In addition to comparing themselves to male players performing equal work, the WNT also must establish that they perform their work in the same "establishment" as the male players. If the WNT cannot show that the work is performed in the same establishment, then they must automatically lose their EPA claim. As USSF has pointed out, the term "establishment" generally refers to a particular physical place of business. Two or more physical places of business can constitute the same "establishment" under "unusual circumstances," such as where a central administrative unit hires all employees, sets wages, and assigns the locations of employment; employees frequently interchange work locations; and daily duties are virtually identical and performed under similar working conditions.
The WNT tries to fit its case within the exception to the same-physical-place rule:
Here, USSF is a "single establishment" because it is undisputed that it has centralized control over WNT and MNT job descriptions, budgeting, planning, scheduling, event marketing, and decisions relating to licensing and broadcasting. With few exceptions (such as coaches and press officers), the majority of USSF employees perform work for both the WNT and the MNT. USSF's central administration also makes decisions about game venues, hotels, travel, meals and other terms of employment for both teams as part of the same process. And, as described in more detail below, the MNT and WNT are both promoted by Soccer United Marketing ("SUM"), the for-profit marketing arm of Major League Soccer, in a manner such that a breakdown of broadcast and sponsorship revenues between the two teams "can’t be done."In my view, the primary flaw in the WNT's argument is that they focus on USSF generally rather than on the WNT and MNT specifically. The WNT can only prevail if female soccer players are performing their work in the same establishment as male soccer players. And it is clear that they are not. Despite USSF's centralized control over both the WNT and MNT, they are completely segregated. Male players can never switch to the WNT, and female players can never switch to the MNT. And, of course, male players only play against other male players, and female players only play against other female players. Even if most USSF employees perform work for both the WNT and MNT, that says nothing about the work performed by the members of the WNT and MNT themselves.
The WNT has largely litigated their equal pay suit in the media, and the perceived unfairness of paying female soccer players less than male soccer players has made it easy for the WNT to garner public sympathy, regardless of the strengths of their legal arguments. To be sure, sexist attitudes and misogyny may play a role in the lower wages of female athletes. But the scope of the EPA is limited, and given the complete segregation between female and male soccer players, the NWT's EPA claim must fail.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.