Brian C. KONKEL'S Article Entitled, "Women's soccer suit looks to level playing field with men," was published in The Chicago Daily Law Bulletin.

Since the mid-20th century, federal laws have been in place with the purpose and intent of ensuring gender equality. Despite numerous advances since that time, there are still huge disparities at all levels.

A new lawsuit brought by several members of the U.S. Women’s National Soccer Team against the U.S. Soccer Federation seeks to highlight those issues and to correct ongoing inequality.

The lawsuit, filed in March in the U.S. District Court, is sparked by the long-running disparity in pay equity among other things. In total, 28 members of the women’s team are named as plaintiffs in the suit, including stars such as Alex Morgan, Carli Lloyd and Megan Rapinoe. The suit includes claims brought under Title VII of the Civil Rights Act and the Equal Pay Act.

The players’ class-action suit portrays the soccer federation as discriminating not just on the basis of pay, but also points to substandard travel accommodations and unsafe training conditions.

The lawsuit also alleges the federation has allocated fewer resources to promoting women’s games, including creating conditions that restrict crowd size.

The timing of the suit was clearly targeted and well-strategized, falling on International Women’s Day and at the start of the World Cup. The attention and leverage are at their highest surrounding this large event for the players’ side.

Team members involved in the suit argue that they are required to play more games than the men’s team, which they win more of, and yet still are paid significantly less. According to the complaint, women’s team players earn a maximum of $4,950 per game for a friendly match, whereas, their male counterparts earn an average of $13,166 per match.

This disparity is despite the fact that the men’s team has never won a major international tournament and failed to qualify for the most recent World Cup, while the women’s team is currently ranked No. 1 in the world and has won the World Cup three times and the Olympic gold medal four times.

Lower pay is difficult to reconcile with the team’s recent success. In addition to the foregoing, the women have garnered monstrous TV ratings, with the 2015 World Cup final hosting 23 million viewers, the most viewed soccer game in U.S. television history.

This success has resulted in substantial profits for the federation, which is held by the nonprofit organization and unavailable to their athletes.

The pay disparity is not unique to the domestic governing body, the federation. One of the biggest differences in pay are the bonuses the teams receive for participating in the World Cup. The bonus pool for the 32-team men’s tournament is $400 million, whereas, the bonus pool is only $30 million for the 24-team women’s competition.

These pools are established by Federation Internationale de Football Association, or FIFA, the world governing body for the sport. FIFA intends to increase the bonuses for women this summer, but the sum will still be a fraction of what the men receive.

The lawsuit is not the first time female players have taken legal action to fight discrimination. In 2016, some of the players including Hope Solo, and four of the current plaintiffs filed a charge of discrimination with the Equal Employment Opportunity Commission, and just one month prior to the suit, the EEOC issued letters giving the plaintiffs the right to sue.

The complaint contains data demonstrating that the wide pay disparity constitutes an intent to violate the Equal Pay Act, which requires a lawful explanation for differing wage rates between men and women.

The complaint asks for financial relief to cure the data that cannot possibly be explained as correct, reflecting back pay, front pay, the financial value of lost job benefits, punitive damages against U.S. Soccer and attorney fees.

The merits of the suit, however, are more complex than the raw data would suggest. In April 2017, the women’s team and the soccer federation agreed to a new collective bargaining agreement.

The agreement provided bargained for pay raises and improved working conditions. Further, there are different payment structures in place for men and women, with men only being paid if they make the team, but women receiving salaries that are supplemented by bonuses.

For its, part, the federation has categorically denied wrongdoing and stands by the collective bargaining agreement, pointing to the fundamentally and structurally different pay structures between men and women.

In determining whether violations have occurred, the court will consider a number of factors in assessing explanations for wage differences between women and men in similar positions, including variations in skills, experiences and seniority.

The main determination is whether male and female employees of matching employment backgrounds are paid similarly for equivalent work under analogous working conditions.

The federation may cite legitimate, job-related factors that may explain variances that the plaintiffs portray as discriminatory. In other words, the federation will need to point to “market realities” to explain the disparities, including the fact that the men’s World Cup generates an estimated $6 billion in revenue, whereas the women’s tournament only brings in an estimated $131 million.

The players will assuredly point to the ever-expanding popularity and profitability of the sport, and draw a causal relationship to the sustained success of the women’s team.

The plaintiffs will also likely need to establish, through discovery, that the revenue disparity is due to artificial and manufactured depression of the market. That is, that the federation is actually responsible for the disparity, not the market.

While there are hurdles, and proving discrimination is difficult, this case, at least facially, appears strong.

There are facts in their favor, to be sure. For example, in 2017, the then president of Soccer United Marketing, the agency charged with promoting the national teams, stated that the federation has “taken the [women’s team] for granted” and failed to promote the team on par with the men’s team.

Even if the suit is not successful, the hope, for the women plaintiffs, is that the case will sway public perception in their favor.

Team Members: