I completely disagree with your analysis.As I said earlier, the Equal Pay Act claim was always a weak one for the reasons you state. The elements of that claim do not fit well for their situation. That is not an argument I am making. The Title VII claim is the better one, although it doesn’t seem like the WNT lawyers understood that as early as they should have. It makes sense that they thought the EPA claim would be the better one because they certainly believed (as it turns out wrongly) that the women made less per game and that this would be a really simple and straightforward slam dunk because that would only require the adding up payments and then dividing it by games. You can see the mistake the WNT lawyers made very clearly when you look at their experts and the focus of their reports. But the Title VII claim requires a lot more detailed expert analysis and requires dragging in advertisers, which is often hard to do and risks killing the golden goose. They failed to do that work, and have at least temporarily paid the price for it.
Your conclusion that you believe the CBA did not violate their civil rights is certainly your opinion and you are entitled to that. But that does not mean the WNT are stuck with it because your opinion is that it’s fair enough. It seems that you are now saying you believe the CBA is fair, which is a point that merits legitimate discussion. But that is different than the argument you and others were making earlier, which is that it doesn’t matter whether the CBA discriminates against the WNT, they’re stuck with it because that’s what they agreed to. That latter argument is unequivocally b.s. and wrong. It’s just an excuse to avoid having to address the real issue, which is whether the terms are discriminatory and whether USSF was able to use its superior bargaining position over the WNT compared to the MNT to negotiate those deals by virtue of the fact that they are women. Because things start to go downhill fast for ya’ll when you do that. Even the court cited admissions by USSF in that regard that are very damaging.
Because reasonable minds may differ as you concede, that pretty much sums up why this case should go to a jury. Regardless, whether the WNT can fit their square facts into the round hole of an Equal Pay Act claim ignores the fundamental moral issue, which is whether the women should receive much more money than they currently do relative to the men, as it is undisputed that that they are responsible for far more of USSF’s profit.
"Reasonable minds can look at the negotiations differently." Reasonable minds could not look at the fact that the women are paid a salary, have a deal with less risk in favor of guaranteed compensation and were actually paid more (during the relevant period) any differently, that would be unreasonable. These facts are undisputed and fatal to both the EPA and Title VII claims.
But let's say for the sake of argument that the WNT was actually paid less because they didn't make their bonus money OR the USMNT made their bonus money. Let's pretend the WNT made a prima facia case under Title IV and the EPA. They still lose their compensation claim, which is the meat of their suit.
There is no dispute that the MNT is compensated using an "incentive system." There is also no dispute that the MNT does not receive a salary and their compensation is based largely on participation in camps, games and wining tournaments.
Under both the EPA and Title VII the law requires the discriminatory conduct to be viewed through a historical lens ... what were the facts being relied upon to justify the disparate pay the years leading up to 2011/12. It would be improper to impute today's facts or arguments to the 2012 CBA. At the time that the 2011/12 CBA's was negotiated, the USMNT objectively brought in more revenue to the USSF. The WNT had just come in 2nd in the 2011 WC, and FIFA was paying a total of $5.8M in prize money, with the winner receiving $1M. The USWNT generated much less in prize money, as well as advertising and marketing dollars.
Here, the Federation had really good facts on their side.
Under TItle VII and the EPA we look at all compensation. Starting at "base compensation" and then "non base compensation."
Base Compensation. Women receive $100k salary and about $65k for NWSL, Men receive $0. No Discrimination against women ... arguably discrimination against MNT.
Non-Base Compensation. We are going to have to figure out a discounted value for the $165k of base compensation plus benefits paid to the women, which is a big problem for the WNT. And then see if the discounted "bonus" structure is objectively fair using 2011/12 facts.
While figuring out the discount value of the guaranteed commission, we nonetheless have to recognize that an employer can justify a compensation disparity by proving that the higher paid employee generates more revenue for the employer than the lower paid employee. See, e.g., Byrd v. Ronayne, 61 F.3d 1026, 1034 (1st Cir. 1995) (higher compensation for male attorney justified because he generated substantially greater revenue for law firm). But, we need to do this with facts from the time and not today's facts.
Title VII adopts the EPA's four affirmative defenses, which provide a sex-based compensation difference in substantially equal jobs is justified if it is based on:
- a seniority system;
- a merit system;
- a system which measures earnings by quantity or quality of production ("incentive system"); or
- any other factor other than sex.
The other kicker is that under Title VII, they are suing only 1 of the 2 parties that allegedly wronged them. An employer's assertion that a compensation differential is attributable to a collective bargaining agreement does not constitute a defense under the EPA. If the union contributed to the creation of a compensation differential, the union should be added as a respondent. The EPA specifically provides that no labor organization "shall cause or attempt to cause" a covered employer to violate the statute. 29 U.S.C. 206(d)(2). By asking for a salary and and NWSL bonus, the Players Association opened the door to discounted bonuses and contributed to the potential compensation differential. Looks like the USWNT Players Association is going to get dragged into a lawsuit by its members.
Fast forward to the 2016/17 CBA, the Player's Association received some additional concessions from the Federation, but the facts in 2016/17 must be used, not the 2019 circumstances.
The payment of guaranteed compensation is simply fatal to their claims under Title VII and the EPA, especially because the bonuses are tied to "quantity and quality" which are affirmative defenses under both the EPA and Title VII.
EDIT: I don't believe I ever stated this: "But that is different than the argument you and others were making earlier, which is that it doesn’t matter whether the CBA discriminates against the WNT, they’re stuck with it because that’s what they agreed to." My position has always been the guaranteed compensation negotiated in the 2012 and 2017 CBA's created a different deal that was non discriminatory on its face (at least to the WNT) and is fatal to the claims because the USWNT traded risk for certainty.