October 3, 2019 / 8:09 PM / 11 days ago

U.S. Soccer asserts Spokeo to block class certification in unequal pay case. Clever or ‘fraud’?

(Reuters) - It’s always a surprise to run across old friends (which is how I think of cases I've covered), in unfamiliar places, so I felt a little buzz of excitement when I began reading a brief filed this week in federal court in Los Angeles. The U.S. Soccer Federation is opposing the certification of a class of women who have played for the U.S. Women’s National Team since 2015. The women, led by stars Alex Morgan, Carli Lloyd, Megan Rapinoe and Becky Sauerbrunn, allege that the soccer federation systematically discriminates against female players, with unequal pay policies and employment conditions. But according to the soccer federation’s lawyers at Seyfarth Shaw, the class can’t be certified because the proposed class representatives don’t have constitutional standing under the U.S. Supreme Court’s 2016 decision in Spokeo v. Robins.

Spokeo in a gender discrimination case? As you know, the court’s decision is usually invoked in cases involving violations of consumer laws that include a private right of action. Defendants in these class actions argue that no one has suffered a tangible, concrete injury when, say, a bank fails to post adequate notices about ATM fees or a credit reporting agency’s consent form is confusing. But getting paid less than your male counterparts to play soccer for the U.S. team would seem to be a concrete injury.

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But according to the U.S. soccer federation, the women who want to serve as class reps did not actually make less than men on the national team. Each of them, the brief contended, made more money in every year since 2015 than the highest-paid player on the U.S. men’s team. Morgan, Lloyd, Rapinoe and Sauerbrunn haven’t been injured by U.S. soccer’s pay policies, the brief said. They’ve all pulled down more than a million dollars since 2014 – more than $1.5 million apiece if you count their earnings from the National Women’s Soccer League as well as their pay from playing for the U.S. team. On the men’s side, meanwhile, the total pay for the highest earner between 2014 and 2019 was about $994,000 – less than any of the women proposed as a class representative.

Under Spokeo, the brief argued, plaintiffs cannot win class certification by speculating about the allegedly disparate impact of the admittedly different pay schemes for male and female members of the U.S. national team. They have to show they were actually injured by the policies at the heart of their suit, the brief said. Their income shows they haven’t suffered, according to the U.S. federation, so they don’t have standing and their class can’t be certified.

Interesting, right? But completely misguided, according to Jeffrey Kessler of Winston & Strawn, who represents the women soccer players suing the U.S. federation. “This theory is doomed on so many levels,” Kessler told me. “The entire analysis is a fraud.”

If the soccer federation were right that female stars who out-earned male soccer players do not have standing, the class could swap in different representatives who earned less, Kessler said. But more fundamentally, he said, the federation’s brief opposing class certification misunderstands the essence of the women’s case.

He offered a useful analogy. Imagine a scenario in which women were promised a 5 percent sales commission and men were promised 15 percent. It would be possible for a woman who worked much harder than a male colleague and was better at the job to earn just as much or more than the man, especially if she also took a second job. But the end result wouldn’t mean the starting point was fair. So too with the women’s soccer team, Kessler said: The proposed class representatives made more money than their male counterparts because they played far more games – and because they won.

“If they had been paid under the men’s deal, they would have made vastly more,” Kessler said. “The entire premise” of the brief opposing class certification “is ridiculous,” he said.

I emailed federation lawyers Ellen McLaughlin and Kristen Peters of Seyfarth for a response to Kessler’s comments about their theory, including his description of it as a “fraud.” I didn’t hear back.

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