of players compensation to a
guaranteed base salary and benefits. Top tier WNT players receive a base salary of $72,000 plus
other benefits, while MNT players receive no base salary at all. Few MNT players are invited to
enough friendlies to even make it possible to out-earn WNT players. Indeed, when World Cup
bonuses are excluded, each of the five WNT players to bring this discrimination charge received
more compensation from U.S. Soccer from 2012-2015 than the top five highest-paid MNT

May 31, 2016

Page 19

playerseven setting aside their greater benefits and the additional compensation U.S. Soccer
pays them for participating in the National Womens Soccer League. 21
b.

Olympics

The Charge alleges that WNT and MNT players each earn $15,000 for qualifying for the
Olympic team and another $15,000 each for making the roster. Charge XIV. That simply is
inaccurate. Not only are most MNT players ineligible for the Olympic team, but mens players
are not guaranteed to receive anything for participating in the Olympics other than the significant
honor of representing their country and the opportunity to demonstrate their skills on a world
stage. See MNT CBA 2010-2018, Ex. A (USSF-EEOC-0000079 - USSF-EEOC-0000090). 22
The fact that WNT players receive greater compensation for participation in the Olympics
hardly supports a claim of discrimination.
In any event, while the Summer Olympics is considered the second most important
international tournament in womens soccer after the Womens World Cup, the same is not true
for mens Olympics soccer. Interest in Olympic soccer is especially low for the mens
tournament, which is played with under-23 teams. Three spots are reserved for older players, but
most clubs refuse to release their top stars for the competition. See AP, Soccer Could Be One of
Main Attractions at 2016 Rio Olympics, USA Today (May 15, 2015), available at
http://www.usatoday.com/story/sports/olympics/2015/05/15/soccer-could-be-one-of-mainattractions-at-2016-rio-olympics/27355799/. The Charges claim that U.S. Soccers payments to
WNT Olympians highlights the unjustified and discriminatory animus underlying its decision to
pay women differently than men in nearly all other respects therefore is totally unfounded.
Charge XIV.

21

Even if the WNT players did not receive comparable compensation under this arrangement,
courts recognize that an employee cannot complain when he or she negotiates to remove herself
from the compensation model applied to his or her peers, but then earns less income under the
arrangement which he or she negotiated for. See, e.g., Diamond v. T. Rowe Price Assocs., Inc.,
852 F. Supp. 372, 393-94 (D. Md. 1994) (rejecting claim that employers failure to award female
employee stock options was discriminatory because [h]aving removed herself from the standard
compensation scheme by proposing that she receive little or no annual bonus, [the employee]
cannot now complain that the inherent risk in her performance-based agreements constituted
unequal pay).
22

Since and including the 2004 Olympics, in years in which the United States has qualified to
participate in the Mens Soccer competition at the Olympics, players have received
reimbursement for expenses and a small per diem. In addition, for the Olympic qualification
process players have sometimes received a one-time, discretionary payment ranging from $1,500
to $2,500. That payment, however, is not guaranteed by contract, is totally discretionary, and is
dwarfed by the compensation guaranteed to the WNT.

May 31, 2016

Page 20

c.

Other Compensation

The Charge also complains about differences in so-called Other Compensation (see
Charge XV), such as per diems and the like. These, however, largely are the product of the
fact that the MNT CBA and WNT CBA were negotiated at different times. Per diems used to be
identical between the MNT and WNT. Compare MNT CBA 2003-2010, Ex. A, XII (USSFEEOC-0000040), with WNT CBA 2005-2012, Ex. A, VI (USSF-EEOC-0000165). Under their
current collective bargaining agreement, the MNT per diems rose in 2015 to an amount which
exceeded the per diem the WNTPA negotiated in 2013 (which was then equivalent to the MNTs
per diem). Compare MNT CBA 2003-2010, Ex. A, XII (USSF-EEOC-0000040), with
MNT CBA 2010-2018, Ex. A, XI (USSF-EEOC-0000086). The WNTs per diems likely will
be made equivalent to the MNTs under the next WNT collective bargaining agreement. The
parties have already discussed including a provision to ensure parity going forward. Although it
is subject to further negotiation and final agreement, the current proposal submitted by USSF
includes a proposal for comparable per diems.
III.

CONCLUSION

U.S. Soccer is the most supportive national federation of womens soccer in the world,
and deserves credit for working with the WNT to drive the popularity and growth of womens
soccer in the United States over the last 25 years. The suggestion that U.S. Soccer has been
anything other than strongly supportive of the WNT is deeply disappointing and inaccurate. We
doubt that many, if any, other womens national teams around the world are compensated
comparably toif not better thantheir male counterparts, or that many national federations
have been willing to agree to pay equity clauses to ensure that womens national team players are
compensated fairly as the revenue their games produce grows.
Because the allegations on which the Charge relies do not remotely suggest that U.S.
Soccer is acting with a discriminatory motive, or otherwise state a violation of Title VII or the
Equal Pay Act, the Charge should be dismissed.
Sincerely yours,

Kathryn H. Ruemmler
of LATHAM & WATKINS LLP